A medical malpractice action was filed by a mother and her husband against her physician and the hospital, where she was admitted for her delivery. The mother asserts that the physician left a foreign object specified as a surgical needle in her perineum during one of the suturing procedures. The mother gave birth on three occasions under the same hospital care, and after each delivery, a suturing procedure was performed. The mother seeks damages for physical pain and mental anguish. She also seeks damages for loss of services.
The mother states that her first delivery happened on the year of 1993 and she was presented to the hospital to deliver her first child. She was then handled by a physician and performed a right mediolateral episiotomy. The second delivery occurred after three years where she gave birth to her second child at the same hospital under the care of another physician and again obtained a mediolateral episiotomy. After a year, the mother gave birth to her third child. The physician who handled her second delivery induced labor but left the delivery room when his shift was over. The reliever doctor then delivered the child. The reliever doctor is the same doctor who handled her first delivery on her first child. After the delivery, the mother suffered a first degree laceration and was repaired by the reliever doctor.
According to the mother’s testimony, after the birth of her third child, she began to feel a throbbing, squeezing pain in her lower right pelvic area. Her pain was at level six as scaled from one to ten at one point at that time but was not constantly at that level. The pain never became lower than a four or a five. She further states that she can perform her normal daily activities, but used over-the-counter pain medication frequently. The mother also asserts that she had a separate and distinct pain during intercourse. She described the pain as very sharp, stabbing pain in the area surrounding her vagina. The pain was severe enough to limit her sexual activity with her husband from roughly four times a week to two times a month. The pain eventually became less severe.
According to the medical records, after four visits at the women’s clinic facility without reporting pain, the mother came to the physician who handled her third delivery and she complaint of the pain she feels. She testified that the pain complained of was the pelvic pain. The mother stated that the physician examined her and told her that everything was fine. According to the medical records from the next visit, the mother again came to the same doctor complaining of pain on her lower right side. Three visits later, the mother requested a sonogram and it was performed. The sonogram results revealed an ovarian cyst. During roughly the same time period, the mother also visited her general practitioners and she also reported right lower quadrant pain in her pelvis.
The mother’s testimony revealed that she began to experience pain in her lower abdomen that began as pain in her right pelvic area, requiring admission to an emergency room. She testified that a CT scan was performed, but revealed no significant findings. The mother continued to report right, lower quadrant pain to her general practitioners and a pelvic x-ray was ordered. Consequently, the x-ray results report that there was a metallic density in the mother’s perineum of with the size and shape that the same with a suture needle. The x-rays reveal a U-shaped object below her pubic arch. That same day, the mother presented it to the doctor who handled her delivery and told her to repeat the pelvic x-ray. The mother assert that the doctor recommended a specific radiological facility, setting forth that it would do a better job than the facility who performed the initial pelvic x-ray.
In the medical records, the doctor set forth that the surgical needle was present for 11 to 15 years, but has not bothered the mother. The doctor also offered her the options of removing the needle surgically or leaving it in place however the mother opted against surgical intervention since it is asymptomatic.
Consequently, the mother commenced the medical malpractice action, filed a summons and verified the complaint. All of her opponents answered and asserted affirmative defenses based on the statute of limitations. Based on records, the statute of limitations in a medical malpractice action is two and one half years, and runs from the act, omission or failure complained of however, if the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.
The mother offers the affirmation of a doctor, who is a board certified in surgery and colon and rectal surgery. The doctor explained that the foreign object revealed in the mother’s x-ray is a type of needle commonly used to suture lacerations. The doctor further states that given the medical history of the mother, the only probable explanation for the surgical needle’s location in her perineum is that it resulted from either one of the episiotomies after her first two deliveries or the laceration repair following her third delivery.
In opposition, the hospital relies on the affidavit of a physician who is board certified in radiology. The doctor opines that there is no way for any radiologist to determine that the admittedly metal foreign object in the mother’s perineum is a surgical needle. He sets forth that there are numerous metal objects that look similar to foreign object in the perineum, including sewing needles, staples, and material used to construct furniture. According to the doctor, he has seen patients with such items in their bodies with no idea the object was there or how it could have come to be there. The doctor who practices in New York City and Westchester, further asserts that scar tissue forms around foreign objects after an extended period of time and the x-ray does not capture the progress of any scar tissue, apparently making it impossible to date the presence of the foreign object.
The opponents contend that the record reveals no such conduct and the claims for punitive damages should be dismissed. But the mother set forth that the doctor who handled her third delivery attempted to conceal the fact that a surgical needle was in her perineum. The mother will testify that the doctor withheld the results of the second x-ray for weeks if not months and that the medical records were fabricated.
Consequently, the court finds and ordered that the cross-motion of the opponents to dismiss all claims for punitive damages is granted. The court further ordered that the branch of the cross-motion by the physicians to dismiss on statute of limitations grounds, that branch of the mother’s motion seeking to dismiss the opponent’s statute of limitations defense and the branch of the hospital’s motion to dismiss on statute of limitations grounds are denied. It is also ordered that the branch of the mother’s motion for the decision without trial on the issue of liability against the women’s facility clinic is also denied. Lastly, the court ordered that the mother’s motion to disqualify is denied.
Being a medical practitioner is a hard job. They work with unusual length of time and the chance of acquiring diseases is part of their everyday life. If you are a medical practitioner facing a lawsuit, you can ask the assistance of NY Medical Malpractice Attorneys. If you are a patient who acquired injury from the hands of your health care providers, the NY Birth Injury Attorneys or NY Injury Attorneys at Stephen Bilkis and Associates can offer you legal guidance in proving your allegations.