Manhattan

Published on: May 9, 2012

A mother on behalf of her baby girl and the baby’s twin

by Stephen Bilkis

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.

Published on: April 26, 2012

A complainant mother underwent an abortion in a hospital

by Stephen Bilkis

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.

Published on: April 22, 2012

On June 4, 1953, the accused, a fraternal benefit association issued a certificate

by Stephen Bilkis

On June 4, 1953, the accused, a fraternal benefit association issued a certificate of membership in the amount of $4,000 to a postal clerk member of the New York Branch of the Association. While alive, he is entitled to participate in the benefits of the Benefit Fund in case he sustained various bodily injuriesthrough external violent and accidental means. The injuries should not be the result of his own vicious or intemperate conduct because it would wholly and continuously disable him from performing the duties of a Postal Transportation Clerk. If death shall result from such injuries alone within one year from the date of the injury, the Association will pay $4,000 to his step-daughter.

On March 31, 1962, while the contract was in force and effect, the postal clerk died. He was then 80 years of age and a patient at the Veterans Administration Hospital in New York. He had been confined for approximately 22 months prior to his death. Following notification of death and submission of proof by his stepdaughter and a refusal by the association to pay the benefit, the instant action was commenced. The association at trial conceded the existence of the contract and the status of postal clerk as its beneficiary. It denied and contested however the accidental death as defined in the policy.

Thus, the sole issue tried was whether or not the postal clerk’s death was caused by an accident within the meaning of the policy. The stepdaughter’s proof consisted of a death certificate and the testimony of a medical doctor. The death certificate issued by the Office of Vital Records of the Department of Health revealed that after an autopsy was performed, it was found out that the cause of death was Cerebral Arteriosclerosis caused by accidentally swallowing of sock. It was offered in evidence by the complainant to establish the cause of death of the postal clerk. In view of the association’s objection to accept the death certificate in evidence for such purpose, it was accepted by the Court only to establish the fact of death. A decision was reserved on its admissibility to show the cause of death. The medical doctor who testified had 36 years of practice and estimated treating about a thousand cases of cerebral arteriosclerosis during his career. He did not testify to treating the postal clerk during his lifetime or attending him at the time of his death or thereafter. However, the doctor stated that the death caused by suffocation due to the presence of a sock in a man’s pharynx is considered death by external and violent means.

Published on: April 19, 2012

The complainants seek damages for the infant’s right arm paralysis injury

by Stephen Bilkis

The complainants seek damages for the infant’s right arm paralysis injury (Erbs palsy brachial plexus). The accused parties are the hospital, the obstetrical resident who delivered the infant and the attending physician who was present at the delivery.

The complainants allege that the doctors failed to properly manage and perform the delivery of the infant, failed to properly detect and manage shoulder dystocia, failed to perform rotational maneuvers to deliver the infant, failed to properly position the mother for delivery, improperly performed delivery by applying excessive traction to the infant’s head, failed to perform an episiotomy in the presence of a shoulder dystocia, failed to place the mother in the necessary birth position and failed to perform the necessary birth maneuver, and improperly performed maneuvers at delivery which resulted in injury to the brachial plexus nerve. The doctors on the other hand, claim that the birth injury sustained by the infant is inconsistent with the records of the labor and delivery. It was not caused by a medical malpractice and instead, was the result of maternal fetal forces.

In support of their motion for summary judgment, the doctors submit the affirmation of obstetrics and gynecology physician board certified who reviewed the pertinent medical records, pleadings and deposition transcripts. The board certified physician observes that the mother’s pre-natal history was benign and she had no maternal risk factors for shoulder dystocia. She also observes that the mother did not have an abnormal pelvic anatomy, gestational diabetes, was not post-date. The records revealed that the mother had no previous shoulder dystocia delivery and was not extremely short of stature. The board certified physician also pronounces that there was no assisted vaginal delivery or protracted active phase of first stage labor or second stage labor. The delivery note also indicated that the child was delivered with a non-reducible nuchal cord wrapped once around the neck and was clamped and cut upon the head’s delivery. The nuchal cord is significant because in its presence, the mother was directed to stop pushing after delivery of the head in order to have the cord cut prior to the delivery of the child’s body. Based upon the charting, a shoulder dystocia was not encountered. Had there been any complications or the need for maneuvers to be undertaken because shoulder dystocia was encountered, or for any other reason, it would have been documented in the physician’s notes, nursing notes, or pediatric notes. The board certified physician strongly claims that absence of any of such documentation is clear and convincing evidence that maneuvers and/or excessive traction were not used and shoulder dystocia not encountered. The work-up from admission to delivery was well within the standards of care, and there were no departures from the standard of care from the time of delivery through the delivery itself, based upon the records. Following the delivery, the mother had a first-degree vaginal laceration and was repaired with 3.0 chromic sutures, which indicates that it was a superficial laceration without muscle involvement and it was not, as indicated in the complaint that a trapped shoulder had to be delivered.

Published on: April 7, 2012

A woman engaged the professional services of an obstetrician

by Stephen Bilkis

A woman engaged the professional services of an obstetrician to give her prenatal care and to deliver her baby. On October 24, 2002, the woman was admitted to the emergency room because she was already in labor. The labor proceeded normally until the second stage of labor when the woman was instructed by her doctor to push the baby out and the mother had difficulty bearing down. The mother was not pushing hard enough so the doctor tried to suction the baby out. When this also failed, the doctor told the woman that her baby will have to be delivered via cesarean section but the woman refused.

The doctor then obtained the woman’s consent to deliver her baby using forceps. But before the forceps could be locked, the baby popped out. It had a faint heartbeat but it was eventually declared dead after 45 minutes of trying to revive the baby.

The woman then sued the obstetrician and the hospital in behalf of her infant. She filed a suit in damages for medical malpracticefor the personal injury sustained by her infant that died as a result of the negligence and fault of the obstetrician. She also sued for the wrongful death of the child. She also sued for her own personal injury and she sued for her own emotional distress.

Published on: March 27, 2012

More than fifty years ago, the drug, diethylstilbestrol (DES), was invented

by Stephen Bilkis

More than fifty years ago, the drug, diethylstilbestrol (DES), was invented and had been dispensed to women in the United States from 1941 to 1971. In 1947, the Federal Drug Administration approved the drug for treatment of complications relating to pregnancy. In 1971, its use was banned due to the link between its use and the later development of cancer in female offspring (defective product).

In the present case, it is alleged that a woman (mother of Plaintiff One and grandmother of Plaintiff Two) ingested DES “within the years 1959 and 1960”. She gave birth to Plaintiff One on 29 January 1960. Plaintiff-One gave birth to Plaintiff Two on 9 August 1981. It is alleged that Plaintiff One sustained a (birth injury) malformed uterus, cervical and uterine dysfunction and squamous metaplasia as a consequence of her mother’s ingestion of DES. As a result of those injuries, it is alleged that Plaintiff-Two was born prematurely and suffered cerebral palsy (brain injury), gran mal seizures and various related congenital defects (spinal injury). In addition, it is alleged that Plaintiff One suffered four spontaneous abortions before and after the birth of Plaintiff Two.

The exact dates of ingestion of DES by the mother of Plaintiff One, the names of the dispensing pharmacy and pharmacist, the prescription, the instructions for ingestion and the manufacturer of the drug ingested are all ‘unknown’ to Plaintiffs.

Published on: March 19, 2012

Attorneys Pushing for Changes in the Law Concerning Birth Injury Settlement Payouts

by Stephen Bilkis

Leading medical negligence lawyers have warned that funds from some lump sum court awards invested in Irish bank shares are now effectively worthless.

News has cropped up that funds from some lump sum court awards for catastrophic birth injuries have been invested in an Irish bank, and those funds are effectively worthless. An attorney looking into the affair said he has become aware of cases where investments were made by the Wards of Court Office in what were believed to be blue chip equities.

Because of the fraud, the future rate of return for the lifetime of the injured plaintiff is sure to be adversely effected. With the average award for a catastrophic birth injury around €4m to €5m, the effects will definitely be felt.

Published on: March 4, 2012

£5.75m Awarded to Brain Injured Girl

by Stephen Bilkis

An eight-year-old girl who suffers from quadriplegic cerebral palsy was born at St James’s University Hospital in Leeds, West Yorkshire. Her cerebral palsy was found to be caused by injuries she sustained at birth.

In fact, London’s High Court found that her injury arose out of “clinical negligence” by Leeds Teaching Hospitals NHS Trust. The trust apologized for the “deficiencies in the care provided” at the girl’s birth.

A representative said that the settlement will not only improve the girl’s life but will also ensure her future and enable the child’s parents to also enjoy life with their daughter.

Published on: January 30, 2012

Settlement in Erb’s Palsy Case

by Stephen Bilkis

A birth injury condition known as Erb’s Palsy occurs in about two out of every one thousand births, and it is typically the result of inadequate treatment by a physician or obstetrician.

A study done in Manhattan and Long Island, presented a public announcement identifying recognizable markers of the condition. In most deliveries when the baby was affected, doctor and nursing staff failed to recognize that a C-section should have been performed. Most C-sections in this case would have been based on the baby’s size. Another factor in the development of Erb’s Palsy is inadequate care and delivery situations that result in “shoulder dystocia”. The use of excessive pressure on the baby’s head, neck, or shoulder during delivery can cause several types of pressure-related nerve damages.

In malpractice or negligence cases, families have the right to seek compensation from those who are responsible. It is possibly for the plaintiffs to come to an out-of-court agreement, or settlement that is compensation received when injuries are the result of medical negligence or malpractice. Such settlements are a major boon for families having to deal with the additional costs of therapies and surgeries.

Published on: January 21, 2012

A Study finds that Many Childbirth Injuries are Avoidable

by Stephen Bilkis

A study conducted by the Agency for Healthcare Research and Quality came to the unavoidable truth that many childbirth-related injuries sustained by newborns are relatively common and altogether avoidable.   The analysis examined 2006 data and noted that common issues included injuries to newborns such as broken collarbones, head injuries and infections, as well as maternal injuries during delivery. During the study year, the researchers concluded that almost 157,700 injuries to mothers and newborns could have been avoided had certain signs been observed or procedures been followed. Obstetrical traumas during vaginal births with instruments accounted for the highest rates of injury.   Surprisingly, rates of obstetrical trauma were 44 percent higher for women living in communities that had higher median household incomes than for women living in the poorest communities. Meanwhile, newborns covered by Medicaid and uninsured newborns had lower injury rates than those covered by private insurance. The two findings seem to contradict common perceptions, but the records do not lie.

“Ultimately, it doesn’t matter who you are as tragedy can strike any of us at any time in our lives,” a prestigious doctor says. While we make informed decisions that we hope will lead to positive outcomes, if our knowledge is limited because a doctor has neglected to tell us we are at risk for something, we will blame him or her – the man or woman with the training and the pledge to uphold life.   The use of instrumentation is a highly debated topic. While mechanical aids are used in every path of medicine, in the delivery room, there is a high rate of ineptitude – too high when you consider that another life hangs in the balance of that ignorance.

A positive and interesting note, however, was that overall injury rates for neonates and birthing mothers in Long Island and Manhattan have fallen significantly since the year 2000. For example, obstetric traumas for mothers occurring during vaginal birth without instruments fell 30 percent during that period.