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An action for alleged medical malpractice, lack of informed consent


An action for alleged medical malpractice, lack of informed consent, and negligent hiring on behalf of the complainant child was commenced by his mother and natural guardian. The complaint arising out of the alleged negligence of the accused parties during the care and treatment rendered to the child’s mother during her pregnancy, labor and delivery, resulting in the premature birth of the child, and the alleged negligence of the accused parties in their care and treatment of the child causing the child to sustain severe and serious birth injury, including brain damage.

To support the motion brought by the physicians and the University Associates in Obstetrics & Gynecology, they have submitted an attorney’s affirmation; copies of the pleadings, answers, verified bill of particulars; a copy of the complainants’ medical records; and the affidavit of a medical expert.

The expert for the accused and University Associates in Obstetrics & Gynecology has submitted an affidavit wherein she sets forth that she reviewed various materials including the child’s verified bill of particulars and pertinent medical records and the testimonies of the parties to the action. However, a copy of the accused parties’ testimonies referred to have not been provided with the moving papers or an affidavit by any of the accused parties in support of the motion as required by the law. Additionally, the notarized affidavit of the expert does not comport with the requirements of the law. Therefore, the moving papers are insufficient as a matter of law.

A board certified expert in Obstetrics and Gynecology of the accused parties with a sub-certification in the field of Maternal-Fetal Medicine states that it is her opinion based upon a reasonable degree of medical certainty that the physicians did not depart from good and accepted medical practice with respect to any involvement they had with the care and treatment of the complainant woman and her child.

The Brooklyn gynecologist sets forth that at the time of her presentation to the Hospital on May 21, 2000, the woman was a 34-year old female who had no living children and had two terminated pregnancies. At about 7:55 a.m., a fellow doctor conducted a speculum examination which revealed bulging membranes and no palpable cervix. The bedside sonogram indicated the fetus was in a breech position with hour glassing membranes. The cervix appeared to be two centimeters dilated and two centimeters in length. The woman was administered with medicines and she was advised of the mode of delivery and need for transport. She was thereafter transported to the University Hospital. Arrangements for transport were accepted by the University Hospital doctor. The gynecologist sets forth that there is no evidence in the chart to support that the University Hospital doctor who accepted the woman ever examined or her, with his role limited to accepting transfer of the woman to the University Hospital. The gynecologist does not set forth the standard of care for a physician accepting a transfer presenting at approximately twenty-five weeks gestation with bulging, hour glassing membranes, no palpable cervix, breech presentation, a cervix two centimeters dilated and two centimeters in length, and how the doctor complied with the standard of care. Therefore, even if the affidavit were in admissible form, the doctor has not established a legitimate entitlement to summary judgment to dismiss the complaint.

The complainant mother and her child’s medical expert from the Bronx states that based upon the testimony of the woman, she spoke with her pre-natal gynecologist on the night of May 20, 2000 and advised her that she felt a bulge in her vagina and pushed it back in. The woman’s expert further states that the pre-natal gynecologist testified that if a woman called her with complaints of back pain and a bulge from the uterus into the vagina, she would consider those to be significant obstetrical complaints from the woman’s gestational age, and it would constitute a potential obstetrical emergency and it would be considered a departure to fail to send the patient to the hospital. The woman’s expert opines with a reasonable degree of medical certainty that the pre-natal gynecologist departed from accepted standards of care on the night of May 20, 2000 by not appreciating the potential for an obstetrical emergency; not making a differential diagnosis including cervical incompetence; not advising the patient to go to the nearest tertiary care facility; and by not ensuring that the patient be immediately evaluated for cervical incompetence and the possibility of preterm labor, which would have included the performance of a cerclage, placement on bed rest and administration of necessary medication if deemed necessary at the time. The failure to diagnose and treat cervical incompetence and/or preterm labor, and to treat with tocolytics or corticosteroids on the evening of May 20, 2000 is a causative factor in birth injury as a result of preterm birth, which preterm birth could have been, within reasonable probability, avoided.

The complainant woman and her child’s expert also states that assuming that her pre-natal gynecologist was not contacted on May 20, 2000, her failure to properly instruct the woman on May 21, 2000, as to which hospital to go to constituted departures from accepted standards of care and that she should have been instructed to go to the nearest tertiary care hospital. There were issues concerning the woman in testifying that she was told to go to another hospital and not to the nearest hospital, and she did not ask to go to another hospital rather than the nearest one. The pre-natal gynecologist testified that she told the woman to go to the nearest hospital but the woman said she was going to another hospital. The woman’s expert opines that having the patient travel to another hospital was a departure from accepted standards of care in light of the fact that the hospital was not capable of handling the situation; and in light of the patient living 27 miles from the hospital and only 1.9 miles from a County Medical Center, and shorter distances to other hospitals which were equipped to deal with the situation. The travel delayed the necessary and time sensitive treatment that the woman was required to forestall for the delivery of her child and allow the use of corticosteroids for a period of time to permit benefit and is a substantial contributing factor in causing birth injury to the child.

The woman’s expert further opines that the departures by the pre-natal gynecologist resulted in the loss of chance to prevent the preterm labor and/or preterm birth of the child, to at least prevent the delivery of the child until corticosteroids had an opportunity to be effective.

Based upon the foregoing, it is determined that the woman and her child have failed to raise an issue capable of trial against the attending physician, but have raised issues capable of trial which preclude summary judgment being granted to her pre-natal gynecologist and the Contemporary Women’s Care.

Accordingly, the motion which seeks summary judgment to dismiss the complaint as asserted against the woman’s attending physician is granted and the complaint is dismissed with prejudice as asserted against him; and the motion which seeks summary judgment to dismiss the complaint as asserted against the woman’s pre-natal gynecologist and Contemporary Women’s Care is denied.

Pregnancy is a sensitive situation that requires the outmost attention of both the pregnant mother and her family. The success delivery of every child is the result of a successful teamwork between the mother and her gynecologist. If your gynecologist failed to provide you the delicate care that you and your child needs, feel free to consult a Kings County Medical Malpractice Attorney together with a Kings County Birth Injury Lawyer. You may also call a Kings County Injury Attorney from Stephen Bilkis and Associates to make sure that you win your case in court.

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