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.

In General Municipal Law § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit against a public corporation. Section 50-e (1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions.

Section 50-e(5), the late-notice statute, directs the court to consider, in particular, whether within 90 days or a reasonable time thereafter the public corporation (or its attorney or insurance carrier) acquired actual knowledge of the facts underlying the claim. In deciding whether to grant an extension, the court must also consider a host of factors, including infancy and whether allowing late filing would result in substantial prejudice to the public corporation.

The hospital’s records revealed that the delivery was difficult, but that when it was over, there was scant reason to identify or predict any lasting harm to the plaintiff, let alone a developmental disorder or epilepsy. The Manhattan plaintiff’s Apgar scores were satisfactory and even two years, later plaintiff’s EEG was normal.

The Court held that, under these circumstances, defendants could well have concluded that when plaintiff left the hospital there was nothing wrong with him beyond a broken clavicle. Merely having or creating hospital records, without more, does not establish actual knowledge of a potential 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. Since there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.

With respect to Plaintiff’s other contention, A delay of service caused by infancy would make a more compelling argument to justify an extension. Conversely, the lack of a causative nexus may make the delay less excusable, but not fatally deficient. It all goes into the mix. The Court pointed out that, among other reasons for denying an extension such as lack of actual knowledge, the delay in the service of notice of claim was not the product of plaintiff’s infancy.

The law contains a non-exhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances, to sustain or deny grants of permission for late filing. This approach provides flexibility for the courts and requires them to exercise discretion.

In view of the foregoing, Plaintiff’s claim was denied by the Court.
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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.

The child had been living in foster care for the previous three years and was returned to her parents in April of 2004. The original petition of abuse that resulted in the child being put in foster care was filed in February of 2001 and charged that the then 10 month old child had been burned on her right eye, below her right cheek, and across the back of her neck. The child also had cuts all over her body including inside her ears and on the bottoms of her feet. The respondents failed to provide a reasonable explanation for these injuries.

Fact Finding Hearing
In this instant case the fact finding hearing was held in October of 2004. The physician’s assistant that treated the child and the foster care agency worker both testified during the hearing.

The physician’s Manhattan assistant testified that the mother brought the child in for treatment for a burn on her right arm. She testified that the child had a two centimeter second degree burn around the area of her elbow. The physician’s assistant stated that the mother told her that the child had received the burn when she touched an electrical outlet. The mother also told the physician’s assistant that the child had just recently been returned to her after having been in foster care for child abuse. She went on to testify that the child was quite during the examination and very scared. She states that the child seemed to be malnourished and was very small and appeared to be younger than her stated age. She reported the case to the State Central Register because the explanation for the burn was inconsistent with the injury.

The caseworker for the child testified that the child was discharged to the respondents in May of 2004 and that she learned about the injuries when the father called her in June to report them. The father told her that the mother had grabbed the child’s arm to keep her from grabbing a blow dryer that was plugged in because the child’s hands were wet and she did not want her to get shocked.

Case Discussion and Decision
The inconsistencies of the stories from both parents it is quite clear that this child has been abused. The court finds that the respondents have been unsuccessful with the required parenting classes and finds that they are unlikely to ever be successful. The child along with the other children of the home is to be removed and placed in foster care.
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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.

The Queens mother agreed to drug treatment and upon completion of the mandatory drug treatment program, her children were returned. Several months later, the mother tested positive for marijuana again. She claimed that she had smoked one marijuana cigarette at a party. The state filed an accusation to remove the children again. The court was called upon to determine if this was an appropriate response to an offense that would not even be considered criminal in most states. The court determined that the state had not made a sufficient case to show that the actions of this mother had been detrimental in any way to her children. The case was dismissed.
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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.

Perhaps the more difficult pain for her was the emotional and psychological pain she suffered as a result of the loss of control over her life, the changed attitudes toward her of her family and friends and the strain of her illness on her relationship with her daughter. Her daughter was greatly affected by her illness and had difficulty understanding why her mother could no longer participate in activities with her. While she arranged for her daughter to be raised by her brother and sister-in-law who have three sons, she was saddened that she could bear no other children to provide brothers and sisters for her daughter.

In view of the woman’s extensive losses and suffering, the aggregate award on the first cause of action was well within the bounds of reason. The question remains whether, notwithstanding the reasonableness of the award, the trial court correctly included in its instructions on damages, a separate instruction on loss of enjoyment of life. The trial court’s instructions to the jury were entirely proper.

The complainant commenced an action to recover damages for conscious pain and suffering and wrongful death. The woman’s gynecologist and his professional corporation are charged with various acts of medical malpractice stemming from his failure to properly diagnose the woman’s breast cancer and to provide appropriate medical care and treatment. The jury, after finding the accused 90% liable and the deceased woman 10% contributorily negligent, rendered award of damages, in accordance with the court’s instructions and special interrogatories.
The accused gynecologist immediately moved to set aside the verdict on the grounds that as to liability the verdict was against the weight of the evidence and inconsistent. The gynecologist further charged that the damages awarded for the injuries were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the complainant. The amount of the judgment with interest, costs and disbursements totaled $845,772.59.
The accused gynecologist’s appeal, arguing that the verdict as to liability is against the weight of the credible evidence adduced at the trial, the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and the awards to the woman’s child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.

The trial court’s denial of the accused gynecologist’s motion to set aside the verdict in favor of the complainant as against the weight of the evidence is affirmed. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence. On such a review, the evidence must be viewed in a light most favorable to the complainant to determine whether a sufficient rational basis exists to support the jury’s finding of liability as to the accused.
One of the key issues in controversy at trial was whether the lump that the gynecologist first noticed in the woman’s breast in September 1982 was the same as the cancerous tumor surgically removed from the woman’s breast one year later. Apparently because of the woman’s history of being cystic, the gynecologist was not overly concerned about the lump upon its initial appearance. According to his trial testimony, after making a tentative determination that the lump was a one centimeter galactocele and making a diagram indicating the location of the lump, he advised the woman to return for a follow-up examination in two or three months. He conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the woman to examine her breasts during the intervening period. His office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to the woman.

In the course of the woman’s examination before trial, conducted prior to her death and read into the trial record in pertinent part, she testified that her gynecologist had found her to be in good health at the time of her checkup in September 1982 and told her to return in a year. Discovery of a painful lump and swelling under her left arm prompted the woman to return to her gynecologist. During that examination, she saw a diagram in her file with an X where the lump was. To her surprise, her gynecologist had been aware of the lump, identified it as a cyst and reassured her that he was watching it. No recommendation was issued that a mammography be performed or another physician be consulted. Her doctor simply prescribed vitamins and instructed her to return after her next period. Only later when she consulted the surgery doctor, upon her gynecologist’s recommendation did she learn the gravity of her condition. The surgeon was able to confirm the presence of cancer after only a brief examination because the skin in the area of the lump had a dimpling effect resembling the skin of an orange when it was palpated in a certain manner. Owing to the advanced nature of the cancer, a lumpectomy rather than a mastectomy was later performed. Following surgery, the woman was placed on a regimen of hormonal therapy and later chemotherapy.
The gynecologist’s expert evidence consisting of the testimony of a specialist in obstetrics and gynecology, and a pathologist, was presented to refute the allegations of medical malpractice. The accused parties’ experts were consistent in their opinion that although the lesion which was palpated in September 1982 was in the same location as the tumor removed in September 1983 the former did not lead to the latter. The basis for the opinion was the theory of doubling times which refers to the growth rate of tumors. According to the doubling times concept of oncology, a tumorous mass hypothetically doubles in size every 60 days. If the theory were followed in its strictest sense, the woman’s September 1983 tumor would not have been palpable in September 1982. However, the accused parties’ experts agreed that studies measuring the growth rate in the human breast as opposed to the laboratory have shown doubling times ranging from 20 to 209 days. The gynecologist expert also conceded that the failure to take any measures following the discovery of a lesion in the woman’s breast in September 1982 would have been a departure from accepted medical practice. His opinion that the woman’s gynecologist had acted in accordance with accepted medical standards in the community stemmed from his rejection of the woman’s statements that her gynecologist did not tell her about the lump.

With due deference to the jury’s determination based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, we cannot say that the evidence so preponderant in favor of the gynecologist that the jury could not have reached their conclusion upon any fair interpretation of the evidence. Viewing the entire body of evidence, it was entirely plausible for the jury to conclude that the lesion noted in the woman’s medical record in 1982 developed into the malignant tumor removed in 1983 and to find that the gynecologist was negligent in failing to order tests or to follow up his initial examination to check the condition of the lump. The total verdict reflected a thoughtful evaluation of the evidence and not merely a determination, as the gynecologist suggest, which reflected an overriding sympathy for the woman’s infant daughter. Therefore, the verdict as to liability must stand.
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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.

In opposition, plaintiffs insist that the current action is for ordinary negligence, not for medical malpractice, and therefore, the infancy toll provided the rules allow plaintiffs to proceed with their claims. Plaintiffs moved for leave to file a late Notice of Claim pursuant to General Municipal Law or alternatively deeming the Notice of Claim timely served nunc pro tunc.
The Ruling:

By statute, a Notice of Claim must be served upon the municipal corporation within 90 days after accrual of the cause of action and commenced within one year and 90 days.

Here, the current action accrued in April through 14 August 1989. More than fourteen years later, plaintiffs filed a Notice of Claim and commenced the action. Therefore, both the Notice of Claim and the complaint are time-barred unless a toll is applicable. In addition, the plaintiff mother’s claims are time-barred.

The infancy tolling provisions of the rules apply to the period for filing a Notice of Claim and commencing an action. In an action for ordinary negligence, the statute of limitations is three years and may be tolled for the period of infancy plus three years. However, the statute of limitations in a medical malpractice action is two years and six months and may not be tolled beyond 10 years. On another note, under the General Municipal Law, the Court has discretion to authorize service of a late Notice of Claim, provided that the statute of limitations has not expired. Plainly, if the case is found to be one of ordinary negligence, the court would have discretion to grant a late filing of Notice of Claim; but, if the matter is found to be one arising out of medical malpractice, the court has no discretion because it has been more than 10 years from the accrual date.

In a general sense, a hospital is always furnishing medical care; nonetheless, not every act of negligence toward a patient is considered as a medical malpractice. Medical malpractice is distinguished by the diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition. Failure to take a proper medical history, an act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to rendering medical treatment by a licensed physician constitutes malpractice.

In the instant case, the Court finds that the plaintiffs’ claims regarding the mother’s obstetric care and treatment, the performance of certain tests and the taking of a proper history involve medical judgment and fall under medical malpractice. Thus, those claims are time-barred.
On the other hand, ordinary negligence has been found in claims for breach of duty to use due care in the selection of doctors and nurses, to furnish competent medical personnel, and failure to promulgate proper rules and regulations. Thus, the Court finds plaintiffs’ claims regarding the defendant’s failure to furnish competent medical personnel and to implement proper obstetric protocols and procedures to fall under ordinary negligence and are not time-barred due to the infancy toll.

In assessing whether the Manhattan Court should exercise its discretion to extend the time to serve a Notice of Claim, key factors include whether the plaintiff is an infant or mentally or physically incapacitated; whether there is a reasonable excuse for the failure to file a timely Notice of Claim; whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter; and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. While an infant’s special status is not altered by the action or inaction of his guardian, infancy alone will not suffice as a basis for granting plaintiff leave to file a late Notice of Claim and it is incumbent upon the claimant to demonstrate a nexus between the delay and the infancy. While the defendants may have acquired knowledge of the alleged negligence by virtue of holding the medical records, the 14 year delay would substantially prejudice the defendants in defending against alleged inadequate rules and regulations existing at infant plaintiff’s birth.
Consequently, the Court finds that plaintiffs have not established any nexus between infancy and the 14 year delay, and have not satisfied its burden of showing that the defendant has not been substantially prejudiced by their delay in moving for leave to file a late Notice of Claim; plaintiffs have not established their burden of showing that a late filing of Notice of Claim is warranted.

Henceforth, defendant’s motion to dismiss for failure to timely commence the action is granted and plaintiff’s motion for leave to file a late Notice of Claim is denied.
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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 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
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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