Articles Posted in Bronx

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.”

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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.

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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.

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