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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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The Facts:

The infant’s mother was under the care of East Bronx Medical Group during her third pregnancy. On 2 April 1969, at about 11:30 P.M., she was admitted to Bronx Lebanon Medical Center in the early stages of active labor.

Doctor-one of the Medical Group determined late in the mother’s pregnancy that her uterus may have been developing larger than normal. X-ray studies ruled out any congenital abnormality or multiple births. Clinical pelvimetry, which is an internal examination of the dimensions of the pelvic canal, revealed that the intertuberous measurement was 8.0 centimeter which indicated that the mother had an adequate pelvis for the delivery of a child. Moreover, the mother had already given birth to an average-sized baby without any difficulty.
Present in the delivery room and attending to the mother were doctor-two, the patient’s private obstetrician and a member of the Medical Group, and doctor-three, a second-year resident who had performed 150 deliveries, a third of which were forceps deliveries.

At the delivery room, within two hours of labor, the head was engaged; and within three hours, the cervix was fully dilated, was completely effaced and the membranes ruptured. At this point, doctor-two and doctor-three found no abnormality and they found no reason that the fetus could not be delivered by normal vaginal delivery. Fetal distress was noted at 2:23 A.M., the umbilical cord was found wrapped around the child’s neck, a probable cause for the fetal distress. The fetus was low down in the pelvis, in a face up position rather than the more common face down position. Several unsuccessful attempts were made to manually rotate the fetal head and, since time was of the essence, doctor-two decided that a mid-forceps delivery was necessary. Doctor-three agreed with the decision. Doctor-three used the forceps under the supervision of doctor-two and the fetal head was delivered by intermittent traction and relaxation in an attempt to simulate the normal uterine contractions. Doctor-three testified that he had to exert more force than usual to deliver the head in the face up position, but used no more force than was necessary. On delivery of the head it was discovered that the umbilical cord was wrapped around the neck and that the child was cyanotic. The umbilical cord was removed and gentle manual traction was applied to the head in an attempt to deliver the rest of the fetus. However, it was then observed that the shoulders were not being delivered; they were impacted, a condition known as shoulder dystocia. The right shoulder had overridden the public bone and was obstructed by it, preventing delivery. Because the baby was partly delivered, a Caesarian Section at this point was impossible. The child had to be delivered vaginally and, since the child had difficulty breathing, his shoulder had to be freed within a few minutes. In this situation, doctor-three applied gentle traction to the head to extract the child, each physician attempted to rotate the shoulder by the corkscrew method, that is, the manual rotation of the fetus, and doctor-two applied fundal pressure, that is, downward pressure on the mother’s abdomen, and doctor-three inserted his hand to accomplish the delivery of the posterior shoulder (left) first, permitting the right shoulder to slip under the public bone.

As a result, the baby sustained a 2mm depressed occipital fracture, injury to the upper and lower brachial plexus, and a fractured clavicle which healed.

Thereafter, a medical malpractice action ensued on the basis of the birth injury or birth injury accident suffered by the infant plaintiff.

The jury awarded to the infant plaintiff the sum of $300,000 for birth related injuries and to the infant’s father the sum of $50,000, reduced on consent to $25,000, for loss of services.

The jury found that several departures were the proximate cause of the injuries.

The Ruling:

The failure to do an x-ray pelvimetry was not a departure from accepted medical practice and did not cause the infant’s injuries. X-ray pelvimetry is a technique used to compare planes of the pelvis with the size of the fetal head. The record reveals that an intertuberous diameter of 8.0 centimeters does not indicate a need for x-ray pelvimetry. Its use would have been futile as the record reveals that for labor to progress there had to be no cephalo-pelvic disproportion. Indeed, the mother had been pregnant twice before and delivered once and had never had pelvimetry performed. Furthermore, shoulder dystocia cannot be forecast by x-ray pelvimetry, or any other diagnostic tests, thus, such procedure would not have avoided the problem. There is no explanation as to why the dystocia occurred.

The court finds that the jury’s decision is against the weight of the credible evidence that there was malpractice in allowing labor rather than performing a Caesarian section.

Where alternative procedures are available to a physician, any one of which is medically acceptable and proper under the circumstances, a physician cannot be held liable for malpractice when he uses one of two acceptable techniques. There is a much higher risk of death to the mother when the delivery is by Caesarian section rather than by vaginal delivery.
Moreover, the court does not find any medical malpractice in the use of the forceps to deliver the child in the face up position. There was no deviation in the type of forceps used or in the actual application of the forceps. Plaintiffs’ expert even admitted that the use of forceps was justified in the presence of fetal distress and that the type of forceps used was proper.
Here, it cannot be said that excessive force was used to deliver the shoulder merely because the child was delivered with palsy, a known complication of dystocia. Presence of an injury does not mean that there was negligence.

Furthermore, the failure to obtain the mother’s consent to have doctor-three deliver her baby under the direct supervision of doctor-two should not have been given to the jury. Doctor-three was a resident and it was the custom at that hospital for all the obstetricians to allow residents in their training, especially in the advanced stages of their training, to do complicated deliveries. The plaintiffs continually tried to make a distinction at the trial as to the standard of care rendered a private patient and a service patient. There is no difference. As far as the consent issue is concerned, the mother, by going to Bronx Lebanon, consented to the customs and practices of that hospital. The real issue concerning doctor-three was whether he caused any of the injuries which would not have occurred had the mother not wanted him there. Doctor-two stated that even if the delivery had been attempted alone he would have needed assistance when the emergency arose.

Also, the argument that a Caesarian section could have begun in five minutes is against the weight of the credible evidence. The attending physicians did not see the need to subject the mother and the baby to the risks of a major surgical procedure. The court finds no support for the jury’s finding that the failure to do x-ray pelvimetry caused the injuries suffered by the infant.

The other findings of malpractice are against the weight of the credible evidence. Thus, the judgment is reversed and a new trial is proper.

The court did not reach and have not considered the claim of excessiveness. The reduction referred related only to the $50,000 awarded for loss of services which has been reduced by the Court, upon plaintiffs’ consent, to $25,000.

In sum, the judgment for plaintiffs against defendants is reversed, on the law and on the facts, as to defendants-appellants East Bronx Medical Group, doctor-two, doctor-one and another doctor, and the matter is severed as to said defendants and remanded for a new trial; the portion of the judgment dismissing the complaint as to the defendants Bronx Lebanon Medical Center and doctor-three is affirmed.
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Plaintiffs, the infant’s natural parents, instituted the action which alleged a cause of action for the infant’s wrongful death on the ground that her premature delivery and death were due to the medical malpractice of the defendant. Plaintiffs alleged that the infant expired at “the age of one hour.” Plaintiffs asserted a claim for emotional distress and a claim for loss of services.

It is well-settled rule that a wrongful death action may be brought on behalf of an infant who is born alive but dies shortly after birth. The law in New York states that an expecting mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage unless she suffered an independent physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth. Although plaintiff did not suffer such injury, she alleged a claim for emotional injuries nonetheless.

Subsequently, the Brooklyn court decided another case ruling that medical malpractice resulting in a miscarriage or stillbirth of a fetus is violative of the duty of care owed to an expectant mother and entitles the expectant mother to recover damages for the emotional distress caused by the birth injury, even in absence of an independent physical injury to the mother.

Defendant and third-party defendant moved for summary judgment dismissing the action, arguing that the infant was stillborn as a matter of law. Plaintiffs opposed the motion asserting that the infant was born alive. The court denied the motions on the ground that defendant’s and third-party defendant’s submissions did not establish that the infant was stillborn as a matter of law.

The Bronx Plaintiffs were directed to serve an amended complaint alleging that the infant was stillborn if they were intending to take that position at trial. The court ruled that the defendant would not be prejudiced by plaintiffs’ change in position since it was afforded an opportunity to conduct all discovery that had been necessitated by the change and that it would be improper to apply judicial estoppel to preclude plaintiffs from asserting that the infant was stillborn since plaintiff never obtained a judgment in a prior action by asserting that the infant was born alive.
When the matter was tried, plaintiffs maintained throughout the trial that the infant was stillborn and the jury agreed The jury found that defendant’s medical malpractice was the proximate cause of plaintiff’s emotional injuries and awarded her $1 million dollars for past pain and suffering. Although the jury found that the plaintiff was negligent in failing to seek further treatment after she was last seen at defendant’s hospital, they concluded that her negligence was not a proximate cause of her injuries Defendants claimed that the court erred in permitting plaintiffs to assert a position inconsistent with their position at all previous stages of the litigation.
The court upheld the decision of the jury. According to the court, while the doctrine of judicial estoppel, when properly applied, will preclude a party from asserting a position in an action that is contrary to or inconsistent with a position previously asserted by that party, there was basis not to apply the doctrine in this case.

Accordingly, plaintiff’s initial position that the infant was born alive was never accepted by the court. While plaintiffs took this position in their opposition to defendant’s motion for summary judgment, the motion was denied because defendant’s submissions did not establish as a matter of law that the infant was stillborn. There was never a finding that the infant was born alive.
The court opined that a jury verdict will not be set aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence. In this case, the verdict was supported by legally sufficient evidence and was not against the weight of the evidence.
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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.
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On October 11, 1981, a woman of foreign birth delivered a set of twins prematurely at a New York Hospital in Kings county. Two weeks after his birth, while he was still in the hospital, the mother noticed a swelling on this thigh. An x-ray performed at the hospital revealed that the baby had a broken leg. There was no legitimate cause for the injury provided to the parents of the child. Nine years later, the mother attempted to file a medical malpractice lawsuit based on the child’s birth injury. She stated that she should be allowed to file a late claim because she was born in a different country and was not aware that she was entitled to file a medical malpractice lawsuit. She stated that she was uneducated and that she requested permission to file a late cause of injury. The court allowed her to file a delayed motion. At which point she was granted a trial. However, the Supreme Court later dismissed the motion and stated that she was not allowed to file. The Brooklyn court maintains that ignorance of the law is not an acceptable excuse for a failure to file.

The child, however, may be able to file at a different date. The child has suffered enduring physical trauma from this injury. His broken leg did not mature at the same rate as his uninjured leg. The injury has left him with one leg that is shorter than the other causing a visible limp when he walks. There is indisputable proof that the child’s injury occurred at the hospital and while he was in the care of the medical staff at that hospital. The enduring pain and suffering that the child has experienced throughout his life is also undisputed. It is clear therefore, that the hospital was aware of the injury and should have been familiar with the facts constituting the claim within a reasonable timeframe. The hospital is within its rights to claim that a nine year or more delay would prejudice them. They contend that the medical staff that treated the child may not still be employed by the hospital and that they may not be able to locate them. If they do locate them, it is likely that they will not remember one birth out of all of the births that they attended while at the hospital nine years later. The mother contends that the hospital had her son’s medical records and that should account for notice of the injury in a timely fashion.

The court does not agree with that contention. The court maintains that a victim of medical malpractice has 90 days to file a claim from the date of the injury. Failure to file within that 90 day framework poses a problem for all parties concerned. In cases such as this one where the injury was evident, but the enduring injury was unforeseeable, causes problems and in some cases may become an exception to the rules of delay. However, the court in this case ruled that the hospital did not have actual notice of the facts underlying the claim in a reasonable time period.

One of the justices from The Bronx dissented from the others in regard to this injury. He felt that the late notice should be permitted because the leg did not present as shortened or lame within 90 days of the date of injury. The improper treatment of the leg is what caused the lameness and inability to function normally. That injury was not noticeable until the child was much older. The dissenting justice contends that the hospital should have been able to predict that a broken leg on an infant in their care was suspicious and would probably result in a medical malpractice claim.
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On 3 April 2008, a detective filed a misdemeanor complaint against defendant and charged her with Endangering the Welfare of a Child.

The detective or the deponent, in pertinent part, the factual portion of the complaint, alleged: deponent is informed by a doctor (the informant) of a hospital that, on or about 30 March 2008, at approximately 6:00 p.m., the defendant brought her 17-month old son at the hospital to be treated for a burn injury where defendant also stated that her 3-year old son was also burned with an iron at their residence; deponent is further informed by informant that he examined and observed a second degree burn, that was at least 2-3 days old, 6 inch long and 1 inch wide on the child’s left thigh, and that, defendant’s story of how the burn occurred is not consistent with the child’s injury; deponent is further informed by the informant that the above described actions caused the child to suffer substantial pain, to fear physical injury and to become alarmed and annoyed; deponent is further informed by defendant that the child’s date of birth is 19 October 2006.

The People did not answer ready for trial.

Subsequently, defendant was arraigned and assisted by a court-appointed interpreter of the Urdu language.

Defendant has moved for an order dismissing the accusatory instrument on the grounds that her speedy trial rights pursuant to Criminal Procedure Law have been violated. The People oppose the motion. Thereafter, several adjournments of the case were made.

The Ruling:
Under New York’s readiness rule, when a defendant is charged with at least one non-felony offense punishable by more than three months of incarceration, the case must be dismissed when the People have not answered ready for trial within 90 days of the commencement of the action in The Bronx and Brooklyn.

Here, defendant is charged with Endangering the Welfare of a Child which is a “class A” misdemeanor and is punishable by up to one-year imprisonment. The time-limit in this matter is 90 days from commencement of the action. The action was commenced on 3 April 2008 when the People filed a complaint in criminal court.

As a rule, defendant bears the burden of going forward, by sworn allegations of fact, to show that there has been an inexcusable delay beyond the time allowed by the statute. Once the defendant meets his burden, the People have the ultimate burden of justifying that delay.
A review of the defense motion papers, the People’s response, the court file and minutes of several proceedings discloses that the periods of delay are attributable as follows:

The entire adjournment from 3 April 2008 through 20 May 2008, 47 days, must be charged to the People. The adjournment was ordered to enable the People to convert the complaint by serving and filing a supporting deposition of the doctor (the informant). The People served and filed that supporting deposition off calendar on 18 April 2008. However, the People did not serve and file a certificate of translation to establish that someone fluent in defendant’s language, Urdu, translated the admissions that the defendant allegedly made to the doctor and the admission that the defendant allegedly made to the detective (the deponent).
On 20 May 2008, defendant raised her lack of understanding of the English language as well as the lack of understanding of the doctor and the detective of Urdu. The People have not contested those assertions. Under such circumstances, the court has the authority, at the pleading stage of the case, to require that the People to remove the cloud over the facial sufficiency of an accusatory instrument by submitting proof in the form of a certificate of translation that defendant’s alleged admissions were translated from Urdu to English by someone capable of making those translations.

In cases where a defendant’s alleged admissions are crucial to the facial sufficiency of an accusatory instrument, as the case here, the fact that the admissions were not given in an English-to-English-only-informants calls into question the substance of the admissions. Indeed, translations of a defendant’s alleged admissions to an unavailable translator cannot be admitted in evidence unless there is proof that the translator was an agent of the defendant for that purpose and there was no motive to mislead and no reason to believe the translation is inaccurate.

Here, the absence of a certificate of translation covering the alleged admissions of the defendant referred to in the complaint are latent defects that do not establish elements of the crime charged by facts of an evidentiary character. Without defendant’s alleged admissions, the accusatory instrument does not show that the defendant engaged in conduct likely to be injurious to the child which is an element of the crime.

It is true that medical records of a hospital are business records and, if certified, satisfy the rule against hearsay and entries in such records that contain statements by a patient or the parent or guardian of a patient are made to assist medical personnel in diagnosing and treating an ailment, i.e., medical history, are an exception to the hearsay rule. Nonetheless, the issue here is the identity and translating credentials of the doctor who translated the admissions to the informant doctor. While it may be presumed from the circumstances that the doctor interpreted the defendant’s alleged statements to the informant doctor, the medical records do not attest to the fluency of the doctor-translator in the Urdu language. Indeed, the medical records do not even refer to the language in which the statements were made, or for that matter, that spoken words were involved. For all the court knows, the doctor-translator had interpreted the defendant’s hand gestures. This fleeting reference to interpretation hardly approximates the content of a certificate of translation, which must assure the court that the translator was capable of giving an accurate English translation of the non-English speaking individual’s statement(s) and did so.

Thus, the court cannot conclude that the statements attributed to the defendant in the complaint are an accurate or even near accurate English translation of what the defendant allegedly said to the doctor and the detective. Accordingly, the court holds that the defendant’s alleged admissions contained in the complaint were not fully corroborated when the People served and filed off calendar a statement of readiness for trial. As a result, the statement of readiness was a nullity, and the entire adjournment, 47 days, is charged to the People.

The adjournment from 20 May 2008 through 10 July 2008, 51 days, must also be charged to the People because they did not serve and file a certificate of translation.

The adjournment from 10 July 2008 through 29 July 2008 is not chargeable to the People because it was ordered to enable the People to reargue the court’s previous ruling that a certificate of translation was required to convert the accusatory instrument into an information. The delay was an extension of the adjudication of the defendant’s demand that a certificate of translation be filed.

The adjournments from 29 July 2008 to date are not chargeable to the People because they were ordered to enable the defendant to serve and file the instant motion, for the People to respond and for the court to render a decision.

In sum, the People must be charged for a total of 98 days of speedy trial time which exceeds the statutory time-limit of 90 days, defendant’s motion for an order dismissing the accusatory instrument is granted.
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A woman was pregnant for the third time. For her first two pregnancies, she was given prenatal care by the doctors of a medical clinic. She delivered her first two babies through vaginal delivery and at both times, an episiotomy was performed. An episiotomy is a cut made between the vagina and the anus to allow the baby’s head and shoulders to pass easily out of the birth canal. The surgical cut is made to prevent vaginal tearing which is more difficult to repair.

The woman’s third pregnancy progressed uneventfully. As she was in active labor, the doctor who attended her left the delivery room because his shift for the day was over. Another doctor from the same medical clinic attended her delivery. As the woman was being delivered of her child on July 22, 1997 her vagina suffered a laceration. The doctor who attended her surgically repaired the laceration.

After the delivery of her third child, the woman began experiencing a sharp throbbing pain in her pelvic area. She was able to perform her usual daily tasks and activities but she began using pain relievers. She also began experiencing painful sexual intercourse with her husband but the pain eventually became less severe.

She first reported the pain to the doctors who delivered her baby two years after she gave birth. The same obstetrician who delivered her third baby examined her but found nothing wrong with her. A year later the woman saw the doctor again and complained of pain on her lower right side. She went to see the same doctor three more times complaining of the pain in the same general area before a sonogram was performed on her on January 22, 2003. The sonogram showed that the woman had an ovarian cyst.

Frustrated with the pain and not knowing the source of the pain, the woman consulted other general physicians. The source of her pain was not discovered until in 2007, the woman was rushed to the emergency room because of tremendous pain. A pelvic x-ray was performed on her on April 9, 2008 and the x-ray showed that something metallic was lodged in her perineum (the area between the vagina and the anus). The metallic object had the same size and shape of a semi-circular suture needle.

She confronted the obstetrician who delivered her third baby with the x-ray results. The doctor told the woman that since she had been suffering for 15 years, chances are, the metallic object had already been enveloped by scar tissue and it should not bother her anymore. The doctor told her that she can have it removed or leave it in place.
The woman filed a suit in damages for the medical malpractice of the two doctors who delivered her third baby. The doctors promptly filed motions for summary judgment asking that the complaint be dismissed on the ground that the cause of action for damages was already prescribed by the statute of limitations. The doctors contend that a medical malpractice action can only be filed within two and a half years from the act, omission or failure complained of.

And if the medical malpractice suit were based on the discovery of a foreign object in the body of the person filing the medical malpractice suit, the action must be brought within one year from the discovery of the foreign object. The doctors claim that the woman was aware of the facts that should have led to the discovery of the foreign object since 1997. The doctors also oppose the woman’s claim for punitive damages.

The only question before the Court is whether or not the complaint should be dismissed.
The Court held that the woman, not being a medical professional, could not have known that there was a foreign object lodged in her perineum. The doctors she consulted could not even discover that there was a foreign object; they failed to connect the pain she was experiencing to a foreign object that was lodged in there.

A material issue of fact must still be tried. A jury must hear evidence to prove what object is lodged inside the woman’s perineum. The woman’s expert opined that the foreign object is a suture needle which looked like a suture needle commonly used in episiotomy repair. The doctors’ expert, on the other hand, opines that it is impossible to know with certainty what the foreign object is without removing it; and, it is impossible to say with certainty how the foreign object got there.

As to the issue of punitive damages, the Court held that punitive damages can only be awarded when the doctors showed callousness and evil motive not only in committing the medical malpractice but also in concealing the medical malpractice.

The Court granted the motion for dismissal of the cause of action for punitive damages but remanded the case for further proceedings. Courts in The Bronx and Brooklyn would rule the same.
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A 34 year old woman was pregnant. This was her third pregnancy, the first two had been terminated and this is the first time that she wanted to bring the pregnancy to term. She her last menstrual period in December 1999 and her estimated date of delivery was September 7, 2000.

The woman did not have an abnormal PAP smear; she has never had any surgery on her cervix but she did have a heart murmur, she has had two shoulder surgeries and two abortions and she has a uterine fibroid which caused heavy bleeding and cramping at least one year before becoming pregnant.

The reason why she came to the obstetrician was because she wanted to get pregnant but was having difficulty getting pregnant. The doctor saw a fibroid and told her that her fallopian tubes were occluded. The doctor advised her to have her tubes “blown out.”

Four months after her consultation with her obstetrician who was also a fertility specialist, she missed her period and so she took a home pregnancy test. She tested positive so she went back to her obstetrician who recommended blood work tests on her and wrote her a prescription for prenatal vitamins. She had an ultrasound and an amniocentesis to rule out genetic problems with her baby since she was already 34 years old. All the test results were normal.

Five months later, the woman experienced lower back pain and she felt that she needed to go to the bathroom to move her bowels. When she got to the bathroom, the urge to defecate was gone. Instead, she felt a bulge coming out of her vagina. She pushed the bulge back. She talked to her sister-in-law who told her to call her obstetrician.

She called her obstetrician and on the phone, the doctor told her to stand up and to see if she felt the same bulge coming out of her vagina but there was no bulge. The doctor advised her to rest as it might be hemorrhoids and to see her tomorrow. The day after, she felt the bulge again and went to see the doctor. She called her doctor and told him about the bulge she felt again. He told her to go to the hospital.

When went to the nearest hospital where the obstetrician on call saw her and advised her that her baby may have severe disabilities if delivered so soon. She made the pregnant woman lie with her head lower than her legs. She then arranged her to be transferred to another hospital where her regular obstetrician can better advise her and treat her. She was given medication to stop her contractions.

At the time she got to the university hospital where her doctor had admitting privileges, the doctor told her that she needed an emergency dilation and curettage. A D&C is a procedure that involves dilating the cervix artificially and scraping the uterus. It will cause an abortion and a termination of her pregnancy. The doctor also said that she also had the option to deliver the baby. She was told for the first time that she had an incompetent cervix and was already in labor even if she was only five months pregnant.

She was readied for an emergency cesarean section. She delivered a baby who weighed only one pound and thirteen ounces. The baby had significant developmental delays and disabilities.

The mother then filed a suit in damages for medical malpractice against her obstetrician for failing to diagnose her incompetent cervix; the obstetrician who saw her in the emergency room and refused to perform either a cesarean section on her or else a D&C so that she did not have to give birth to an impaired child and for her failure to inject her steroids to stop the labor; and the obstetrician who performed the emergency cesarean section on her and delivered her baby.

The doctors all filed motions for summary judgment asking that the complaint against them be dismissed. The Court held that the complaint against the doctor who saw the woman in the emergency room showed her entitlement to a summary judgment. She did not commit any medical malpractice when she gave the woman first aid to stop the labor and transport her to the nearest medical facility where her regular obstetrician can better diagnose her and treat her. Hospitals in The Bronx and Westchester have dealt with this problem.

The Court held that her regular obstetrician’s motion for summary judgment should be denied as there exist a material issue of fact that has to be tried by a jury. The question of whether or not the doctor was negligent in not immediately having the woman admitted into the emergency room at the university hospital where he had admitting privileges has to be tried by a jury; the question of whether or not with the woman’s history and with the examinations he had done, he should have diagnosed that the woman’s cervix was incompetent.
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The couple alleges that while the wife was a patient at the hospital and under the care of various accused attending physicians during her pregnancy and delivery, the medical team was guilty of medical malpractice in failing to properly anticipate a footling breech delivery and provide competent physicians to deal with an emergency created at the time of birth. It is further alleged in the couple’s bill of particulars that the accused parties should have delivered the child by Caesarean section. Instead, it is contended that the accused parties chose a vaginal delivery which delayed the delivery and was extremely painful by reason of bilateral nuchal arms. As noted in the hospital records annexed to the motion papers, the delivery also involved the unsuccessful use of forceps, cervix stretching device and super pubic pressure.
Accordingly, the couple alleges carelessness, negligence and medical malpractice to each of the medical care team member as well as the hospital in the first cause of action. The complaint also claims that the mother and her infant were caused to suffer and sustain severe and serious physical, emotional and mental injuries. In the couple’s second cause of action, it is further alleged that the accused parties failed to obtain the informed consent of the mother regarding the consequences of the doctors’ actions during the delivery. The third cause of action by the complainant is for the alleged loss of services of his wife.

The accused parties submit that under the New York law, practiced in The Bronx as well as Brooklyn, there is no cause of action for emotional harm resulting indirectly through the reaction of a complainant to injury caused to another. Therefore, the complainant’s case, as stated on the woman’s emotional injuries resulting from the stillborn birth must be dismissed.

The accused parties contend that the complainant is in effect claiming only those indirect emotional injuries, as evidenced by her response in the bill of particulars to a demand for the delivery of stillborn child after enduring all the pains and discomforts of full term child bearing and delivery as well as severe emotional trauma including depressive reaction.

It is recognized by the accused parties that there are situations where a cause of action may be stated for emotional harm resulting directly to a complainant from the negligence of another. On the other hand, the accused parties argue that no cause of action is stated when emotional harm results indirectly through the reaction of the complainant to injury negligently caused to another person.

The couple alleges that due to the negligence of the accused parties or because of actions taken by them without the wife’s informed consent, the wife was caused to deliver a stillborn infant. No physical injuries are claimed. Rather, the wife seeks to recover solely for mental or emotional injuries and her husband seeks to recover for the loss of his wife’s services. The Special Term denied the accused parties’ motions for summary judgment. It is well established that even assuming the death of the fetus in the uterus was caused by the accused parties, the wife may not recover for emotional and psychic harm as a result of the stillborn birth because it is a wrongful act with the absence of independent physical injuries.

It is not claimed that the alleged medical malpractice which resulted in the physical injuries alleged in the amended bill of particulars in any way caused the stillbirth. With the absence of independent physical injuries, the wife may not recover for emotional and psychic harm as a result of the stillborn birth. In the instant case, the episiotomy was merely another aspect of the childbirth procedure itself, but was not a cause of the stillbirth so as to warrant recovery.
The accused parties argue that the complainant may not recover solely for emotional injuries caused by a stillbirth, and also may not recover for merely another aspect of the childbirth procedure itself when there is no real injury alleged. It is the position of the accused that every layman knows that the act of birth is routinely painful, and that the wife did not suffer any independent physical injuries. The complainants attempt to bolster the position by maintaining that a review of the hospital records will show that the wife was under general anesthesia for the delivery, and, therefore, cannot claim any independent physical injuries.

Under the circumstances of the case, when it is alleged that the wife independently suffered and endured excruciating pain and unnecessary injury, apart from the routine pains of childbirth, due to the negligence of the accused parties in failing to properly anticipate a footling breech delivery, in not performing a Caesarean section, and in failing to provide competent physicians to deal with the emergency at the time of birth, the wife was not merely a bystander but was as much a victim of the accused parties’ alleged medical malpractice as the stillborn fetus. It is alleged that the medical malpractice of the accused parties by delaying and prolonging delivery resulted in injuries to the wife as well as the stillbirth of her child.
For these reasons alone, the Court finds that there are issues capable of trial and cognizable under New York law which preclude summary disposition. If in fact the couple are able to prove that the wife suffered independent physical injuries as a result of the accused parties’ medical malpractice, then she would also be entitled to recover for any alleged mental injuries she sustained, including any emotional injuries attending the stillbirth, allegedly caused by the same medical malpractice, as a concomitant to the actual physical injuries she had suffered during the prolonged delivery.

The second cause of action is for the alleged lack of informed consent of the stillborn’s mother, and should not be summarily dismissed. Of course, it is well settled that an injured child has a right to an independent cause of action against a physician for in utero injuries stemming from the physician’s failure to obtain an informed consent, only upon birth. Since we are dealing with a stillbirth, the second cause of action relates only to the stillbirth’s mother. The third cause of action by the husband for the alleged loss of services of his wife also should not be dismissed.

The Court found that the mother contemporaneously perceived the tragic birth. In the modern view, actual observance of the accident is not required if there is otherwise an experiential perception of it, as distinguished from a learning of it from others after its occurrence. The Court applied the temporal proximity rule to the facts in a way which is especially appropriate to the facts.

Indeed, the Court can imagine no more integral an experience than that of a mother giving birth to a child through a protracted and difficult labor and delivery. She perceived that something was wrong, wrong enough to cause her to fear for her child’s life. In short, the complainant had an experiential perception of the accident.

For all the above reasons, the Court find that the mother, even with the absence independent physical injuries, has satisfied the criteria and her claims are cognizable under the New York zone of danger rule. Accordingly, if the claims are substantiated by the evidence upon trial, the mother would be entitled to recover for her asserted emotional distress and mental injuries.
The issues capable of trial of fact that have been raised should not be summarily dismissed. The motion by the accused for summary judgment is denied.
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A woman had been having premature contractions so she was given pitocin, a hormone that would stop the contractions. She nevertheless still gave birth prematurely on April 4, 2008, on the thirtieth week of her pregnancy. The child developed bleeding and inflammation in the brain as soon as it was born. The bleeding and inflammation in the infant’s brain caused him to develop cerebral palsy.

The mother then filed a suit in damages in behalf of her infant son, claiming that the child suffered brain injury due to the of the obstetrician-gynecologist who assisted at his birth. She claims that the obstetrician gave her too much pitocin which made her placenta break. This break in the placenta caused air to leak into the child’s lungs while it was still inside her uterus and caused the bleeding in the infant’s brain. The mother stressed that instead of giving her pitocin to stop her contractions the obstetrician should have just gone ahead and delivered her baby through cesarean section. The mother claimed that because the obstetrician did not timely remove her child from her womb, the rupture of the placenta caused air to leak into the child’s lungs which caused his bleeding in the brain and which caused him to develop cerebral palsy.

The doctor presented her own testimony that there were no indications that the mother’s placenta was already ruptured or was about to rupture at the time that she was admitted. She claimed, as did the experts she presented that the cesarean section performed was performed at just the right time. And she further testified that there is no medical evidence that the bleeding in the child’s brain was caused by anything other than its prematurity. There is also no evidence that an earlier delivery by cesarean section could have prevented the bleeding in the brain. The bleeding in the brain of the child are expected complications of premature birth and are not due to the mismanagement of the mother’s labor and delivery.

The plaintiff then presented her own expert witness who testified that the failure to timely perform a cesarean section is a deviation from common medical practice. The obstetrician practicing in the Bronx and Brooklyn should have seen from the fetal tracings that there was already a threatened placental rupture. The administration of pitocin to stop the contractions is also a deviation from accepted practice as it further increased the risk of rupture of the placenta. These two deviations from commonly accepted medical practice increased the risk of the child developing bleeding in the brain which was the immediate and proximate cause of the child’s cerebral palsy. The expert further opined that had the obstetrician immediately delivered the child by cesarean section, there would have been a significant decrease in the chance of the child developing neurological disabilities.

The Court then ruled that with the presentation of preliminary evidence by both parties and the expert testimony procured by them, there are material issues of fact that have to be determined in this case.

Here, the experts agreed that the infant’s cerebral palsy was caused by the bleeding in his brain. The experts also agree that the infant would not have cerebral palsy had not the bleeding in his brain deprived him of oxygen. In this case, the plaintiff’s evidence may not have proven how the obstetricians acts or omissions decreased or increased the infant’s chances of developing cerebral palsy but the plaintiff’s evidence presented so far is sufficient to prove that material issues of fact have yet to be established at trial and this consideration alone precludes any summary dismissal of the complaint. The fact that so many conflicting factual allegations remain makes it clear that a summary judgment of dismissal of the complaint is not proper at this time.
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