A single mother gave birth prematurely to her baby girl on her 25th week of pregnancy. The child stayed at the neonatal intensive care unit of a university hospital where she was taken care of by the staff from the date of her birth on June 25, 2003 until she was released on August 3, 2003.
The child suffered from hydrocephalus; she had breathing disorders; she had seizure disorders and blindness. The mother brought a suit for medical malpracticeagainst the attending neonatologists, the nursing staff and the university hospital itself. The mother filed the suit in damages for and in behalf of her prematurely-born baby daughter, alleging that the attending neonatologist’s medical malpractice caused her child personal injury. The mother also brought a suit in damages alleging that the neonatologist’s medical malpractice and negligence that caused her daughter’s suffering also caused her personal anguish and distress. She claims the payment of her medical bills and for the maintenance and upkeep of her child who suffers irreversible and permanent brain damage which requires round-the-clock nursing care for the rest of her life.
The chief of the neonatal intensive care unit filed a motion to dismiss the cause of action against him for negligence and medical malpractice. The question of whether or not the complaint against the chief neonatologist should be dismissed is the only question before the Supreme Court.
The Supreme Court held that in medical malpractice cases, the person claiming damages from the medical malpractice has the duty to allege and give preliminary proof that the doctor being sued deviated or departed from accepted medical practices and that the deviation or departure is the proximate cause of the injury or damage.
The neonatologist who filed the motion for summary judgment must make a preliminary showing that he is entitled to a judgment, tendering sufficient evidence to eliminate any material issues of fact.
The neonatologist’s own testimony on his deposition is the only admissible evidence he proffered in support of his motion for summary judgment. In this testimony, he claims that he only saw and attended the child on the day it was born as he was scheduled as daytime attending neonatologist then but was not the scheduled attending neonatologist at the neonatal intensive care unit from July 7, 2003 until August 3, 2003. He claims to have seen the child next only on August 17, 2003.
He denied that he deviated from any accepted and regular medical procedure during those few days when he attended and cared for the child. He also denied that the residents, fellows and other medical personnel of the neonatal intensive care unit who were under his supervision deviated from normal procedure.
He claimed that the blindness of the child is a usual complication of premature birth. He claimed that there were no signs of brain bleeding noted. There were no indications that the intravenous line which was directly inserted into the child’s heart was ever wrongly placed.
To rebut this preliminary evidence, the single mother presented medical experts who asserted that the neonatologist departed from accepted medical practice by allowing the premature child to receive too high concentrations of oxygen and this was what destroyed the child’s retina and caused her blindness.
The expert witness also noted that prior to the increase of the blood oxygen levels of the child, the child showed no signs of brain injury. It was the repeated exposure to high level of oxygen concentration that caused her lung infection, her brain injury and her blindness.
The experts in Nassau and Suffolk also testified that the doctor should have seen from the x-rays taken of the child that the intravenous tube through which food and medicine was being directly administered to the child had been removed from the proper place (near the biggest blood vessel in the heart where sufficient blood flow will allow rapid dispersal of the medicine and nourishment. The expert testified that because the neonatologist did not see that the intravenous line was not in the right place, the fluids collected in too high concentrations near the heart further making it difficult for the child to breathe and this caused the child’s brain to be deprived of too much oxygen for long periods of time and caused her brain injuries.
The Court then decided that the trial court did not err in denying the motion for summary judgment as the experts presented by the plaintiff have raised material issues of fact that require a trial. What caused the child’s blindness and brain injury are material issues of fact that renders a motion for summary judgment untenable.
A New York City Brain Injury Attorney has the duty to prove that the doctor being sued did not perform his duty in accordance with set procedures. A NYC Brain Injury Lawyer also has to prove that the doctor’s failure to perform his duty in accordance with procedures was what caused the injury to the child. At Stephen Bilkis and Associates, New York Brain Injury Attorneys are willing to assist you not only in bringing your suit but also gathering relevant evidence to prove your injury. Call Stephen Bilkis and Associates today and confer with their NY Brain Injury Lawyers who will stand with you at trial and even during negotiations for settlement of your claims to make sure that you are fully compensated for the brain injury your loved one suffered. Call Stephen Bilkis and Associates today.