A woman was pregnant for the third time. For her first two pregnancies, she was given prenatal care by the doctors of a medical clinic. She delivered her first two babies through vaginal delivery and at both times, an episiotomy was performed. An episiotomy is a cut made between the vagina and the anus to allow the baby’s head and shoulders to pass easily out of the birth canal. The surgical cut is made to prevent vaginal tearing which is more difficult to repair.
The woman’s third pregnancy progressed uneventfully. As she was in active labor, the doctor who attended her left the delivery room because his shift for the day was over. Another doctor from the same medical clinic attended her delivery. As the woman was being delivered of her child on July 22, 1997 her vagina suffered a laceration. The doctor who attended her surgically repaired the laceration.
After the delivery of her third child, the woman began experiencing a sharp throbbing pain in her pelvic area. She was able to perform her usual daily tasks and activities but she began using pain relievers. She also began experiencing painful sexual intercourse with her husband but the pain eventually became less severe.
She first reported the pain to the doctors who delivered her baby two years after she gave birth. The same obstetrician who delivered her third baby examined her but found nothing wrong with her. A year later the woman saw the doctor again and complained of pain on her lower right side. She went to see the same doctor three more times complaining of the pain in the same general area before a sonogram was performed on her on January 22, 2003. The sonogram showed that the woman had an ovarian cyst.
Frustrated with the pain and not knowing the source of the pain, the woman consulted other general physicians. The source of her pain was not discovered until in 2007, the woman was rushed to the emergency room because of tremendous pain. A pelvic x-ray was performed on her on April 9, 2008 and the x-ray showed that something metallic was lodged in her perineum (the area between the vagina and the anus). The metallic object had the same size and shape of a semi-circular suture needle.
She confronted the obstetrician who delivered her third baby with the x-ray results. The doctor told the woman that since she had been suffering for 15 years, chances are, the metallic object had already been enveloped by scar tissue and it should not bother her anymore. The doctor told her that she can have it removed or leave it in place.
The woman filed a suit in damages for the medical malpractice of the two doctors who delivered her third baby. The doctors promptly filed motions for summary judgment asking that the complaint be dismissed on the ground that the cause of action for damages was already prescribed by the statute of limitations. The doctors contend that a medical malpractice action can only be filed within two and a half years from the act, omission or failure complained of.
And if the medical malpractice suit were based on the discovery of a foreign object in the body of the person filing the medical malpractice suit, the action must be brought within one year from the discovery of the foreign object. The doctors claim that the woman was aware of the facts that should have led to the discovery of the foreign object since 1997. The doctors also oppose the woman’s claim for punitive damages.
The only question before the Court is whether or not the complaint should be dismissed.
The Court held that the woman, not being a medical professional, could not have known that there was a foreign object lodged in her perineum. The doctors she consulted could not even discover that there was a foreign object; they failed to connect the pain she was experiencing to a foreign object that was lodged in there.
A material issue of fact must still be tried. A jury must hear evidence to prove what object is lodged inside the woman’s perineum. The woman’s expert opined that the foreign object is a suture needle which looked like a suture needle commonly used in episiotomy repair. The doctors’ expert, on the other hand, opines that it is impossible to know with certainty what the foreign object is without removing it; and, it is impossible to say with certainty how the foreign object got there.
As to the issue of punitive damages, the Court held that punitive damages can only be awarded when the doctors showed callousness and evil motive not only in committing the medical malpractice but also in concealing the medical malpractice.
The Court granted the motion for dismissal of the cause of action for punitive damages but remanded the case for further proceedings. Courts in The Bronx and Brooklyn would rule the same.
Perhaps you are like the woman in this case and a foreign object was left inside you after surgical procedure. You surely have a cause of action in damages for the medical malpractice of the doctor, but can you include a cause of action for punitive damages? Call Stephen Bilkis and Associates today and ask to speak with any of the NYC Medical Malpractice attorneys. The New York Medical Malpractice lawyers from Stephen Bilkis and Associates can assess the facts of your case to inform you if you have a cause of action for punitive damages. The NY Medical Malpractice attorneys can help you gather evidence and obtain expert opinion in your favor. The New York Medical Malpractice lawyers can represent you in settlement negotiations as well as argue your case in court. Go to Stephen Bilkis and Associates at any of their offices in the New York area.