Articles Posted in Brain Injury

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This is a medical malpractice case filed against the defendant NYC hospital because of the negligence committed by its employees during plaintiff’s birth in September 1993. According to the hospital records, the medical employees in attendance gave his mother Pitocin, a drug used to facilitate the birth. The delivery involved two attempts at vacuum extraction and, ultimately, the use of forceps. Records show that the mother’s pelvis was adequate to accommodate the baby’s head and the birth was without complication. The infant weighed 8 pounds, 3½ ounces. His Apgar score was within satisfactory range: eight at one minute after birth and nine at five minutes after birth. The records also reveal that there were marks on his forehead from the forceps and his clavicle was broken. Because of the foregoing, plaintiff is presently suffering from epilepsy and developmental disabilities.

The record reveals that in 1995 plaintiff had an electroencephalogram (EEG), a test to trace his brain waves. The results were normal, but EEGs in 1998 and 1999 showed signs of abnormality. On September 5, 2003, 10 years after plaintiff’s birth, his counsel sent defendant hospital a notice of claim alleging, in essence, that plaintiff suffered brain injury resulting from the hospital’s malpractice during his delivery.

In support of his motion for late service of a notice of claim, plaintiff argued that section 50-e (5) contemplates “actual knowledge of the essential facts constituting the claim,” not knowledge of a specific legal theory, and because defendant hospital is in possession of the medical records, they necessarily have actual knowledge of the facts constituting the claim. Plaintiff further argued that the delay in the service of claim was a product of his infancy.

In General Municipal Law § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit against a public corporation. Section 50-e (1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions.

Section 50-e(5), the late-notice statute, directs the court to consider, in particular, whether within 90 days or a reasonable time thereafter the public corporation (or its attorney or insurance carrier) acquired actual knowledge of the facts underlying the claim. In deciding whether to grant an extension, the court must also consider a host of factors, including infancy and whether allowing late filing would result in substantial prejudice to the public corporation.

The hospital’s records revealed that the delivery was difficult, but that when it was over, there was scant reason to identify or predict any lasting harm to the plaintiff, let alone a developmental disorder or epilepsy. The Manhattan plaintiff’s Apgar scores were satisfactory and even two years, later plaintiff’s EEG was normal.

The Court held that, under these circumstances, defendants could well have concluded that when plaintiff left the hospital there was nothing wrong with him beyond a broken clavicle. Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process. Since there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.

With respect to Plaintiff’s other contention, A delay of service caused by infancy would make a more compelling argument to justify an extension. Conversely, the lack of a causative nexus may make the delay less excusable, but not fatally deficient. It all goes into the mix. The Court pointed out that, among other reasons for denying an extension such as lack of actual knowledge, the delay in the service of notice of claim was not the product of plaintiff’s infancy.

The law contains a non-exhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances, to sustain or deny grants of permission for late filing. This approach provides flexibility for the courts and requires them to exercise discretion.

In view of the foregoing, Plaintiff’s claim was denied by the Court.
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This case is being heard in the Supreme Court of the State of New York in Queens County. The defendants of the case have moved for an order to set aside a jury award of damages that was returned on the 22nd of June, 2005 and for a new trial to be granted in the interest of justice. The defendants contend that the amount of the awards issued by the jury are excessive and are not supported by the evidence that was provided in the case. The jury awarded the plaintiff $2,500,000 for past pain and suffering, $1,000,000 for future loss of earnings over the next 32 years and $12,500,000 over 52 years for future pain and suffering. There have been several conferences held in regard to this case, but no agreement could be reached and now it is up to the court to decide.

Case Background
The trial of this instant action was bifurcated. The liability portion of the trial was held on the seventh of June, 2005 and the jury returned with a verdict on the ninth of June finding that negligence of the defendants was the only cause of the accident in which the plaintiff was injured.

The Long Island plaintiff was coming home from work when she was hit by a bus when she crossed Putnam Avenue in Queens County. She fell backwards on the ground and sustained injuries to her back and to her neck. The most serious injury was to her right foot which was crushed by the wheel of the bus.

The damages portion of the trial was started on the 15th of June. The evidence provided in the case showed that as a result of the accident the skin and tendons of the plaintiff’s foot were badly damaged. She also suffered from fractures and displacements of the bones of the foot and toes.

At the time of the accident the plaintiff was taken by ambulance to the hospital where her wounds were cleaned. She was put under while surgery was performed and a cast put on her foot. She was released from the hospital two weeks later with her foot still in a cast.

The plaintiff stated during her testimony that she underwent physical therapy for her foot, but continues to have unbearable pain and numbness throughout her right foot. She ended up having another surgery to her foot to release the nerve from scar tissue that had developed around it.

Court Discussion and Decision
In order for the court to set aside a jury determination for damages the record must show that the verdict made by the jury could not have been reached by any fair interpretation of the evidence.

In this case, the plaintiff concedes that the amount awarded for pain and suffering is excessive and suggests a reduced award in the amount of $1,500,000 for past pain and suffering and $3,500,000 for future pain and suffering.

The court has reviewed similar cases and jury awards and determined that a fair settlement would be $1,000,000 for past pain and suffering and $2,000,000 for future pain and suffering. If the plaintiff does not agree to this the defendant will be granted a new trial to resolve the issue.
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This case is being heard in the Family Court of Queens County. This particular case involves alleged child abuse.

Case Background
On the ninth of June, 2004, the Administration for Children’s Services filed a petition alleging that the subject child had sustained a second degree burn on her elbow, a bruise over her eye, a laceration on her lip, a bite mark on her foot an numerous scars and scratch marks all over her body. The respondents, who are her biological parents, could offer no explanation as to how she sustained all of these injuries.

The child had been living in foster care for the previous three years and was returned to her parents in April of 2004. The original petition of abuse that resulted in the child being put in foster care was filed in February of 2001 and charged that the then 10 month old child had been burned on her right eye, below her right cheek, and across the back of her neck. The child also had cuts all over her body including inside her ears and on the bottoms of her feet. The respondents failed to provide a reasonable explanation for these injuries.

Fact Finding Hearing
In this instant case the fact finding hearing was held in October of 2004. The physician’s assistant that treated the child and the foster care agency worker both testified during the hearing.

The physician’s Manhattan assistant testified that the mother brought the child in for treatment for a burn on her right arm. She testified that the child had a two centimeter second degree burn around the area of her elbow. The physician’s assistant stated that the mother told her that the child had received the burn when she touched an electrical outlet. The mother also told the physician’s assistant that the child had just recently been returned to her after having been in foster care for child abuse. She went on to testify that the child was quite during the examination and very scared. She states that the child seemed to be malnourished and was very small and appeared to be younger than her stated age. She reported the case to the State Central Register because the explanation for the burn was inconsistent with the injury.

The caseworker for the child testified that the child was discharged to the respondents in May of 2004 and that she learned about the injuries when the father called her in June to report them. The father told her that the mother had grabbed the child’s arm to keep her from grabbing a blow dryer that was plugged in because the child’s hands were wet and she did not want her to get shocked.

Case Discussion and Decision
The inconsistencies of the stories from both parents it is quite clear that this child has been abused. The court finds that the respondents have been unsuccessful with the required parenting classes and finds that they are unlikely to ever be successful. The child along with the other children of the home is to be removed and placed in foster care.
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The Facts:

A medical malpractice action to recover damages for the birth injury sustained by an infant was commenced by plaintiff, the mother of the injured infant, against, among others, the defendant Hospital Center. Plaintiff alleges that, inter alia, as a result of the negligence, carelessness, and recklessness of defendants, plaintiff’s infant was born prematurely and thereby suffered severe and permanent brain injury, including cerebral palsy, spastic quadriplegia, gastroesophageal reflux disease, and cognitive and speech impairments.
In December 2004, before commencing the action, plaintiff’s attorney requested the Hospital to provide him with the complete medical file for both plaintiff and her infant from July 1997 to December 2004. In July 2006, after the commencement of the action, plaintiff’s attorney specifically requested that the Queens Hospital provide him with, among other things, the fetal monitoring strips for 19 July 1997. On 9 November 2006, after plaintiff’s counsel made several attempts to secure the Hospital’s compliance with his request, the Hospital informed plaintiff’s attorney that the fetal monitoring strips he had requested no longer existed. Plaintiff now moved to strike the Hospital’s answer due to spoliation of evidence.

On 22 October 2008, the Supreme Court, Westchester County, granted plaintiff’s motion to strike its answer for spoliation of evidence. Defendants appeal from the said order.

The Ruling:

As provided for under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party of the ability to prove its claim, the responsible party may be sanctioned by the striking of its pleading. However, a less severe sanction is appropriate where the absence of the missing evidence does not deprive the moving party of the ability to establish his or her case. The determination of a sanction for spoliation is within the broad discretion of the court.

Here, The Staten Island plaintiff did not clearly establish that the Hospital negligently lost or intentionally destroyed the subject fetal heart monitoring data for 19 July 1997, the infant’s date of birth. The record fails to rule out the possibility that the central monitoring computer system utilized by the Hospital in its labor and delivery unit to electronically store fetal heart data onto an optical disk was properly operating, or the possibility that it malfunctioned on 19 July 1997, due to no fault of any of the parties involved in this action, and resulting in no fetal heart data being recorded or stored for that date. Nor did the plaintiff establish that the unavailability of the fetal heart monitoring data fatally compromised her ability to prosecute the instant action.
Thus, since plaintiff failed to clearly establish that the Hospital negligently lost or intentionally destroyed the material, the plaintiff is entitled only to the sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data, as against the Hospital. Moreover, plaintiff failed to show that the alleged spoliation left her prejudicially bereft of the means to prosecute the action against the Hospital.

In sum, the Supreme Court improvidently exercised its discretion in striking the Hospital’s answer and, instead, should have imposed the lesser sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data. Accordingly, the appeal by the defendants is dismissed as abandoned; the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting the plaintiff’s motion to strike the answer of defendant Hospital Center on the ground of spoliation of evidence, and substituting therefor a provision granting plaintiff’s motion to the extent of directing that an adverse inference charge be given at trial with respect to the fetal monitoring data for 19 July 1997, as against defendant Hospital Center, and otherwise denying the motion; as so modified, the order is affirmed insofar as appealed from by defendant Hospital Center, without costs or disbursements.
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The prohibition of marijuana is a hot topic of discussion these days. Since, many tests have demonstrated that marijuana is less toxic to a body than either alcohol or tobacco, many people are interested in eliminating the prohibition that makes it illegal. In recent years, many states have taken action to decriminalize the personal use of marijuana. The use of this substance has been proven to have many beneficial medicinal effects. Preventing citizens from having access to a natural medicine that has very few side effects seems ridiculous. However, much like alcohol was at one time prohibited, marijuana is not prohibited. Anyone who uses marijuana, even if they only use it once, is found guilty of a criminal offense. In some states, there is so much marijuana seized by local law enforcement agencies that it is no longer sent to the state crime lab to be tested and verified. The local agencies test it themselves with a simple test before they dispose of it. So with so much political upheaval associated with the personal use of marijuana, how does the use of this substance affect the parents who engage in ingesting it? For some people, they claim that they use it to self medicate for numerous psychological and physical maladies that artificial drug company produced legal drugs cannot compete with for effectiveness. There are several ways that a person may use marijuana to relieve physical pain or anxiety. One way that has been popular in home remedies since the early 1700’s before marijuana became an illegal substance, was to steep the leaves in vinegar to be applied topically for arthritis or muscle pain. Other people eat the leaves as a way to gently reduce anxiety or increase appetite. However, even these non-recreational uses of the herb is prohibited by law in most states.

What happens to an otherwise normal law abiding citizen who is found guilty of personal use of marijuana? In most states, the answer to that would be that they would be issued a ticket like a traffic ticket and would have to appear in court. They would then be given community service or a fine if they are found guilty. However, what if that same person delivered a baby in a hospital in New York within thirty days of ingesting marijuana? The child is taken away from them and put into foster care.

That is what happened to one mother in November of 2010, the mother gave birth to a healthy baby boy in Brookdale Hospital in Manhattan. He had excellent Apgar scores and exhibited no problems or illnesses. Shortly after the birth, the mother was notified that both she and the baby had tested positive for marijuana and that a child neglect report was being filed with the state. Although, the hospital could not show that the marijuana had caused any risk to the mother or the child, the baby was removed from her care and her other six children were taken as well. The mother was charged with derivative neglect of her other children because the Administration for Child Services in New York determined that the mother had eaten some marijuana to calm her nerves several days before she delivered her baby.

The Queens mother agreed to drug treatment and upon completion of the mandatory drug treatment program, her children were returned. Several months later, the mother tested positive for marijuana again. She claimed that she had smoked one marijuana cigarette at a party. The state filed an accusation to remove the children again. The court was called upon to determine if this was an appropriate response to an offense that would not even be considered criminal in most states. The court determined that the state had not made a sufficient case to show that the actions of this mother had been detrimental in any way to her children. The case was dismissed.
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When a new mother considers her birthing options, she is often drawn to the home birthing option. No one likes to go to a hospital, and everyone is more comfortable in their own homes. The thought of being able to bring your new childinto the world in the warm environment of their home is an attractive notion for many women and their families. The argument is often raised that women all over the world have babies at home every day. Women have been giving birth to babies for thousands of years without hospitals. This argument leaves out the mortality rate associated with the babies that are born in these other countries, in the past, and at home. A home birth is a wonderful option for an experienced mother who has delivered children previously without difficulty. If there is any chance that a complication may arise in the birth, the safest place for the woman to deliver is in a hospital where she and the infant can obtain the best quality emergency medical care. The safety of the child or children should be the most important factor in deciding the location where a mother will deliver her child.

That was not the case when in December of 2003, a woman in New York decided that she wanted to have a home birth with a midwife. She chose the company called My Midwife to handle her pregnancy. On January 28, 2004, the midwife performed a sonogram evaluation of the woman and discovered that she was pregnant with twin infants. Rather than seeking more specialized medical attention for what is commonly considered a high risk pregnancy, the midwife continued to care for the mother in her home. On June 24, 2004, during an examination, the midwife determined that one of the baby boys heart rates was slowing down. She accompanied the mother to Nassau University Medical Center where they reexamined the mother. They were not able to detect any problem with the baby’s heart rate; however, they advised the mother that that her pregnancy was considered a high risk pregnancy and that they felt that the best action to take would be to admit her into the hospital. They suggested that with admittance to the hospital, they would appoint a high risk pregnancy specialist to take over the woman’s case and to delay delivery as long as possible. They informed the mother that the best course of action when delivering twins is to deliver them in a hospital setting as they commonly have more complications than single pregnancies. The mother conferred with the midwife and determined that the midwife did not have birthing privileges at that hospital. She also discovered that the midwife was not certified to deliver multiple babies. The midwife told her that she would have someone who was certified to deliver multiples present at the birth and the mother left the hospital with the midwife.

Over the next week, the midwife made contact with a nurse practitioner who was qualified to deliver twins. However, she was invited to the birth as an observer. On July 1, 2004, the mother went into labor at home. The midwife arrived along with the nurse practitioner, and one of the owners of the midwife company. The birth was video taped. One baby was delivered with little difficulty, but his brother was born dead. The mother filed a wrongful death suit when she discovered that the midwives and their company did not have the capability of monitoring the heart rates of both babies during the birth.

The mother later learned that if she had delivered in the hospital, the staff would have been able to monitor both infants. They would have been able to determine that one of the infants was in trouble and an emergency caesarian section could have been performed to deliver the twins faster, which probably would have saved the life of the second infant. The mother named the midwife, the midwife company, and the nurse practitioner in her wrongful death suit. The nurse practitioner filed a motion for the court to order a summary judgment in her case.

She contends that she was invited to the birth only as an observer and that she should not have been attached to the lawsuit in the first place since she is not even an employee of that company. The mother disagrees. She claims that the nurse practitioner took an active role in the birthing process and with the newborn infants. The mother claimed that the nurse practitioner took charge of the second twin as soon as he was born and began life saving actions in an attempt to resuscitate him. The mother contends that the nurse practitioner and the others were guilty of medical malpractice in that they assured her that the home delivery would be fine in spite of the fact that there had been a previous incident of the child’s heart rate slowing. She contends that when she was at the hospital that time, the midwife who had gained her trust had assured her that there was nothing to worry about because the child’s heart rate had stabilized. She contends that these people deviated from the standard of medical care in that they did not advise her to go to the hospital or that the delivery was any more dangerous than any other delivery.

The nurse practitioner produced a doctor who stated that the nurse practitioner did not have any contact with the mother during the prenatal process or examinations. Her contention that she was only there as an observer and to video tape the delivery was used as a reason for granting her summary judgment that she held no liability in this case. However, as other medical experts took the stand, it became clear that the nurse practitioner was responsible for much more than video taping and observing. In fact, the midwife company could not have legally performed the home birth of the twins at all if they had not had the cooperation and assistance of the nurse practitioner who was certified to deliver twins. Therefore, much of the ultimate responsibility for failing to call an ambulance for the woman when it became clear that there were problems with the delivery fall directly into the lap of the nurse practitioner as the only one present who was certified to deliver twins.

The nurse practitioner attempted to wrap herself in the protections of the Good Samaritan Law by stating that she was only a volunteer and that any steps that she took to intervene in the birth were taken with good intentions and that she should be removed from liability of medical malpractice based on this contention. The court did not agree. The court determined that the nurse practitioner took an active role in the birth and attempts to resuscitate the stillborn infant. She was the one who was certified to deliver twins and the other professionals on the scene were dependent on her expertise. Summary judgment to detach her from the suit is not granted.
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The Facts:
Petitioner was diagnosed with stomach cancer by hospital-one after undergoing an endoscopy and after staff at hospital-two and hospital-three who saw petitioner on many occasions through 2009 failed to make that diagnosis or perform any diagnostic testing. Petitioner claims that the delay in diagnosing her cancer allowed the cancer to progress and adversely affect her prognosis. Thus, an action for medical malpractice ensued.

Petitioner moves for leave to serve a late Notice of Claim, pursuant to the General Municipal Law. The New York City Health and Hospitals Corporation (NYCHHC) opposes the petition, contending that there has been at least a six month delay in filing the Notice of Claim against NYCHHC, and, more than one year ninety day delay in filing the Notice of Claim against the individual respondent, who NYCHHC claims, and petitioner does not dispute, last saw petitioner on 9 May 2008.

The Ruling:
Under the General Municipal Law, a claimant commencing a tort action against a public corporation must serve and file a proper Notice of Claim within ninety days after the claim arises. The related action or proceeding must be commenced within one year and ninety days of the event. An application for an extension of time to serve a Notice of Claim may be made before or after the action has been commenced, but not after the one-year and ninety-day statute of limitations has run, unless the statute has been tolled.

As a rule, in determining whether to grant leave to file a late Notice of Claim pursuant to General Municipal Law, a court must consider the key factors of whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within ninety days after the claim arose or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense. The presence or absence of any one factor is not determinative.

First, on the actual notice of petitioner’s claim:

It has been ruled that merely having or creating hospital records, without more, does not establish actual knowledge of a potential brain injury, spinal injury or any other injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process. Thus, while agreeing with the plaintiff that General Municipal Law only requires actual knowledge of the essential facts constituting the claim, and not knowledge of a legal theory, the Court of Appeals has held that where, as here, there is little to suggest birth injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.
Here, no affidavit is proffered to establish that the Bronx hospital records contain sufficient information about the facts constituting the claim so as to constitute actual knowledge. However, contrary to NYCHHC’s argument, the failure to supply such an affidavit is not fatal; actual notice is merely one element of the analysis.

Second, when the petitioner has a reasonable excuse for her filing delay:

In the instant case, although petitioner failed to demonstrate that NYCHHC had actual notice, the failure is not fatal as petitioner has a reasonable excuse for the short six month delay and NYCHHC is not prejudiced as a result. The petitioner only received the diagnosis of stomach cancer sometime in March of 2010; she had surgery on 22 March 2010; she stayed one week in the hospital; and she had chemotherapy and radiation treatment immediately thereafter. It is not reasonable to expect that petitioner would have served the Notice of Claim on NYCHCC within 90 days of her last treatment at NYCHCC’s hospitals, as NYCHHC claims she should have, given that she, as a layperson, would not have known that any malpractice occurred.

And third, on the issue of prejudice:

NYCHHC claims that it will be substantially prejudiced by the late filing because a prompt investigation was not done, due to lack of timely notice; that respondent cannot be certain that relevant staff members are still employed and even if they are, it will be difficult for them to remember events occurring as far back as 2007. However, petitioner made complaints to both hospitals through 2009. No effort has been made to ascertain whether staff members are still employed, and given that medical records are kept in the ordinary course of business, memories, if lost, can be refreshed by the records.

Here, petitioner alleges, and NYCHHC in Brooklyn does not dispute, that she saw hospital-two’s staff numerous times between 2007 through 2009 and hospital-three’s staff numerous times in August of 2009.

While it has not been demonstrated that NYCHHC had actual knowledge of the facts constituting petitioner’s claim, petitioner clearly has a reasonable excuse for the delay in serving the Notice of Claim, and the delay will not substantially prejudice NYCHHC.
In sum, the petition for leave to serve a late Notice of Claim is granted against respondent NYCHHC, and the Notice of Claim, as amended, is deemed timely served on respondent NYCHHC only; denied as to respondent individual.
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On September 21, 1982, the complainant 32-year-old woman visited her accused gynecologist for her annual check-up. At that time, the gynecologist made note of a one-centimeter mass on the outside lower quadrant of the woman’s left breast which he tentatively classified as a galactocele or a milk-filled cyst, but no further tests were performed. Ten months later, the woman returned to her Manhattan gynecologist complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in the woman’s breast was diagnosed as cancer which had metastasized or spread, to three ribs and two vertebrae. The woman died nearly two years later, as a result of the extensive metastasis of the cancer leaving as the sole beneficiary of her estate her then four-year-old daughter.

At the time her condition was first diagnosed, she was in the process of obtaining a divorce from her husband who contributed nothing toward her own or her child’s support. Although after the birth of her daughter, she had discontinued working outside the home, she was certified as a teacher for kindergarten through twelfth grade and had been a permanent substitute teacher in the Lawrence school district for one and one-half years prior to her daughter’s birth. She held undergraduate degrees in art education and psychology and was working toward obtaining an advanced degree in psychology in preparation for a child psychology program. She had always been a very self-sufficient and independent person. She had fully participated in the daily activities of her child. Because of her rapidly deteriorating physical condition and the negative effects of the medical treatment, the woman’s life changed to a tragically radical degree. She initially underwent two months of hormone therapy which was discontinued when she stopped responding. She began experiencing excruciating pain in her right leg which was determined to be caused by an additional lesion. She was then placed on a program of pain killers including morphine and methadone which her treating physician testified only dulled the recognition of pain in the brain but did not eliminate the pain. She also received a combination of five chemotherapy drugs which caused debilitating side effects. She became constipated, weak and tired, suffered from insomnia and began losing weight at the rate of two or three pounds per week. Her bones became very brittle and she was warned by her physicians to be very careful to avoid breaking them. In fact, she had to be hospitalized on three separate occasions for hypocalcaemia which is an elevation of calcium in the blood causing sleeplessness, lethargy, confusion, difficulty in walking, severe dehydration and ultimately death. The continuous vomiting caused by the chemotherapy resulted in dental infections and the loss of six teeth which she had to have extracted with only a minimal amount of novacaine due to the chemotherapy.

The Queens woman became a virtual invalid. She relied on a homemaker, her friends and family to care for her child, to shop for her, to clean her house, to prepare meals and to drive her to the hospital. She had no physical strength. She was too weak to pick up her daughter or to perform any type of housework. Moreover, because of her weakened bones, she was afraid to go to any crowded places such as a train station or shopping mall for fear of being hit in her ribs or vertebrae. In any event, she was physically unable to shop for herself. Her social life became nonexistent.

Perhaps the more difficult pain for her was the emotional and psychological pain she suffered as a result of the loss of control over her life, the changed attitudes toward her of her family and friends and the strain of her illness on her relationship with her daughter. Her daughter was greatly affected by her illness and had difficulty understanding why her mother could no longer participate in activities with her. While she arranged for her daughter to be raised by her brother and sister-in-law who have three sons, she was saddened that she could bear no other children to provide brothers and sisters for her daughter.

In view of the woman’s extensive losses and suffering, the aggregate award on the first cause of action was well within the bounds of reason. The question remains whether, notwithstanding the reasonableness of the award, the trial court correctly included in its instructions on damages, a separate instruction on loss of enjoyment of life. The trial court’s instructions to the jury were entirely proper.

The complainant commenced an action to recover damages for conscious pain and suffering and wrongful death. The woman’s gynecologist and his professional corporation are charged with various acts of medical malpractice stemming from his failure to properly diagnose the woman’s breast cancer and to provide appropriate medical care and treatment. The jury, after finding the accused 90% liable and the deceased woman 10% contributorily negligent, rendered award of damages, in accordance with the court’s instructions and special interrogatories.
The accused gynecologist immediately moved to set aside the verdict on the grounds that as to liability the verdict was against the weight of the evidence and inconsistent. The gynecologist further charged that the damages awarded for the injuries were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the complainant. The amount of the judgment with interest, costs and disbursements totaled $845,772.59.
The accused gynecologist’s appeal, arguing that the verdict as to liability is against the weight of the credible evidence adduced at the trial, the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and the awards to the woman’s child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.

The trial court’s denial of the accused gynecologist’s motion to set aside the verdict in favor of the complainant as against the weight of the evidence is affirmed. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence. On such a review, the evidence must be viewed in a light most favorable to the complainant to determine whether a sufficient rational basis exists to support the jury’s finding of liability as to the accused.
One of the key issues in controversy at trial was whether the lump that the gynecologist first noticed in the woman’s breast in September 1982 was the same as the cancerous tumor surgically removed from the woman’s breast one year later. Apparently because of the woman’s history of being cystic, the gynecologist was not overly concerned about the lump upon its initial appearance. According to his trial testimony, after making a tentative determination that the lump was a one centimeter galactocele and making a diagram indicating the location of the lump, he advised the woman to return for a follow-up examination in two or three months. He conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the woman to examine her breasts during the intervening period. His office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to the woman.

In the course of the woman’s examination before trial, conducted prior to her death and read into the trial record in pertinent part, she testified that her gynecologist had found her to be in good health at the time of her checkup in September 1982 and told her to return in a year. Discovery of a painful lump and swelling under her left arm prompted the woman to return to her gynecologist. During that examination, she saw a diagram in her file with an X where the lump was. To her surprise, her gynecologist had been aware of the lump, identified it as a cyst and reassured her that he was watching it. No recommendation was issued that a mammography be performed or another physician be consulted. Her doctor simply prescribed vitamins and instructed her to return after her next period. Only later when she consulted the surgery doctor, upon her gynecologist’s recommendation did she learn the gravity of her condition. The surgeon was able to confirm the presence of cancer after only a brief examination because the skin in the area of the lump had a dimpling effect resembling the skin of an orange when it was palpated in a certain manner. Owing to the advanced nature of the cancer, a lumpectomy rather than a mastectomy was later performed. Following surgery, the woman was placed on a regimen of hormonal therapy and later chemotherapy.
The gynecologist’s expert evidence consisting of the testimony of a specialist in obstetrics and gynecology, and a pathologist, was presented to refute the allegations of medical malpractice. The accused parties’ experts were consistent in their opinion that although the lesion which was palpated in September 1982 was in the same location as the tumor removed in September 1983 the former did not lead to the latter. The basis for the opinion was the theory of doubling times which refers to the growth rate of tumors. According to the doubling times concept of oncology, a tumorous mass hypothetically doubles in size every 60 days. If the theory were followed in its strictest sense, the woman’s September 1983 tumor would not have been palpable in September 1982. However, the accused parties’ experts agreed that studies measuring the growth rate in the human breast as opposed to the laboratory have shown doubling times ranging from 20 to 209 days. The gynecologist expert also conceded that the failure to take any measures following the discovery of a lesion in the woman’s breast in September 1982 would have been a departure from accepted medical practice. His opinion that the woman’s gynecologist had acted in accordance with accepted medical standards in the community stemmed from his rejection of the woman’s statements that her gynecologist did not tell her about the lump.

With due deference to the jury’s determination based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, we cannot say that the evidence so preponderant in favor of the gynecologist that the jury could not have reached their conclusion upon any fair interpretation of the evidence. Viewing the entire body of evidence, it was entirely plausible for the jury to conclude that the lesion noted in the woman’s medical record in 1982 developed into the malignant tumor removed in 1983 and to find that the gynecologist was negligent in failing to order tests or to follow up his initial examination to check the condition of the lump. The total verdict reflected a thoughtful evaluation of the evidence and not merely a determination, as the gynecologist suggest, which reflected an overriding sympathy for the woman’s infant daughter. Therefore, the verdict as to liability must stand.
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Medical malpractice lawsuits can be sought for many different reasons. Some of them involve birth injury, and some, like the present case involve the care of the elderly. Elderly care homes in New York are governed by many laws, the application of these laws can differ depending on the court system. When a party to a case feels that the rights of one of the parties has been violated, or the laws in the case have been misapplied, it becomes the job of the Supreme Court to evaluate the outcome and decide if the case needs to be reviewed.

In February of 2009, an elderly woman was living as a long term patient of a nursing home in Rochester, New York. One of the issues that placed her in the care of the home involved a bladder problem. This woman was unable to void her bladder without the assistance of a catheter. Therefore, every day, she had to wait on one of the staff of the home to come and help her to urinate. One night, the staff member failed to come to the aid of the woman. She was desperate for relief and decided that she would exit her bed by herself and attempt to go to the bathroom. When she stood up from her bed, her bladder released causing a puddle on the floor of her room near her bed. She slipped in the puddle and suffered from severe injuries including broken bones. She was not treated for her injuries until her son in law arrived several days later. Her son in law is a doctor. When she told him about the injury and that she was in horrible pain from it, he had her transported by ambulance to the hospital. It was only at that time, that the extent of her injuries were revealed. Her family was distraught that their mother had not received the minimum standard of care that was expected. They filed a medical malpractice lawsuit in her behalf. They used as a standard for their contentions that the public health laws had been violated a case that involved another patient of a long term care nursing facility.

This woman was a young woman who was in a persistent vegetative state. The case is referred to as Doe. The reason that her mother filed a lawsuit alleging violations of the public health laws was that her daughter had been injured in an automobile accident. She was in a persistent vegetative state when it became apparent that she was pregnant. Since she had been a resident of a long term home for more than a year at that point, it was obvious that she had been raped while in their care. She delivered a baby boy by caesarian section. DNA evidence was used to determine which employee of the facility had raped her. Her mother’s contention was that her daughter did not receive the minimum standard of care for a patient in her condition as evidenced by the fact that one of the staff had raped and impregnated her. She proved her point and won her lawsuit. The case is now used as a precedent for nursing home violations. The public health law was instituted to prevent the types of abuses that were evidenced in the current case and the case of Doe. In order to insure that our loved ones who by necessity are bedridden and in a long term home facility, laws that govern insufficient care are important. Nursing homes must be accountable for any abuse or neglect that may occur on their property. However, because the laws are so complicated as they relate to nursing home abuse, it is important for anyone who believes that their loved one has been treated inappropriately to contact an attorney in Brooklyn or Long Island.
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The Facts:

On 8 April 2005, the subject infant was born at a hospital. Allegedly, the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of the labor and delivery. Though the infant was transferred to another hospital on 9 April 2005 for almost two weeks, he was transferred back where he remained until 24 May 2005. Thereafter, he was treated at the same Hospital through 2006.

A claim for medical malpractice against the New York City Health and Hospitals Corporation thereafter ensued brought by the infant’s mother, individually and on behalf of her son, the subject infant. It is alleged that the infant suffers from brain injury and severe developmental delays.

The Ruling:

In the case at bar, the court lacks jurisdiction to grant leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the action. As to the infant’s claims, based on the dates of the alleged malpractice, a notice of claim should have been served on respondent by 7 June 2005; however, the infant is the beneficiary of a CPLR infancy toll. Hence, the court may consider the application pursuant to General Municipal Law.

Under the rules, in determining whether to allow a late filing in Sufffolk or Westchester, the court must consider various factors: whether the petitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in defending on the merits.
Here, although the infant had a complicated course in the hospital following delivery, a difficult hospital course, as evidenced by entries in the Hospital’s records at the time of the petitioner’s birth, does not, standing alone, provide notice of the facts underlying a malpractice claim. Besides, entries in the medical records reveal that the infant was developing normally at the time of discharge and there was no indication of a long term injury. In fact, in the supporting affidavit of the infant’s mother, she admits to being aware of such conclusion by noting that at the age of three months her son had met all developmental milestones. Moreover, a note of a 20 July 2006 neurology visit supports such conclusion. Furthermore, sometime in October of 2006, the infant’s mother also stated that, at about 17 months post-delivery, her son had once again met all milestones. The infant’s mother stated that she did not learn of her son’s alleged delays until some point thereafter and that it was not until 2008 that more findings led her to believe that her son’s damages were in fact related to his birthing process. Evidently, the respondent could not have been aware of any birth injury attributable to the delivery within 90 days of the date of accrual, or a reasonable time thereafter, as there was no indication that the infant suffered any alleged delays until later. Hence, the subject medical records alone, on their face, do not evince that respondent, by its acts or omissions, inflicted injuries on the infant and that respondent should have been aware of the same within the applicable 90 days, or a reasonable time thereafter.

In addition, the mother’s excuse for not being aware that her son’s problems could have been caused by malpractice was that she only has a high school education and was 23 years old at the time of her son’s birth is bereft of merit. Ignorance of the law requiring that a notice of claim be filed is not an acceptable excuse.

What’s more, there is no support for the assertion that the delay was the product of infancy or of the need to provide the infant with extraordinary care. Petitioner has failed to offer a reasonable excuse for the delay in filing the notice of claim.

In sum, the petitioners failed to offer the necessary nexus between the act of the respondent and any injury to petitioner that would put the hospital on notice that a claim would be filed with regard to the delivery at issue. The mere assertion that because the infant suffered a difficult neonatal course puts the respondent on notice of a malpractice claim is rejected. To prevail on the application, petitioner must establish that respondent had notice that the hospital departed from the standard of care in treating the infant, and that those departures caused the infant’s injuries. Here, petitioner has not established these elements; hence, the application is denied. The petitioners’ application, by Order to Show Cause, for an order seeking leave to file a late notice of claim and setting an immediate date for an examination of the claimant pursuant to the General Municipal Law is denied.
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