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A woman of foreign descent was pregnant with twin boys

A woman of foreign descent was pregnant with twin boys. She gave birth at a public hospital owned and managed by the City of New York on October 25, 1981. The twins were born prematurely at seven months’ gestation only. One of the twins was brought to the newborn nursery of the public hospital where he stayed until he was discharged on December 23, 1981.
One month after the son’s birth, the boy’s left thigh swelled. He underwent x-ray and it was discovered that the thigh bone was fractured. The doctors at the public hospital repaired the fractured thigh bone. The doctors put a cast on the left thigh until it healed. The child recovered.

Nine years after the child was born, the mother brought a suit in medical malpractice against the public hospital. She claims that the negligence of the doctors who delivered and cared for her child in the nursery caused the fracture in her son’s left thigh which caused the child’s legs to grown unevenly: his left leg is shorter than the right leg and the child limps.

After filing the medical malpractice case, the woman asked for leave from the court to file a late notice of claim on the City of New York. She claims that she is a foreigner, not born in the United States; she has had little education and that she did not know that she can file a medical malpractice suit against the doctors who delivered and cared for her son at the public hospital.

The trial court denied the mother leave to serve a late notice of claim on the City of New York. The mother appealed this denial of the trial court to the Supreme Court of Kings County and the Supreme Court granted her leave to serve the late notice claim.

The City of New York and the public hospital appealed to the Supreme Court of the State of New York. The only question here is whether or not the woman should be allowed to serve a late notice of claim on the City of New York and pursue a medical malpractice suit against the public hospital and against the doctors who delivered and cared for her baby during his hospitalization after his premature birth.

The Court resolved to reverse the Supreme Court of Kings County and deny the woman’s motion for leave to file a late notice of claim.

The Court held that it is possible for infancy to toll the period within which a notice of claim may be filed; but the Court ruled that the Supreme Court of Kings County abused its discretion in granting the woman leave to file a late notice of claim. The Court held that the woman did not plead a reasonable excuse for her delay in filing the late notice of claim.

The Court held that being born outside of the United States and having little education is not a plausible excuse for the delay. More importantly, the woman failed to state that the delay will not prejudice the public corporation as it already had notice of the facts constituting the claim.
The Court found the complaint to be vague as to the averments of facts. Her complaint and her motion for leave to file a late notice of claim only contain conclusions and not facts.
The Court held that it is clear that the delay of filing the notice of claim is not because the plaintiff (the one suing) was the child; rather, the delay was caused by the mother’s lack of knowledge that she can bring such a suit for medical malpractice.

The Court also noted that the Westchester woman’s claims for medical malpractice are vaguely worded: it is not possible to determine if the woman is seeking recovery for ordinary negligence in the fracturing of the child’s leg or for the medical malpractice in the treatment of the fracture by the hospital staff. For this reason, the nature of the claim is vague even in the time and manner in which the claim arose.

Because of the vagueness of the claims, it is impossible to presume that the City of New York had notice of the claim from its possession of the child’s medical records. It would be highly prejudicial to the City of New York to make it defend itself against the vague claim after nine years had passed. It would be difficult if not impossible for the City to investigate the truthfulness of the claim.

Are you like the woman in this case whose baby was injured during birth or immediately after birth? Are you thinking of bringing a suit for medical malpractice? Don’t delay. Call Stephen Bilkis and Associates today. Speak to any of their Kings Medical Malpractice attorneys who can assess the facts of your case. A Kings Medical Malpractice lawyer can help you find the proper parties to bring into the suit. A Kings County Medical Malpractice attorney can help you gather evidence and present them in court. Call Stephen Bilkis and Associates today and meet with any of their Kings County Medical Malpractice lawyers at any of their offices in the New York area.

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