Articles Posted in Manhattan

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

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

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

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This case is being heard in the Family Court of Queens County. This particular case involves alleged child abuse.

Case Background

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

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The prohibition of marijuana is a hot topic of discussion these days. Since, many tests have demonstrated that marijuana is less toxic to a body than either alcohol or tobacco, many people are interested in eliminating the prohibition that makes it illegal. In recent years, many states have taken action to decriminalize the personal use of marijuana. The use of this substance has been proven to have many beneficial medicinal effects. Preventing citizens from having access to a natural medicine that has very few side effects seems ridiculous. However, much like alcohol was at one time prohibited, marijuana is not prohibited. Anyone who uses marijuana, even if they only use it once, is found guilty of a criminal offense. In some states, there is so much marijuana seized by local law enforcement agencies that it is no longer sent to the state crime lab to be tested and verified. The local agencies test it themselves with a simple test before they dispose of it. So with so much political upheaval associated with the personal use of marijuana, how does the use of this substance affect the parents who engage in ingesting it? For some people, they claim that they use it to self medicate for numerous psychological and physical maladies that artificial drug company produced legal drugs cannot compete with for effectiveness. There are several ways that a person may use marijuana to relieve physical pain or anxiety. One way that has been popular in home remedies since the early 1700’s before marijuana became an illegal substance, was to steep the leaves in vinegar to be applied topically for arthritis or muscle pain. Other people eat the leaves as a way to gently reduce anxiety or increase appetite. However, even these non-recreational uses of the herb is prohibited by law in most states.

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

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

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On September 21, 1982, the complainant 32-year-old woman visited her accused gynecologist for her annual check-up. At that time, the gynecologist made note of a one-centimeter mass on the outside lower quadrant of the woman’s left breast which he tentatively classified as a galactocele or a milk-filled cyst, but no further tests were performed. Ten months later, the woman returned to her Manhattan gynecologist complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in the woman’s breast was diagnosed as cancer which had metastasized or spread, to three ribs and two vertebrae. The woman died nearly two years later, as a result of the extensive metastasis of the cancer leaving as the sole beneficiary of her estate her then four-year-old daughter.

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

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

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The Facts:

On 14 August 1989, the infant plaintiff was born at a Hospital and has suffered from a birth injury, that is, a brain injury called cerebral palsy. On 11 February 2004, plaintiffs filed a Notice of Claim and commenced the instant action on 18 March 2004. The plaintiffs allege that defendant departed from good and accepted medical practice between April 1989 through 14 August1989, viz: in its monitoring and treatment of infant plaintiff’s mother’s obstetric care, including running tests and taking a proper history; in failing to implement proper obstetric protocols and procedures; and in failing to implement proper protocols and procedures to ensure adequate obstetric training of its medical personnel.

The defendant, New York City Health and Hospitals Corporation, moved for an order dismissing plaintiffs’ complaint as untimely pursuant to NY Unconsolidated Law and the General Municipal Law. Defendant argues that plaintiffs’ claims are time-barred due to plaintiffs’ failure to file a Notice of Claim within 90 days and commence an action within one year and 90 days; that the action is one for medical malpractice based upon defendant’s alleged negligence in monitoring and treating plaintiff, but plaintiffs are trying to circumvent the statute of limitations by categorizing the current action as ordinary negligence.

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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.

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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.

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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.

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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.

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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.

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