Articles Posted in Brooklyn

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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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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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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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The Facts:

On 30 May 2000, the infant plaintiff was born approximately twelve weeks prematurely in a medical facility operated by defendants. The infant plaintiff suffered from neonatal respiratory Brooklyn distress syndrome, and he was placed in neonatal intensive care, where his blood oxygen and blood acidity was monitored by defendants’ staff. The blood oxygen was continuously measured by a pulse oximeter: a device, attached to the patient’s finger that uses light to measure the amount of oxygen in the blood. A respirator and breathing tube was used when it was noted that the infant plaintiff cannot breathe. At 11:00 AM on the following day,

Defendants’ staff performed arterial blood gas analysis, which is a laboratory analysis of a drawn blood sample that specifies both the acidity and the amount of saturated gas in the sample. The test demonstrated that the pH of the infant plaintiff’s blood was 7.254. At around 2:30 PM, a doctor, also of defendants’ staff, ordered a second arterial blood gas analysis. At 3:00 PM that afternoon, the blood oxygen saturation was over 90%, according to the pulse oximeter. At 4:15 PM, the blood oxygen saturation dropped to around 50%-60% from a previous level of over 90%. Shortly thereafter, defendants’ staff noted that the infant was suffering from a hemorrhage in the lungs. Consequently, the staff cleared the blood from the lungs and then adjusted the respirator settings and breathing tube. The staff then administered a paralytic to immobilize the infant plaintiff and prevent him from removing the breathing apparatus. At 8:00 PM, another arterial blood gas analysis was done, the result of which was a pH of 6.7, which is dangerously low. The staff then adjusted the respirator to administer more oxygen through forced breathing. The following day, medical imaging showed that the infant plaintiff had suffered a brain hemorrhage and hydrocephalus, which is increased intracranial pressure on the brain caused by the accumulation of fluid. The hemorrahge caused periventricular leukomalacia, the destruction of white matter of the brain. This, in turn, caused the infant plaintiff to develop cerebral palsy; a brain injury.

Subsequently, plaintiffs commenced an action to recover damages for the neonatal medical malpractice on the ground of the birth injury or birth injury accident; that defendants, through their agents, engaged in acts and omissions that constitute medical malpractice; that this malpractice caused the infant plaintiff to develop cerebral palsy and caused derivative losses to his mother. At the close of trial, plaintiffs also sought damages for pain and suffering.

The jury returned a verdict for plaintiffs, deciding that defendants’ staff departed from good and accepted medical procedure by failing to monitor the infant plaintiff’s blood gas levels and by failing to maintain a proper acid/base balance in the infant plaintiff’s blood; that these departures were a substantial factor in the infant plaintiff’s present condition; that defendants’ staff should have known that the condition of the infant plaintiff had deteriorated since forced breathing was first administered and that defendants’ staff should have known that the condition of the infant plaintiff would continue to deteriorate. With respect to damages, the jury awarded: $75,000 for pain and suffering of the infant plaintiff up until the present date; $4,500,000 for future pain and suffering of the infant plaintiff, based on a life expectancy of 70 years; $7,500,000 for earnings lost by the infant plaintiff; $4,500,000 for necessary future medical care; $1,500,000 for future therapy needs; $4,500,000 for needed supplies;

$3,000,000 for home or facility care; and $6,000,000 for the derivative claim asserted by infant plaintiff’s mother and natural guardian.

Defendants now move for an order setting aside the jury verdict and dismissing the complaint, or, alternatively, setting aside the jury verdict and ordering a new trial.

Plaintiffs cross-move for an order directing judgment in the instant action.

The Ruling:

Defendants assert four arguments in favor of their motion.

First, that the defendants were prejudiced by the court’s decision to permit testimony regarding claims beyond those specified in plaintiffs’ bill of particulars; specifically, that the bill of particulars makes no mention of any alleged failure to perform adequate arterial blood gas tests.

The court denies the argument, noting the language of the bill of particulars, which alleged malpractice because of the failure to properly and timely oxygenate and failure to properly assess infant’s condition immediately after birth on the part of defendants’ agents. There is no authority cited for defendants’ argument that alleged malpractice immediately after birth would not include malpractice the day after birth, neither is there any authority for their position that an alleged failure to monitor arterial blood gas is a different theory than failure to properly assess infant’s condition. Moreover, since the arterial blood gas tests were part of the infant plaintiff’s chart, there is no merit to defendants’ claim that allowing testimony of the tests constituted prejudice or unfair surprise.

Thus, there is no merit to Long Island defendants’ claim that permitting arterial blood gas testimony prejudiced them.

Second, defendants assert that the court erred when it precluded their expert from testifying that sepsis either caused or may have caused the infant plaintiff’s present condition; that relevant medical records identify that the infant plaintiff was infected by bacteria and there would have been no prejudice or surprise to plaintiffs if their expert testified regarding sepsis.
Here, defendants’ disclosure makes no mention of infection. Defendants’ own neonatal expert conceded that the sepsis theory was an afterthought during direct examination.

Notwithstanding any present argument to the contrary concerning expert disclosure, the strategy of advancing that infection caused the present condition of the infant plaintiff was quite literally conceived by counsel for defendants and their hired neonatal medicine expert.
Thus, there is no merit to defendants’ contention that the court should have permitted their expert to testify about sepsis.

Third, defendants’ contentions that plaintiffs’ case was not legally sufficient or that the verdict was against the weight of credible evidence or inconsistent is bereft of merit.

A trial court’s discretionary power to set aside a jury verdict should be undertaken with considerable caution and only where the jury could not have reached the verdict on any fair interpretation of the evidence. As repeatedly held, a court must first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.
Here, there is ample evidence that, if believed, provided a valid line of reasoning that on various occasions, the acts or omissions of defendants’ staff were departures from good and accepted standards of medical practice, and that these acts or omissions were substantial factors in causing the present condition of the infant plaintiff. The jury was free to credit the testimony of one neonatal medicine expert and discredit the other. A jury is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. Indeed, a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion.

Fourth, defendants’ argument that the verdict is inconsistent because the jury decided that defendants’ staff failed to properly monitor blood gas and acid/base balance, but decided defendants’ staff did not fail to properly monitor the oxygen level, is also without merit.
Monitoring the oxygen level through the pulse oximeter was insufficient to determine the total health of the infant plaintiff. There is no inconsistency in the jury’s finding that blood oxygen was not improperly monitored but other characteristics of the infant plaintiff’s blood were ignored.

And fifth, with respect to the award, defendants correctly note that some of the jury’s award is speculative or excessive.

On the value of loss of future earnings of the infant plaintiff, the award was not based on any competent evidence or testimony and is speculative; the award for future pain and suffering and loss of services deviated materially from what would be reasonable compensation; and the cost of supplies and equipment should be reduced accordingly.

In conclusion, the motion is granted solely to the extent that a new trial is ordered on the amount of damages awarded for future pain and suffering unless plaintiffs serve and file a written stipulation to reduce the jury award of damages for future pain and suffering, damages for future lost earnings, damages for medical care, equipment and supplies, and damages for loss of services. The verdict rendered for pain and suffering to date and home/facility care remain undisturbed. Plaintiffs’ cross motion for an order directing judgment on the verdict is denied.
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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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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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