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CLM Features Fernandez Article Examining the Impact of Connecticut Smartphone Policies on Cyberbullying Litigation
September 1, 2025 - CLM Magazine
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Fernandez, Friedberg and Selmeci Extract Plastic Surgeon from Web of Progressive Diagnoses
People: Emily L. Fernandez, Alan B. Friedberg and Judy C. Selmeci
Fernandez and Peticca Defeat Prominent Medical Malpractice Firm in Alleged Failure to Diagnose and Treat Biliary Atresia
People: Emily L. Fernandez and Christopher J. Peticca
Fernandez, Peticca & Holland Obtain Dismissal in Nursing Home Wrongful Death COVID-19 Immunity Case
People: Emily L. Fernandez, Christopher J. Peticca and Nicole Holland
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Fernandez, Peticca & Holland Obtain Dismissal in Nursing Home Wrongful Death COVID-19 Immunity Case
Emily Fernandez (Partner-White Plains, NY), Christopher Peticca (Associate-White Plains, NY), and Nicole Holland (Of Counsel-White Plains, NY) obtained dismissal of a wrongful death case on behalf of nursing home client based on COVID-19 immunity pursuant to the EDTPA. The action involved claims of medical malpractice and nursing home negligence in the care and treatment rendered to the plaintiff’s decedent allegedly resulting in COVID-19 infection and death. We drafted a motion to dismiss arguing that the medical records and policies implemented by the facility in response to the COVID-19 pandemic established that the decedent’s care was impacted by the pandemic, thus triggering immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA). The motion further argued that no exception to the EDTPA applied because the plaintiff failed to properly plead allegations of gross negligence, recklessness, and willfulness, as such claims were conclusory and not sufficiently distinct from the underlying negligence claims. In opposition, the plaintiff argued that we failed to conclusively establish whether the decedent’s care was in fact impacted by the pandemic and that further discovery was needed to meet that burden. The plaintiff also argued that claims of gross negligence, recklessness, and willfulness provided an exception for the EDTPA and required the motion to be denied. However, on reply, based in part on an analysis of the same case law that plaintiff submitted in opposition, we established that plaintiff’s argument was flawed and that we had indeed met the standard for EDTPA immunity in a nursing home negligence case. Specifically, we established that the plaintiff’s conclusory claims of recklessness were insufficient to provide an exception to the EDTPA and that medical records and relevant COVID-19-related policies proved that the treatment at issue was impacted by the pandemic. After oral argument on the motion in Supreme Court, Kings County, the case was dismissed in its entirety.
Emily L. Fernandez, Christopher J. Peticca and Nicole Holland
Fernandez and Peticca Defeat Prominent Medical Malpractice Firm in Alleged Failure to Diagnose and Treat Biliary Atresia
Emily Fernandez (Partner-White Plains, NY) and Christopher Peticca (Associate-White Plains, NY) obtained complete dismissal on a motion for summary judgment in Westchester County Supreme Court on behalf of their client hospital and two treating pediatric hospitalists. The plaintiff claimed that we prematurely discharged a jaundiced infant with a direct-to-total bilirubin ratio greater than 15% in violation of the standard of care and the hospital’s policy. Plaintiff demanded $8 million, claiming the alleged departures led to a delayed Kasai procedure, multiple interventional radiology procedures, a liver transplant, developmental delay, and other sequela. Emily and Chris established that the standard of care requires a repeat bilirubin test only when the ratio is greater than 20%, and that the repeat test should not, in any event, be done immediately owing to the pathophysiology of an infant’s liver processes. They argued that the plaintiff failed to refute the standard of care for repeat testing and that plaintiff’s expert affirmation was speculative and therefore insufficient to raise a triable issue of fact. Ultimately, the court found that plaintiff’s expert did not adequately refute that discharging the infant for retesting in an outpatient setting was consistent with the standard of care. The judge also held that plaintiff’s expert failed to opine that the purported failure to perform an in-patient cholestasis work-up and the purported failure to communicate directly with the infant’s pediatrician proximately changed the outcome, so the plaintiff failed to raise a genuine issue of fact as to those claims. The codefendant pediatricians remain in the case, as their motion for summary judgment was denied.
Emily L. Fernandez and Christopher J. Peticca
Fernandez, Friedberg and Selmeci Extract Plastic Surgeon from Web of Progressive Diagnoses
Emily L. Fernandez (Partner-White Plains, NY), Alan B. Friedberg (Senior Counsel-White Plains, NY) and Judy Selmeci (Partner-New York, NY) obtained dismissal of a complaint, alleging permanent vision loss, orbit deformity, chronic headaches, impairment in ADLS and other sequela, in the NYS Appellate Division, Second Department, reversing the Westchester Supreme Court’s denial of our motion for summary judgment in a medical malpractice case that was scheduled for trial. The plaintiff, a then 32-year-old woman with four children, sought treatment at a non-party emergency room on 3/10/16, reporting she fainted and hit her face, injuring her right eye and causing facial fracture. A CT scan raised suspicion for entrapment of the rectus muscle from the fracture, but the ER doctor documented extraocular movement intact (EMOI). Plaintiff was referred to our client, a plastic surgeon at our hospital’s plastic surgery clinic.
1. On 3/15/16, our client determined the plaintiff had EOMI and noted no surgical intervention at that time. Plaintiff was instructed to return in one week.
2. On 3/22/16, the plaintiff reported doing better with continued but improved limitation of movement on extreme right-eye lateral gaze. Plaintiff was permitted to return to work and instructed to avoid heavy lifting, and instructed to return in one week.
3. Neither our client nor the clinic has records for the plaintiff after 3/22/16.
4. On 4/20/16, plaintiff reported new symptoms to her internist, who referred her to an ophthalmologist.
5. At the 6/8/16 ophthalmology visit, plaintiff was referred to an oculoplastic surgeon, who reviewed the 3/10/16 CT and opined the right medial rectus muscle appeared caught on right medial orbital wall fracture.
6. On 9/2/16, the plaintiff underwent surgery, which documented a defect in abduction on forced duction testing. A titanium implant and microplate screws were placed. On follow-up on 10/20/16, plaintiff continued to have diplopia and right abduction deficit.
Our team’s summary judgment motion was denied by Judge Alexandra Murphy, Westchester County Supreme Court, based on an alleged issue of fact raised in the affidavit of plaintiff’s plastic surgery expert, based on the 3/10/16 CT, our client should have known plaintiff would suffer muscle entrapment and that our client abandoned plaintiff. The Second Department, in reversing Judge Murphy and granting summary judgment on all claims, agreed with our argument that plaintiff’s expert’s opinions were conclusory, speculative and unsupported by competent evidence tending to establish proximate causation.
Emily L. Fernandez, Alan B. Friedberg and Judy C. Selmeci
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