Articles Posted in Long Island

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

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

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

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

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

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

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

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

The court has reviewed similar cases and jury awards and determined that a fair settlement would be $1,000,000 for past pain and suffering and $2,000,000 for future pain and suffering. If the plaintiff does not agree to this the defendant will be granted a new trial to resolve the issue.
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Medical malpractice lawsuits can be sought for many different reasons. Some of them involve birth injury, and some, like the present case involve the care of the elderly. Elderly care homes in New York are governed by many laws, the application of these laws can differ depending on the court system. When a party to a case feels that the rights of one of the parties has been violated, or the laws in the case have been misapplied, it becomes the job of the Supreme Court to evaluate the outcome and decide if the case needs to be reviewed.

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

This woman was a young woman who was in a persistent vegetative state. The case is referred to as Doe. The reason that her mother filed a lawsuit alleging violations of the public health laws was that her daughter had been injured in an automobile accident. She was in a persistent vegetative state when it became apparent that she was pregnant. Since she had been a resident of a long term home for more than a year at that point, it was obvious that she had been raped while in their care. She delivered a baby boy by caesarian section. DNA evidence was used to determine which employee of the facility had raped her. Her mother’s contention was that her daughter did not receive the minimum standard of care for a patient in her condition as evidenced by the fact that one of the staff had raped and impregnated her. She proved her point and won her lawsuit. The case is now used as a precedent for nursing home violations. The public health law was instituted to prevent the types of abuses that were evidenced in the current case and the case of Doe. In order to insure that our loved ones who by necessity are bedridden and in a long term home facility, laws that govern insufficient care are important. Nursing homes must be accountable for any abuse or neglect that may occur on their property. However, because the laws are so complicated as they relate to nursing home abuse, it is important for anyone who believes that their loved one has been treated inappropriately to contact an attorney in Brooklyn or Long Island.
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The infant plaintiff Mammud Rashid Beretey (hereinafter the plaintiff) was born at the defendant New York City Health & Hospitals Corporation (hereinafter the Hospital) on November 2, 1996. Prior to his birth, the plaintiff’s mother had been given Pitocin to induce labor, but the labor did not progress and Hospital personnel ultimately performed a caesarean section. The Hospital’s records indicate that, at birth, the plaintiff suffered from perinatal asphyxia and respiratory depression. His birth record indicates that he weighed 9 pounds, 3 ounces and his Apgar score was 1 at 1 minute after birth, 5 at 5 minutes after birth, and 7 at 10 minutes after birth. The Hospital’s records do not indicate any signs of brain damage. For several days, the Long Island plaintiff received treatment for his condition in the Hospital’s infant intensive care unit. Seven days after birth, the plaintiff was discharged from the Hospital.

A Medical Malpractice Lawyer said that, the mother alleges that she learned through a school evaluation conducted in or about 2000, that the plaintiff would have to be placed in a special school for both physical and mental issues, and that he had severe cognitive developmental delays and some motor condition difficulties. In January 2006 the plaintiff, by his mother, served a notice of claim seeking damages for medical malpractice for the birth injury suffered by the plaintiff, alleging that the perinatal asphyxia he suffered at birth resulted from the negligence of the Hospital and its personnel in delaying to perform a cesarean section on his mother. The notice of claim asserted that the perinatal asphyxia caused him to develop cognitive delays, mental retardation, severe hyperactivity, and coordination difficulties.

In February 2006 the plaintiff, by his mother, commenced an action to recover damages for medical malpractice against the Hospital. In October 2006 he moved, in effect, for leave to deem the notice of claim timely served nunc pro tunc or, in the alternative, for leave to serve a late notice of claim. The Supreme Court denied the motion. Thus, the infant plaintiff Mammud Rashid Beretey, by his mother and natural guardian Mariama Sheriff, appeals from an order of the Supreme Court.

The issue in this case is whether the Manhattan Court erred in denying plaintiff’s late notice of claim.
The Court held that, in determining whether to grant leave to serve a late notice of claim, the court must consider several factors including whether (1) an infant is involved, (2) there is a reasonable excuse for the delay, (3) the public corporation acquired actual knowledge of the facts underlying the claim within 90 days or a reasonable time thereafter, and (4) the late service would result in substantial prejudice to the public corporation defending on the merits. Actual knowledge of the essential facts is an important factor in determining whether to grant an extension and “should be accorded great weight”.

In this case, the Court said that, on the issue of actual knowledge to be gleaned from the Hospital’s records, the plaintiff proffers expert affidavits which fail to objectively link the alleged medical malpractice at the time of his birth with the specific cognitive developmental delays and motor coordination difficulties diagnosed years later. As noted by the Supreme Court, there is no indication in the Hospital’s records that the plaintiff, either at the time of his discharge or upon follow-up visits, showed any signs of brain injuryor other impairment. Accordingly, the entries in the Hospital’s records at the time of the plaintiff’s birth injury do not equate with knowledge of facts underlying his claim.

The plaintiff also failed to offer an adequate excuse for the more than nine-year delay between his birth on November 2, 1996 and the service of the notice of claim in January 2006. The mother first learned in 2000 that the plaintiff had cognitive developmental delays and motor coordination difficulties, yet the first time she consulted with attorneys to investigate a potential claim was in 2005, five years later. This delay in consulting with counsel cannot be attributed to the plaintiff’s infancy and is not reasonable.

Further, the Court said that plaintiff failed to establish that the Hospital would not be substantially prejudiced in maintaining its defense on the merits as a result of the lengthy and unexcused delay in seeking leave to serve a late notice of claim. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion. Hence, the Court affirmed the decision of the Supreme Court.
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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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The complainant woman gave birth to her childat the accused hospital. The hospital’s obstetric gynecologist delivered the child vaginally. The child, who had high birth weight at the time of birth, suffered birth injuries which include Erb’s palsy/brachial plexus injury during delivery. The accused female physician who is an employee of the hospital’s medical practitioner had provided most of the woman’s prenatal treatment up to her last visit. The medical practitioner was the last physician to treat the woman prenatally when he treated her prior to delivering the child the next day.

The Long Island woman and her child commenced the action alleging that the female physician deviated from accepted medical practice when, after estimating the child’s fetal weight on to be 3700 grams, she failed to recommend delivering the child by cesarean section rather than vaginally. The female physician alleged that the woman’s gestational diabetes increased the likelihood that, at birth, the child would be of a large size, thus warranting a cesarean section, and that the injuries suffered by the child could have been prevented had she been delivered by cesarean section. The female physician moved for summary judgment to dismiss the complaint as asserted against her. In an order, the Supreme Court denied the motion, concluding that the triable issues of fact existed however, the female physician appeals.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage. An accused physician moving for summary judgment in a medical malpractice action has the initial burden of establishing legitimate complaint, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries.

The female physician met her initial burden of demonstrating that she did not deviate from accepted medical practice in declining to recommend that the woman deliver the child by cesarean section, through her expert’s affidavit, in which the expert opined that, as of the last date of treatment of the woman, the female physician correctly estimated the fetal weight of the child at 3700 grams, which was below the threshold of macrosomia and, thus, given that the woman’s gestational diabetes was under control and her pregnancy otherwise normal, delivery by cesarean section was not indicated. Further, the female physician demonstrated that her alleged medical malpractice was not a proximate cause of the complainants’ injuries, through evidence showing that the woman’s condition had dramatically changed during the several days after her last visit with the female physician. Specifically, during that time period, she gained 4.5 pounds and, by the time of her subsequent visit with the obstetric gynecologist, he decided to deliver the child vaginally despite observing shoulder dystocia in utero during labor.

In opposition to the female physician’s legitimate showing, the woman and her child failed to raise an issue capable of trial of fact. Since the expert affidavits they submitted were conclusive, speculative, and without basis in the record, they were insufficient to defeat summary judgment. The Supreme Court should have granted the female physician’s motion for summary judgment to dismiss the complaint as against her.

In an action to recover damages for the medical malpractice, the female physician appeals from an order of the Supreme Court. The Supreme Court ordered that the appeal from so much of the order as denied the application to direct the woman’s expert witness to submit to a hearing and, is dismissed on the ground that such portion of the order is not appealable as of right. The Supreme Court ordered that the order is reversed insofar as reviewed, on the law, and the motion of the accused Manhattan female physician for summary judgment to dismissing the complaint as asserted against her is granted; and it is further ordered that one bill of costs is awarded to the appellant, payable by the complainants.
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Plaintiff is 25 years old, married, with two young daughters. She was employed as a secretary at a Hospital. On 29 March 2006, she was approximately three months pregnant, with twins, and was on her way to the Hospital, not to work, but to see a doctor (“the doctor”) whom she had seen three times before. On her way, plaintiff was a passenger in a vehicle owned and operated by defendant-one when it collided with a vehicle owned by defendant-two and operated by defendant-three. After the collision, she was taken to the Hospital where she works by an ambulance.

Allegedly, plaintiff experienced some contractions at the scene of the accident and was contracting at the hospital. She was released that day, after the contractions ceased. According to a report by the doctor, incorporated with several others and adopted as accurate and true, on the day of the auto accident, plaintiff was determined to be unable to work and not expected to be able to perform usual work until 18 of May. In another report, the doctor asserted that plaintiff was totally disabled or unable to work from 29 of March to 17 May 2006. On 7 of June, she was again determined to be unable to work because of preterm labor twin gestation. Under restrictions, the doctor wrote “Bedrest Complete disability”. It was estimated that she would deliver on 14 of October.

On 9 or 10 of July, however, plaintiff returned to the Hospital. She was admitted and remained there until after the delivery of her twin daughters by emergency caesarian section on 31 of July. The doctor’ reports the diagnosis as “Preterm labor, Twin gestation.” The twins remained in the hospital in Manhattan until 10 and 14 of September, respectively.

Subsequently, plaintiff filed a complaint and alleges, among other injuries, premature labor. With her motion, she seeks a determination, that she sustained a serious injury within the meaning of Insurance Law as a result of the accident. Plaintiff contends that she sustained a medically determined injury or impairment of a non-permanent nature which prevented her from performing all of the material acts which constituted her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment; that she was confined to bed for a period of approximately 15 weeks and was incapacitated from employment for 4 months.

Defendants oppose plaintiff’s motion, and each move for dismissal of the complaint on the ground that plaintiff did not sustain a serious injury as a result of the accident.

The doctor states in his affirmation, presented before the court, that due to the injuries sustained in the car accident, plaintiff experienced pregnancy complications, thus, bed rest was prescribed for the rest of her pregnancy for approximately six months.

The Ruling:
Although not common, plaintiffs have been granted summary judgment determination of the serious injury issue. At least one court has granted a plaintiff’s threshold motion under the 90/180 days disability category. If the plaintiff submits admissible evidence demonstrating that she suffered a serious injury, the burden shifts to the defendant to submit competent medical evidence demonstrating the existence of a triable issue of fact.

Here, The Long Island plaintiff submitted competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident. She also submitted sufficient objective medical evidence relating her inability to work due to the injuries allegedly sustained in the subject accident. Whether characterized as pregnancy complications or preterm labor, the doctor provides sufficient objective evidence to support the determination of disability and to connect that disability to the accident. Contrary to defendants’ contention, it was not necessary, in the first instance, that the doctor describe the precise physiological mechanism of causation or the medical relationship between the diagnosed condition and her determination of disability
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If there is a question about the sufficiency of plaintiff’s prima facie showing, it would be whether she sustained a medically determined injury or impairment for purposes of the 90/180 days disability category of serious injury. Do pregnancy complications in the nature of preterm labor constitute an injury or impairment if they are not determined to hinder the plaintiff’s ability to physically perform the tasks of her work, in this case as a secretary, but present a risk of harm to the plaintiff, or her fetus, or both, if the plaintiff continues to work?

In 1984, the No-Fault Law was amended to add loss of a fetus to the list of serious injury categories. Even after the amendment, however, because of limitations on a mother’s claim for emotional distress as a result of a stillbirth, a defendant could contend that, although the loss of a fetus would constitute a serious injury, the plaintiff was still required to prove a compensable injury, i.e., an independent physical injury, in order to recover. Although the contention was properly rejected, the limitations on the mother’s recovery were not definitively removed until the Court of Appeals held in the case of Broadnax that even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.

In the instant case, plaintiff is not, at least on this motion, claiming a medically documented emotional trauma as constituting the medically determined injury or impairment that would support a finding of 90/180 days disability. She testified at her deposition that she did not see a psychiatrist, psychologist, or therapist after the accident. Plaintiff does allege that she suffered depression, anxiety, fear, and emotional upset and shock, but neither in her Affidavit nor deposition testimony is a connection made to the pregnancy complications. Most importantly for this motion, the doctor makes no specific reference to emotional harm and a connection to plaintiff’s preterm labor. The question then is whether preterm labor constitutes an injury for purposes of the 90/180 days disability category of serious injury.

The statute does not define injury and the Court has not found in the voluminous case laws on serious injury any attempt to define injury judicially. The 1984 amendment to the statute, adding loss of a fetus as a category of serious injury, could be argued as suggesting a legislative intent that nothing less will suffice. Or it could be seen as suggesting a legislative purpose to protect pregnancy. The intent of the Legislature relating to Insurance Law was to include pregnancies of any duration within the meaning of the phrase loss of fetus. The herein Court adopts the latter suggestion.

In the report submitted, the doctor included threatened abortion among her objective findings. Since loss of a fetus is a serious injury, the threatened loss of a fetus is an injury as well. When medically determined and related to a motor vehicle collision, and requiring complete bed rest for the statutorily-prescribed period to ensure the continuation of the pregnancy, such a threat to the continuation of the pregnancy qualifies as a serious injury under the 90/180 days disability category.

The Court concludes that plaintiff has sufficiently established prima facie that she sustained a serious personal injury as a result of the collision.

In opposition, defendants submit the affirmations of their respective counsel; defendants add a report of an ob/gyn who examined plaintiff on 29 January 2009; a report of another ob/gyn who examined plaintiff on 7 May 2008; and a document apparently printed from the website of the National Organization of Rare Disorders. Counsel’s affirmations and the attached document address a condition called “hyperemesis gravidarum,” which is noted in one of the doctor’s reports. Another of her reports notes only “hyperemesis.”

Here, counsel purport to describe the condition and its relevance to this motion, but neither attorney is shown to be competent to offer medical evidence and the attached document is clearly inadmissible hearsay. Most importantly, neither the reports of the two ob/gyn doctors make any mention of the condition. Moreover, the report of the first ob/gyn is unsworn and has not been affirmed, and, therefore, without any probative value. No excuse, acceptable or otherwise, is proffered for the failure to provide evidence in admissible form, thus, such report cannot raise a triable issue of fact. On the other hand, the report of the other or second ob/gyn doctor is affirmed in accordance with the rules. The report contains six substantive paragraphs. In four paragraphs, the second ob/gyn doctor describes his review of the records of the Hospital and the doctor, and his findings on examination of plaintiff. “The general physical examination was normal. Pelvic examination revealed a normal vagina, clear normal cervix and normal pelvic viscera. It is in his opinion that the premature labor and the emergency caesarian section bears no relation to the accident; that there was no anatomic injury or elapsed between the motor vehicular accident and the onset of premature labor; that premature labor and delivery is due to the increased distention of the uterus cavity which accompanies multi-fetal pregnancy. The second ob/gyn also cites a professional journal article which states that, generally, twins deliver early. The journal article is not provided, and it would, in any event, be inadmissible hearsay. Assuming that the article served as a basis for the opinion as to lack of causation in this case, rather than merely an interesting statement of general fact, there is no showing that the second ob/gyn could rely on the article in forming his opinion. There are additional difficulties with the second ob/gyn’s report. It is not at all clear that the second ob/gyn is even addressing the preterm labor experienced by plaintiff at three-month gestation, soon after the accident and during the following months, rather than the premature delivery on 31 of July. It is, therefore, only arguably relevant to the condition that has been found to be a medically determined injury for purposes of the serious injury threshold. The Verified Bill of Particulars alleges premature labor and not premature birth.
Plaintiff cannot, of course, recover if her pregnancy and not any accident-producing injury was the medical reason for any limitation on her activities after the accident. But the second ob/gyn’s report does not raise a triable issue of fact that the doctor’s direction to plaintiff that she does not work and rest in bed, and the condition that prompted the direction, were not sufficiently causally related to the subject accident. The second ob/gyn doctor failed to offer any facts or opinion showing any other possible origin or cause for plaintiff’s limitations other than the accident; his opinion as to lack of causation is purely speculative.

In conclusion, plaintiff has established prima facie that she sustained a serious injury under the 90/180 days disability category and defendants have failed to raise a triable issue; plaintiff’s motion is granted and need not, at trial, establish serious injury as defined in Insurance Law as a condition to damages for the non-economic loss; defendants’ respective motions are denied as moot.
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Issues that occur when a woman is pregnant are now known to cause many problems with the fetus that she is carrying. A pregnant woman has more rights now to investigate this type of medical issue than she did in the 1960’s. In the 1960’s, medical records were not as easy for a person to obtain, even if they were their own records. Laws in recent years, have made obtaining your own medical records much easier. However, when there is a possible case of medical malpractice involved, it can still be difficult for a person to obtain the medical records that they need to prove their case.

In 1964, on July 22, a woman who was early in her pregnancy was hospitalized following a serious automobile accident. She was taken to the Lutheran Medical Center in New York for treatment. She remained in the hospital for two months while she was treated for her injuries. When she was discharged two months later and sent home, she had no reason to believe that there was anything wrong with the baby that she carried. However, on October 22, 1964, she was brought to Kings County Hospital where she was admitted in preterm labor. The infant died shortly after birth.

The mother was convinced that the cause of her infant’s death related to the traffic accident in July. However when she requested copies of the medical records from her hospital stay and treatment, the hospital would not provide her with the information that she needed. She discovered that in order to obtain the records, she would have to execute an assignment of lien against the hospital. The woman filed the lien. The Long Island hospital provided the documents, but requested that the court make the woman pay them more than $600.00 for their costs in obtaining the records. The hospital contends that they have the right to the payment because the assignment of the lien that was executed by the mother and her attorney served to form a binding contract between the woman and the hospital. The records that the hospital provided to the mother claim that the injuries that she sustained in the car accident and the treatment that she received in the hospital had no bearing on the loss of her child less than one month after being discharged from their care.

The court contends that a hospital lien is a product of the lien law of New York §189 and is carefully described in circumstances prescribed by the statute. However, the lien law states that there are two elements that must be met before such a lien is even possible. First, there must be a causal relationship between the treatment that the person received and the accident that the person was admitted for. Secondly, the lien must be rendered within a week from the injury. Since neither of these elements are present in the current case, there is no showing that the lien can be enforced by the hospital. The Manhattan court determined that there was no valid reason to issue the hospital lien and the mother’s motion to discharge the lien is granted in all respects with no money due from her to the hospital.

In situations where there are specific legal grounds that must be met prior to any legal claims, it is important for each party involved to seek some sort of legal advice. In this case, the mother had a valid reason to want to determine how her infant died. She needed to know if the automobile accident played a significant part in the baby’s death. If this case were presented in the legal atmosphere of today, it is possible that a causal relationship would have been found.
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Some cases that involve the abuse of children are unbelievable to those of us who have children. In one case, which occurred on July 31, 1997, a woman was asleep on the sofa in the living room of her apartment with her small son. Her live-in boyfriend, who was the father of the little boy went into the bedroom of the eight year old daughter of his girlfriend. The little girl shared her room with her four- year- old sister. The four-year-old was sleeping in the room in the only bed in the room.

The man went into the room of the two small girls and brutally raped the eight-year-old child while her little sister slept beside them. The eight-year-old rape victim left the bedroom and went to her mother in the living room. She was holding herself tightly and she was bleeding profusely from her vaginal region. Her mother took her into the bathroom and supervised her daughter taking a shower. The eight-year-old child was then wrapped in a towel by her mother who placed her on the bed in her room. Because the eight-year-old child was bleeding so severely, her mother put a sanitary pad on her.

Rather than taking her baby girl directly to the emergency room for treatment, the mother sat down with her boyfriend, the child’s rapist, and discussed the situation with him. He obviously did not want her to take the child to the emergency room because he did not want to be arrested for raping her. The child, who was suffering from severe pain, bled through several towels and the sanitary pad. She began to vomit. It was obvious to the couple at that point that they would have no choice but to take the eight-year-old rape victim to the hospital. Before leaving to take her to the hospital, the mother and her boyfriend devised a cover story to attempt to explain the injury to the girl. They decided to tell the emergency room staff that the child had been trying to get out of bed when she tripped over a chair and one of the legs penetrated her.

One of the many reasons that the couple concocted this ridiculous story to try to cover the rape was that the mother was aware that the boyfriend had already been named accused of sodomizing the little girl in the past. Children’s services had investigated that incident. However, according to New York law, it is required that the department takes every opportunity that they can to reunite a family. This includes parenting classes, and counseling. The ultimate goal is to ensure that birth parents are kept together with their children. However, the sodomy charge was not the only sexual assault that this man had done. The eight-year-old victim was not the only victim. The mother’s own mother had notified the authorities that the boyfriend had sexually assaulted the eight-year-old victim’s younger sister. The same little girl who was in the bed with her eight-year-old big sister when she was raped by her mother’s boyfriend. The grandmother’s complaint had initiated an arrest of the boyfriend and an investigation by the police. With a pattern of pedophilia rapes in his history, the mother and her boyfriend decided that the mother would lie to the emergency room staff and tell them that he was not in the apartment at the time that the eight-year-old victim was raped.

Still, the couple did not take the desperately injured child to the hospital. Rather, they cleaned up the blood and hid the mattress where the boyfriend slept. Next, the mother put the girl in a taxi cap and had the driver take them to a particular clinic 115 blocks away from the apartment. This particular clinic was on the other side of city from where the couple lived. When they arrived, the clinic, the clinic staff called an ambulance immediately to transfer the child to Bellevue Hospital in Manhattan where she was listed as likely to die. After several hours of surgery, her shredded vaginal walls were repaired and she remained in the hospital for an additional nine days. The couple was arrested at the hospital. The police officers told the mother that her boyfriend had confessed to raping her eight-year-old child. The mother purportedly kissed the boyfriend and told him that she would see him later at his mother’s house.

Child Services took the three children, into protective custody. They were ultimately placed into foster care. The boyfriend pled guilty to rape in the first degree and was sentenced by the court to serve 15 years in prison for raping the eight-year-old little girl. The mother was arrested for making false statements about how the little girl became injured. The mother was charged with reckless endangerment in the first degree because she did not immediately seek medical care for the little girl. The delay in treatment could likely have been fatal to the child. The mother was sentenced to one to three years in prison.

Because New York statutory law seeks to ensure that the parents of a child are reunited with that child if it is at all possible. In situations such as this, common sense leads the rational person to believe that reuniting this family would not be in the best interest of the child. It would also not be in the best interests of the other two children. In order to address the termination of parental rights, the court must have a hearing to evaluate the merits of the case with the ultimate goal of protecting the children from any additional abuse. Child abuse proceedings were started against the two parents of the children. Ultimately, the children were only removed to protective services for a period of one year. The state initiated permanent parental rights termination proceedings . The state makes the contention that this conduct had been endured by the children for many years and that the parents were not going to stop abusing these children in the future.

The court recognizes that while it is important in most cases to return a child to its birth parents in order to preserve the family unit, in cases like this one, it is not responsible to return a child to its parent. Clearly, these parents will continue to harm these children. In 1999, New York adopted the Adoption and Safe Families Act, this statute mirrored the federal statute by the same name. This act allows that in cases of severe abuse, there is not as much red tape to terminate parental rights. Another option that was available to the prosecutors in this case was the option to show that the case involved aggravated circumstances.

The court ruled that the eight-year-old rape victim was severely abused, but found it more difficult to determine that the other two children in the home were as severely abused. The court in Long Island determined that the younger female child was obviously at risk and that her brother was at a lessor risk. The goal to keep the siblings together was going to be hampered by different findings of the severity of the abuse. Therefore, the parental rights were terminated in the case of all three children.
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A mother on behalf of her baby girl and the baby’s twin, who was dead at birth, filed a complaint against the hospital and three other individuals. The opponent, however, sought an order dismissing the first, second, fifth and sixth reason’s for action asserted in the complaint on the grounds that they failed to state reasons for the action which relief could be granted. The opponent contended that the four (4) reasons for the action were dismissible because no reason for action exists either on behalf of the baby’s twin for injuries and death occurring in the uterus or on behalf of the mother for mental or emotional distress or from loss of society. At the same time, the mother made a motion seeking leave to revise the complaint as to the second and sixth reasons for the action and to add a new one identified as a seventh reason for the action.

The revision proposed for the second reason for the action sought to clarify the allegation that the lack of informed consent to the mother caused serious damages and injuries to her infantand spoke in terms of a reasonably prudent person rather than the mother. The revision proposed for the sixth reason of the action eliminated the mother’s claim for the loss of society, companionship and consortium of the deceased infant and plainly stated that the mother’s claim for the mental distress includes emotional upset in attending the dead infant. The seventh reason for the action proposed that the opponents failed to inform the mother of her condition and the deceased infant’s condition as well as the dangers of the treatment performed and the alternate treatment available. Further, that the lack of informed consent was a proximate reason of the injury for which recovery is sought. The reason for the action would further assert that the mother would not have undergone the treatment if she had been fully informed. The seventh cause of action would then allege that due to the death of the infant, the mother had been rendered sick and continued to suffer great physical pain and mental distress requiring medical care. As the mother opposes the opponent’s motion, she pointed to the tremendous evolution in the concept of tortious conduct within the state law as warranting denial of the dismissal motion. Subsequently, the court in Manhattan ordered that the mother’s motion to revise the complaint is accordingly denied.

The mother moves for an order granting re-argument and renewal of the order. She claims that her request for permission to revise the complaint and include a reason for the action based on lack of informed consent and to re-plead the sixth reason and include the emotional pain and distress in attending the dead infant should be granted.

The complainant mother, in support of the motion, contends that in the previous case decisions there was no settlement between the act of medical malpractice, the death of the fetus and the knowledge of the death which caused the emotional harm since the procedure in assessing the infant’s abnormalities took place several weeks before awareness that the infant had died due to the procedure. In the instant case, the mother contends that the negligence that caused the death of the infant and the knowledge of the death resulted immediately in extreme emotional harm. Even if the mother’s contentions are not entirely clear, it appears that they present two propositions which includes that the mother while in labor witnessed the negligent acts and was in the zone of danger. She was harmed by the injury to her child and the mother suffered actual physical damages. Therefore, the mother argues that the reason for the action of emotional upset while attending a dead infant must be permitted since there is independent physical injury.

The opponent’s opposes the motion contending that the emotional pain and suffering of the mother is too remote to be compensable under the policy considerations expressed by the state courts. As to modifying the complaint, the opponents contend on claiming that there has been no identification of the procedure which was performed without the mother’s consent and there is no affidavit from the mother herself attesting to any lack of informed consent.
The emergent issue which warrants re-examination if a mother can recover for emotional injuries resulting from the death of her fetus. Directing aside prior holdings excluding recovery in such actions, the court held that common-sense justice mandated that such child is capable of being delivered and remaining alive separate from its mother was entitled to relief. The court then sent a clear signal regarding derivative actions by stating that no one seems to claim that the mother, in her own name and for herself, could get damages for the injuries to her infant. Thereafter, while reaffirming that there could be no recovery for mental distress and emotional disturbance resulting from defectively born children, the court permitted certain restricted parental recovery for injuries resulting from defectively born children.

Based on the record, in upholding the parents’ rights to recovery on their own behalf, the court explained that the fact that the complainant’s wrongful life claims was brought on behalf of their infants do not state legally cognizable reasons for action. In as much as they fail to assert ascertainable damages, there is no way that it affects the validity of the complainants’ claims for financial loss. The complainant in Long Island states the reasons for the action on breach of duty flowing from the opponents to themselves, resulting damage to the complainant’s for which compensation may be readily fixed. Further, it is not to say that the complainant may recover for psychic or emotional harm alleged to have occurred as a consequence of the birth injury of their infants. The recovery of damages for such injuries must necessarily be limited.
An additional factor influencing against the application of the zone of danger rule lies in the element of the rule which requires that the injury observed be to an immediate family member. To hold that the zone of danger rule applies would be to determine that a fetus is a member of the immediate family. As far as tort law is concerned, a fetus has no life until birth. It follows that someone who was never alive could not be considered a member of the family and could not be within the zone of danger.

The mother’s allegations must be assumed to be true. In addition, a request to revise the pleadings must be approached with liberality especially since there is no prejudice to the opponents. However, despite of the principles and the mother’s contentions upon the motion, the court do not read the complaint as setting forth a separate reason for the action by the mother for independent physical injuries.

Consequently, the court decided that re-argument should be granted and that upon re-argument, the motion is denied. However, the mother individually is granted to serve a revised complaint which deletes the reason for action relating to the dead fetus and clearly states that it is her claim. The reason for the action of emotional upset in attending a dead fetus including the lack of informed consent provided that there is an independent physical injury to her.
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A complainant mother underwent an abortion in a hospital. During the procedure, her uterus was punctured and she initiated an action for medical malpractice while her husband sued for loss of consortium.

After two years, the mother conceived a fetus and apparently completed a normal term pregnancy. Approximately three years after giving birth and seven years & six months after commission of her alleged tort, the medical malpractice suit was settled for $175,000. The settlement occurred during the course of the trial.

It is now contended that as a result of the perforation of the mother’s uterus, a son was born with brain damage. Accordingly, the action was instituted almost seven years after the commission of the alleged act of medical malpractice and more than two years after the birth of her son.

The complaint claimed five reasons of action. The first two causes are on behalf of the son and the malpractice committed to the mother, the negligence of the hospital in treating her which brought an injury to the son. The third reason, also on behalf of the son, is bottomed upon the failure of the hospital to inform the mother of the risks and hazards of the treatment. The final two reasons are for loss of the child’s services, society and companionship and for expenses acquired and to be acquired including medical attention. One reason is alleged on behalf of each parent.

The hospital however moved for decision without proceeding. A special term granted the motion, holding that no such action is cognizable under the law. Same in Long Island and Manhattan.

Based on the record, no such case decided in the State deals precisely with the same issue of the complainant. The court therefore, turns to cases which inform by laying down guidelines. At the beginning, the court note that if the complaint sets forth a viable reason of action then the court need not concern whether there was a timely filing of a notice of claim. Despite the explosive expansion of tort law in the recent past, the court thinks it is fair to say that none of the cases disinterest the law to act, therefore as recognized by law, the court created a new reason of action. The court states that even if no such claim has ever been before accepted, it does not make the claim an unscalable barrier. In the circumstances, the court is constrained to conclude, unless otherwise instructed by a superior judicial authority or by the government, that no reason of action lies on behalf of the son of the complainant.

As to the fourth and fifth reasons set forth on behalf of the parents, the complainants were necessarily a part of the malpractice action which was already settled. Although clothed in a new theory and seeking improved damages, all of the matters alleged in the two reasons of action flowed from the wrong actions committed against the mother. The complainant parent were included in the settlement reached and may not be the subject of a separate action.

For such reason, the order of the Supreme Court granting the request of decision without proceeding for the hospital as the opponent is affirmed without costs.

The court wanted to examine the question in view of the trend in the decisions and commentaries, as well as the injustice evident in the denial of the opportunity to such children to prove their cases.

The hospital’s arguments on the law of limitation do not exclude the infant as one of the complainant. The order granting for the decision without proceeding on the ground that the complaint fails to state a reason of action should be reversed.
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