Articles Posted in Nassau

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When a new mother considers her birthing options, she is often drawn to the home birthing option. No one likes to go to a hospital, and everyone is more comfortable in their own homes. The thought of being able to bring your new childinto the world in the warm environment of their home is an attractive notion for many women and their families. The argument is often raised that women all over the world have babies at home every day. Women have been giving birth to babies for thousands of years without hospitals. This argument leaves out the mortality rate associated with the babies that are born in these other countries, in the past, and at home. A home birth is a wonderful option for an experienced mother who has delivered children previously without difficulty. If there is any chance that a complication may arise in the birth, the safest place for the woman to deliver is in a hospital where she and the infant can obtain the best quality emergency medical care. The safety of the child or children should be the most important factor in deciding the location where a mother will deliver her child.

That was not the case when in December of 2003, a woman in New York decided that she wanted to have a home birth with a midwife. She chose the company called My Midwife to handle her pregnancy. On January 28, 2004, the midwife performed a sonogram evaluation of the woman and discovered that she was pregnant with twin infants. Rather than seeking more specialized medical attention for what is commonly considered a high risk pregnancy, the midwife continued to care for the mother in her home. On June 24, 2004, during an examination, the midwife determined that one of the baby boys heart rates was slowing down. She accompanied the mother to Nassau University Medical Center where they reexamined the mother. They were not able to detect any problem with the baby’s heart rate; however, they advised the mother that that her pregnancy was considered a high risk pregnancy and that they felt that the best action to take would be to admit her into the hospital. They suggested that with admittance to the hospital, they would appoint a high risk pregnancy specialist to take over the woman’s case and to delay delivery as long as possible. They informed the mother that the best course of action when delivering twins is to deliver them in a hospital setting as they commonly have more complications than single pregnancies. The mother conferred with the midwife and determined that the midwife did not have birthing privileges at that hospital. She also discovered that the midwife was not certified to deliver multiple babies. The midwife told her that she would have someone who was certified to deliver multiples present at the birth and the mother left the hospital with the midwife.

Over the next week, the midwife made contact with a nurse practitioner who was qualified to deliver twins. However, she was invited to the birth as an observer. On July 1, 2004, the mother went into labor at home. The midwife arrived along with the nurse practitioner, and one of the owners of the midwife company. The birth was video taped. One baby was delivered with little difficulty, but his brother was born dead. The mother filed a wrongful death suit when she discovered that the midwives and their company did not have the capability of monitoring the heart rates of both babies during the birth.

The mother later learned that if she had delivered in the hospital, the staff would have been able to monitor both infants. They would have been able to determine that one of the infants was in trouble and an emergency caesarian section could have been performed to deliver the twins faster, which probably would have saved the life of the second infant. The mother named the midwife, the midwife company, and the nurse practitioner in her wrongful death suit. The nurse practitioner filed a motion for the court to order a summary judgment in her case.

She contends that she was invited to the birth only as an observer and that she should not have been attached to the lawsuit in the first place since she is not even an employee of that company. The mother disagrees. She claims that the nurse practitioner took an active role in the birthing process and with the newborn infants. The mother claimed that the nurse practitioner took charge of the second twin as soon as he was born and began life saving actions in an attempt to resuscitate him. The mother contends that the nurse practitioner and the others were guilty of medical malpractice in that they assured her that the home delivery would be fine in spite of the fact that there had been a previous incident of the child’s heart rate slowing. She contends that when she was at the hospital that time, the midwife who had gained her trust had assured her that there was nothing to worry about because the child’s heart rate had stabilized. She contends that these people deviated from the standard of medical care in that they did not advise her to go to the hospital or that the delivery was any more dangerous than any other delivery.

The nurse practitioner produced a doctor who stated that the nurse practitioner did not have any contact with the mother during the prenatal process or examinations. Her contention that she was only there as an observer and to video tape the delivery was used as a reason for granting her summary judgment that she held no liability in this case. However, as other medical experts took the stand, it became clear that the nurse practitioner was responsible for much more than video taping and observing. In fact, the midwife company could not have legally performed the home birth of the twins at all if they had not had the cooperation and assistance of the nurse practitioner who was certified to deliver twins. Therefore, much of the ultimate responsibility for failing to call an ambulance for the woman when it became clear that there were problems with the delivery fall directly into the lap of the nurse practitioner as the only one present who was certified to deliver twins.

The nurse practitioner attempted to wrap herself in the protections of the Good Samaritan Law by stating that she was only a volunteer and that any steps that she took to intervene in the birth were taken with good intentions and that she should be removed from liability of medical malpractice based on this contention. The court did not agree. The court determined that the nurse practitioner took an active role in the birth and attempts to resuscitate the stillborn infant. She was the one who was certified to deliver twins and the other professionals on the scene were dependent on her expertise. Summary judgment to detach her from the suit is not granted.
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The infant petitioner, Saad Muhammed, was born at defendant Hospital. The child was born prematurely at approximately 31-weeks gestation. It is alleged that the infant plaintiff suffers from, inter alia, cerebral palsy, spastic diplegia and developmental delay as a result of defendant’s medical malpractice due to failure to properly diagnose the amniotic infection of plaintiff infant’s mother, Sayyeda Fozia Tariq, and the defendant’s failure to properly monitor and intervene during the labor and delivery process.

Plaintiff filed an action for damages for medical malpractice of the defendant’s hospital in administering the birth of the infant petitioner. Defendant filed a motion to dismiss the complaint for failure to file a timely notice of claim.

The issue in this case is whether plaintiff timely filed the notice of claim against defendant hospital for its alleged medical malpractice.

The Nassau Court in deciding the case said that, 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. Pursuant to General Municipal Law § 50-e(5), a court has the discretion to extend a petitioner’s time to serve a notice of claim, as long as the extension does not exceed the time limit for commencement of an action against the 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. General Municipal Law § 50-e(5) instructs the court to consider certain factors.

Section 50-e(5) reads in pertinent part:

“Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.”

The Court said that 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. The relevant inquiry is whether the hospital had actual knowledge of the facts as opposed to the legal theory underlying the claim. Here the record reflects, the following factors: the infant was premature, i.e., born at approximately 31-weeks gestation; was of low birth weight, i.e., 3.2 pounds; needed immediate oxygen resuscitation and was on oxygen for five days after his birth; was transferred after birth to the NICU (Neonatal Intensive Care Unit) and remained hospitalized for one month after his birth. Under these circumstances, defendant’s possession of the medical records sufficiently constituted actual notice of the pertinent facts. Moreover, in light of the defendant’s actual knowledge of the essential facts constituting the claim, there is no substantial prejudice to its maintaining a defense. Finally, where, as here, there was actual notice and an absence of prejudice, the lack of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim. Accordingly, the notice of claim is deemed to be timely served, nunc pro tunc.

However, the Court said that since the infancy toll is personal to the infant plaintiff, Saad Muhammed, it does not extend to the derivative cause of action of the mother, Sayyeda Fozia Tariq. Accordingly, the derivative claims of Sayyeda Fozia Tariq are hereby dismissed.
In support of its motion for summary judgment, defendant Hospital submits the affirmation of Vincent M. D’Amico, M.D., who is board certified in obstetrics and gynecology. Dr. D’Amico concludes that defendant Hospital did not depart from good and accepted standards of medical practice with respect to its treatment of the infant plaintiff and that it did not contribute to or proximately cause his birth injuries. This evidentiary submission, which indicates that defendant Hospital did not deviate from accepted standards of medical care, is sufficient to meet defendant’s burden as a proponent of a summary judgment motion. The burden now shifts to plaintiffs to respond with rebutting medical evidence demonstrating that defendant’s medical malpractice actions were a departure from the accepted standard of care in the medical community and a proximate cause in bringing about the birth injury.

In opposition to defendant’s motion, the Suffolk plaintiffs submit the affirmation of Rosario R. Trifiletti, M.D., board certified in pediatric neurology, who opines that defendant Hospital’s departures from good and accepted standards of medical practice, inter alia, in failing to timely diagnose chorioamnionitis and to perform a c-section substantially contributed to perinatal brain injury, the consequences of which include cerebral palsy. Thus, the affirmations of Dr. Trifiletti and Dr. Halbridge raise questions of fact involving the issues of medical malpractice and proximate cause as to whether the infant plaintiff suffered injury due to the treatment he received from defendant Hospital.

Accordingly, those branches of defendant’s motion which seek to dismiss the complaint for failure to file a timely notice of claim and for summary judgment are denied; that branch of defendant’s motion seeking to dismiss the derivative claims of Sayyeda Fozia Tariq is granted. Plaintiffs’ cross motion for an order deeming plaintiffs’ notice of claim to be timely served nunc pro tunc and to serve an amended bill of particulars is granted in its entirety.
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On 21 February 2002, the infant plaintiff was born at a Hospital in Brooklyn with a congenital condition known as tracheobronchomalacia, defined as a degeneration of the elastic and connective tissue of the tracheal windpipe and bronchi, which can cause central airway collapse with respiration; and a second congenital condition of diaphragmatic paralysis, in which problems arise with the movement of the diaphragm. Shortly after delivery, the infant was admitted to the Neonatal Intensive Care Unit (NICU) for respiratory distress. He was thereafter transferred to another Hospital where it was determined that his condition was not surgically correctable. He was readmitted to Brooklyn Hospital’s NICU, and at the approximate age of three months, he was transferred to the Pediatric Intensive Care Unit (PICU). While in the PICU, the infant plaintiff suffered a cardiorespiratory arrest which required resuscitation. The infant plaintiff was resuscitated after almost one hour, but he had sustained severe neurological damage or brain injury.

From June 1 to 6 of 2002, the period in question, doctor-one was the pediatric intensivist at the PICU. Doctor-two from New York City, a pediatric pulmonologist, was on duty for the department of pediatric pulmonology for patients, and was consulted by the intensivist at the PICU concerning the infant’s pulmonary status. Doctor-three was an attending neonatologist, and claims that her only contact with the infant plaintiff was during a code called by doctor-one on 6 June 2002.

Subsequently, a medical malpractice action was instituted for the plaintiff’s birth injury. Plaintiff alleges that doctors one two and three failed to respond to indications of respiratory distress and disregarded tonic limb extension which was indicative of central nervous system involvement, resulting in the infant suffering a prolonged cardiac arrest with bilateral pneumothorax, and failed to properly resuscitate the infant; that doctor-one failed to respond to various signs, failed to properly diagnose, treat, and medicate; that doctor-one failed to timely administer a therapeutic means of respiratory support; and undertook placement of a peripheral line which was contraindicated, instead of undertaking an alternative IV line placement.

Defendant doctor-one moved for an order granting summary judgment and dismissing the complaint. Defendants doctor-two and doctor-three cross-moved for the same relief.

The Issues:

Was there a medical malpractice on the occasion of plaintiff’s birth injury, i.e., brain injury? Did doctors one two and three deviate from the good and accepted medical practice? Was there enough evidence that such departure was the proximate cause of the plaintiff’s injury? Should the motion for summary judgment be granted and the complaint dismissed?

The Ruling:

On the issue of Timeliness of the Cross-Motion:

Here, the cross-motion of doctors two and three for summary judgment is dated 3 April 2007 and was served by mail on 23 March 2007. This is 126 days after the filing of the note of issue on 17 November 2006.

Under the rules, motions for summary judgment shall be made within sixty days of the filing of the note of issue. Nassau Courts may only entertain an untimely summary judgment motion when the movant demonstrates good cause for his or her delay, which the Court of Appeals has deemed to entail a satisfactory explanation for the untimeliness rather than simply permitting meritorious, non-prejudicial filings, however tardy. Stated otherwise, whether there is merit to the late motion for summary judgment is not a relevant consideration.

The court notes that to the extent that doctors two and three are attempting to rely upon an allegedly timely motion for summary judgment by a co-defendant by denominating their motion as a cross motion, it cannot be considered as such given that it seeks relief against the plaintiff, who is a non-moving party. In addition, they have not explained why this motion needed to be filed as a cross-motion, or why it should not have been filed as a summary judgment motion in the first instance. The Court of Appeals has ruled that litigation cannot be conducted efficiently if deadlines are not taken seriously and that disregarding deadlines should not and will not be tolerated. However, in the case of Grande v. Peteroy, the Second Department recognized that an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds. In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds provide the requisite good cause to review the untimely motion or cross motion on the merits.

Hence, the court considers the cross-motion on the merits.

On the summary judgment:

The law provides that the burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought. However, once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fort which require a trial of the action. Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion. On another note, the essential elements of a medical malpractice claim are a departure from good and accepted medical practice and evidence that such departure was a proximate cause of the plaintiff’s injury. Therefore, on a motion for summary judgment, a defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby.

Here, upon the properly supported papers of both sides, the court finds that issues of fact exist which preclude the granting of summary judgment. Each of the moving defendant doctors has submitted his or her lengthy affirmation in which they state that they committed no departures from accepted standards of medical practice. In contrast, plaintiffs expert has opined that each movant did in fact depart, stating that doctor-one undertook a contraindicated placement of a peripheral line in an unstable infant in an effort to perform an MRI which could have been deferred until the infant was stabilized, and as a result of multiple attempts to place the line, the infant became so agitated as to experience cardiopulmonary arrest significant enough to result in the calling of a code; that doctor-two failed to advise against the MRI-accompanying sedation, even though she documented the infant’s worsening respiratory condition and even though a pulmonary consult had been requested; and that doctor-three failed to properly place and secure the chest tubes to relieve the pneumothoraces, resulting in an unnecessarily prolonged period of cardiopulmonary compromise, and failed to document those procedures she did perform. While the movants have each submitted additional affirmations in reply to plaintiffs opposition, the court finds that the opinions raised present classic differences of opinion among medical experts. Under these circumstances, a credibility question is presented requiring a jury’s resolution and, as a result, summary judgment may not be awarded.

In conclusion, the motion by doctor-one and the cross-motions by doctors two and three are denied.
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On October 10, 1989, a mother brought her son in to the Rusk Institute for his regular evaluation for spina bifida. While they were at the institute, the medical staff noticed that the child had pain in his arm. A medical examination revealed that the child was suffering from a spiral fracture of his upper right arm. The mother stated that the child had not shown any signs of pain or injury prior to appearing at the institute for his check up. She stated that she thought that the child’s one and one-half year old brother must have caused the injury. The medical staff contend that it is beyond unlikely that such a small child would have the strength or ability to cause a spiral fracture of an upper arm. The medical experts also contend that the injury could not have been caused by the child’s spina bifida. The medical staff stated that the child would have been in extreme pain at the time of the accident and for several days following the injury. The medical staff stated that at the time that the mother brought the child to the institute, the injury was obvious and included swelling, bruising, lack of movement, and pain whenever anyone touched the arm. The medical staff contend that the injury was obvious to them and that it should have been obvious to the parents. The contention is that the parents were responsible for neglecting the child to the point of child abuse in that they did not take the child to the hospital for treatment before his appointment on October 10th.

The history of the family is that the woman was notified while she was pregnant that her child would likely be born with birth defects. She chose not to abort the infant. The infant was a little over five months old at the time of the injury. The child was born in Puerto Rico, but the family moved to New York in 1989 so that the child could have care at the spina bifida clinic at the Rusk Institute. On the regular appointment for the child on October 10, 1989, the doctor who was examining him noticed that the right arm was swollen and yellowish-green in color. He arranged for the infant to be taken to the emergency room immediately. The doctor testified at trial that a side effect of spina bifida is a propensity for fractures and that when they occur, there is minimal trauma noted. However, this is usually only below the area where the spina bifida is located on the child. The arm is above this location and the doctor stated that he had never seen a fracture associated with spina bifida in the upper extremities. The doctor stated that he could be relatively certain that the fracture was not associated with the spina bifida and that it would have required a larger amount of force to cause the fracture than what another small child could exert.

The x-rays of the child showed corner fractures in both of the baby’s knees in addition to the spiral fracture of the infant’s arm. The knee fractures were associated with the spina bifida. The arm was the result of a twisting motion that is more commonly seen in child abuse cases. The hospital social worker also observed a bruise on the infant’s cheek that the mother stated had been caused by the little brother as well. The mother told the social worker that she had noticed the swelling on the baby’s arm the day before she took him for his appointment. The social worker filed a report of child abuse because of the nature of the injury and the fact that the mother stated that she had noticed the injury the day before and had not taken the child for treatment.

The mother stated that on October 9, she left both of the children alone for a short time while she took a shower. She stated that prior to showering, she had placed the infant on his side in his crib. The two year old was playing on the floor near the crib. While she was in the shower, she heard the baby crying. She go out of the shower and observed the older brother inside the crib with the baby. She stated that the baby was no longer on his side, but was on his back and there was a bruise on his face where the older brother had struck him. She stated that the older brother is having a difficult time dealing with all of the attention that his little brother is getting. He is jealous of the attention and has to be watched closely so that he does not snatch toys from him or hit the baby. She said that he has been acting out by hitting the baby and demanding to be held when the baby is being held. She stated that he constantly wants to hold the baby and carry him around the way that he sees his parents doing. The mother brought the spina bifida doctor into court to testify for her. He stated that the circumstances as presented by the mother could very likely be the cause for the child’s injury. He stated that if the two year old brother had grabbed the baby by the arm and twisted it around to make the baby lie on his back, he could likely have caused the twist fracture to the arm.

The Nassau and Suffolk courts reviewed the circumstances of this case and the fact that the weakened state of the bones in a child with spina bifida can cause them to exhibit fractures much more easily than a normal infant. The court decided that the doctor who specialized in spina bifida was more likely to be able to deduce the actuality of the injury than any other doctor. The fact that that doctor believes that the injury could have occurred in that manner is believable and the charge of child abuse as it relates to the cause of the fracture is dismissed. However, the matter of why the mother did not seek immediate medical care for the broken arm is still in dispute. The doctor praised the care that the mother has given the infant in that he states that infants with spina bifida have weakened bone structure because of the paralysis. He stated that most infants with spina bifida exhibit muscle ulcers and sores because of their lack of movement. He stated that the fact that this infant does not have these sores is evidence of the excellent care that this mother is providing this child. He further stated that because of the weakened bone structure, that the injury could have been cause simply by picking him up, or his brother pulling a toy out of the baby’s hands.

The court noted that Family Court had made note of the admirable care that the parents have provided for the baby, while at the same time finding that they are neglectful of the child. The Supreme Court vacated the charges of abuse and neglect and returned the children to their parents.
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A man commenced a wrongful death action against a hospital and three physicians. The incident happened when the wife of the man was presented to the hospital to give birth to their daughter. The mother died the next day after the delivery from an infection allegedly not previously diagnosed or treated. In the instant action, the man sought damages in the sum of $500,000 for his wife’s wrongful death and $50,000 for conscious pain and suffering.

The complaint alleges that the physicians undertook and did provide hospital services to the mother with negligence and inappropriate nature constituting acts of medical malpractice and that each of the three doctors was acting within the scope of his employment by the hospital. Thereafter the three doctors settled the wrongful death action against them for $115,000. The settlement was approved by order of the Supreme Court. Two days later, a provision in discontinuing the action as to the doctors was executed by them and the attorneys for the complainant.

Afterwards, the NYC hospital filed a motion for an order requiring the doctors to appear for an examination before trial and it was granted. The order of special term directed the doctors to appear for examination before trial at the conclusion of examinations of the hospital and the complainant man. However, despite the order, the three doctors moved for an order to modify the caption of the man’s action so as to delete their names as party opponents. The doctors contended to the stipulation of discontinuance that they were no longer opponents.

By order, the special term denied the motion asserting that the hospital had a cross claim against the doctors which was still viable. Based on records, the court’s decision was consistent with the hospital’s position that it was seeking remuneration against the three doctors, and that their status as parties under the cross claim was unaffected by the settlement between the complainant and the doctors under the provisions of the general obligations law. The relevant provision with this proceeding includes the effect of release of or covenant not to sue tortfeasors, the release of tortfeasor and the waiver of contribution.
The doctors moved for another proceeding concerning their motion to modify the lawsuit caption of the man. In support thereof, they asserted that since they settled their case with the man, they were not required to participate as opponents in the man’s action against the remaining tortfeasor. The hospital, in opposition to the motion of the doctors asserted that while the settlement eliminated its right to contribution from the doctors, it did not affect the hospital’s cause of action for common law remuneration from the doctors. The special term explained that since the man alleges in his complaint that the three physicians were employees of the hospital and were acting within the scope of their employment at the time they allegedly committed their acts of malpractice, liability of the hospital may well be vicarious in nature and based upon the theory of Respondeat superior at which the hospital is liable on the action of its employees.

In support to the motion of the doctors in modification the lawsuit caption and for another proceeding, the three physicians argued that the prior order of the justice which granted the hospital’s motion to examine them as opponents was void for lack of the court’s jurisdiction. They claimed that as the man settled and discontinued his action against them, they were no longer parties. The thrust of the doctors’ argument on appeal is that despite the allegation in the man’s complaint that they were employees of the hospital, the concession by the hospital that they were independent contractors renders it impossible for the hospital to be held vicariously liable for their acts and, therefore, there can be no common law remuneration.
Twenty-three days after the entry of the order denying the proceeding, the doctors served a notice to admit upon the hospital. The hospital admitted that all three were attending physicians and independent contractors, and not its employees.

The hospital further contends that it is clear that the man’s complaints of negligence and medical malpractice are, in reality, directed to the physicians and not to the hospital. Under the circumstances the hospital would be at most passively negligent and would have a common-law implied right of remuneration over and against the physicians. Specifically, the hospital contends in its brief that the complainant may be able to prove at trial that other employees of the hospital, like nurses and attendants, followed the negligent direction of the physicians. Under those circumstances, the hospital argues, it would be vicariously liable for the passive negligence of its nurses and attendants and it would have a right to remuneration since the hospital stands in the shoes of its employees against the doctors.

As correctly indicated by the hospital, no discovery of evidentiary facts has taken place. Therefore, since the action is still in the pleading stage, it is necessary to ascertain solely from the pleadings whether at the time a claim of indemnity against the physicians may exist in favor of the hospital. According to the man’s complaint all of the opponents undertook to and did provide hospital services to the wife with negligence and inappropriate nature and each of the three physicians was acting within the scope of his employment by the hospital.

With respect to the hospital’s admission obtained by the three physicians, the law is settled that the purpose of the notice to admit procedure is not to obtain information in lieu of other disclosure devices, but only to eliminate from the issues matters which will not really be in argument at the trial. Moreover, while the hospital did respond to the notice to admit, the information sought therein, whether the three Nassau physicians were independent contractors, was in fact a request for an admission to an ultimate or conclusory fact which can only be determined after a full and complete trial.

The appellate division submits that the elimination of the three physicians as opponents at the stage of the action is fraught with possible procedural complications. A finding, after a trial, that the hospital is vicariously liable for their negligence, without their being the opponents would not be binding upon them. Such an eventuality would defeat some of the essential purposes for the enactment of law and rules pertaining to interpleader, third-party practice, and the interposing of cross claims and counterclaims, namely to avoid multiplicity of proceedings, to nurture a speedy, less expensive administration of justice and to determine the ultimate rights of all parties in one trial.

In addition, deferring the consideration of any application dealing with the true relationship between the hospital and the three physicians at the time of the occurrence, at least until after pretrial depositions of all the litigants as parties to the action have been conducted, is in accordance with sound procedural practice and eminently fair to all.

Consequently, the appellate division finds that the appeal from an order of the Supreme Court was dismissed and no appeal lies from an order denying a motion for another proceeding. Furthermore, the order of the same court is affirmed. The hospital is awarded one bill of 50 costs and disbursements to cover both appeals.
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A 41-year-old physician and mother of one went into labor after an uncomplicated pregnancy. When notified at the onset of labor, a specialist in obstetrics and gynecology who had delivered the woman’s first child directed the expectant parents to the Physicians’ Hospital.

After admission to the hospital at 1:30 A.M., the patient was brought to the labor room area. Although no house physician performed an examination of the patient, a Nurse monitored the progress of labor, noting the frequency of contractions and the fetal heart rate, and performed a vaginal or rectal examination. At 1:35 A.M. the nurse telephoned the attending obstetric gynecologist to notify him of the patient’s admission and progress in labor. The hospital chart indicates that the mother’s contractions were every three minutes and moderate; and the fetal heart rate was regular. Over the telephone, the attending physician prescribed several drugs, including a pain killer, which the woman’s expert witnesses at trial conceded did not contribute in any way to the infant’s injuries.

The attending Nassau physician arrived at the hospital and performed a vaginal examination of the patient. He found that the cervix was fully effaced and dilated, meaning that the patient had progressed to the second stage of labor. He also determined that contractions were four minutes apart (this just after administration of the pain killer) and that the station was minus two (meaning that the fetal head was two centimeters above the pelvic spines which form the entrance to the birth canal). Immediately after completing the examination and without directing an X-ray pelvimetry (to rule out the possibility of cephalopelvic disproportion, i.e., disproportion between the size of the presenting part of the fetus, usually the head, and that of the mother’s pelvis), he ordered the administration of an oxytocin, to speed labor, because, as he testified at trial, contractions had begun to slow down and he was dealing with a desultory labor (dystocia). The hospital records, however, took no note of uterine dysfunction and indeed noted that labor was good and active. In any event, within five minutes of the examination, the oxytocin, which experts at trial universally agreed can cause compression of the umbilical cord by virtue of the uterine compressions it induces, and can impede the flow of blood and oxygen to the fetus, was hanging over the bed being infused intravenously to the expectant mother.

During the steady drip of eight to 10 drops per minute that continued up to delivery more than one hour later, three notations were recorded in the hospital record relating to the patient’s contractions and the fetal heart rate. According to the record, just after administration of the oxytocin, contractions were two to three minutes apart and moderate, and the fetal heart rate was 132; at 2:30 A.M., contractions were still moderate and coming every two to three minutes, and the fetal heart rate was 136; and at 2:45 A.M. the patient had contractions and was and the fetal heart rate was 136. Apparently these were the only recorded entries, all made by the Nurse who, while she claimed that she monitored the patient every 10 minutes, nevertheless admitted at trial that she was in and out of the delivery room as she prepared the patient for delivery.

As for the attending physician, he maintained that up until 2:45 A.M. he monitored the patient many times (notwithstanding the fact that the Suffolk Code required a physician to maintain continuous observation when a potentially dangerous drug like oxytocin was administered). Indeed, upon further examination, the doctor admitted that at this time he went to the cafeteria on another floor, where he talked with the attending anesthesiologist, and the patient’s husband, a second-year resident physician. The attending physician stated that he was in the cafeteria for five minutes, which estimate later became five to 10 minutes, and he eventually conceded that it could well have been 20 minutes. When he left the cafeteria, he did not go back to the labor room but instead monitored the patient from the hall across from the labor room.

At approximately 3:00 A.M., the woman was wheeled to the delivery room with oxytocin still being administered to her. The anesthesiologist gave her general anesthesia. During the 15 minutes or so in the delivery room prior to birth, the Nurse did not monitor the fetal heart rate. The anesthesiologist who admitted that it was his responsibility to monitor the fetal heart rate while the mother was in the delivery room so as to be able to correct any condition of hypoxia, the deprivation of oxygen to the brain, admitted on cross-examination that he did not listen to the baby’s heart rate during the time it was in the mother’s womb.

The infant was born by normal spontaneous delivery but in obvious respiratory distress. The hospital record noted that at one minute after birth the baby had absolutely no muscle tone, no reflexes, no respiration, slight cyanosis (bluishness) and a heart rate of 160, resulting in an Apgar score of roughly 3 (optimal 2 for each component, maximum score of 10). The attending physician who testified that resuscitation was beyond his field of expertise, cut the umbilical cord and directed his attention to delivering the placenta (found to be normal), as well as repairing the episiotomy. He turned the care of the child over to the anesthesiologist and the Nurse.

The anesthesiologist maintained that after taking the Apgar score one minute after birth, he suctioned the baby’s airway with a laryngoscope to clear it of obstructions. Although qualified to insert an endotracheal tube, he began, anywhere from one to two minutes after birth, resuscitation by means of an ambubag, comprised of a mask that fits over the infant’s mouth and a tube connected to the oxygen supply. According to him, he placed the baby on the mother’s chest, stood at the head of the delivery table, reached over the mother and with one hand holding the child, used the other hand to hold the mask on the child’s face, to squeeze oxygen into the child’s mouth, and to monitor the resuscitative efforts. The doctor’s notations in the hospital record indicate that the child, suffering from protracted apnea (absence of respiration), began crying four minutes after birth, at 3:20 A.M. He testified that the infant breathed two to three minutes before that. He allegedly cared for the infant between two and 10 minutes, after which the baby was placed in an incubator. On cross-examination, however, the doctor claimed that the infant was in the incubator during all his resuscitation efforts. He denied ordering the drug nalline for the child (although his counsel conceded as much on summation), and could not remember giving the nurse any instructions as to the resuscitation of the child.

On the other hand, according to the Nurse who had no special training in resuscitation, it was she who did the initial suctioning with a mucous trap, then placed the child in a crib, and within a minute and a half, administered oxygen under pressure to him. The oxygenation, which she claims to have done, not with an ambubag, but with a completely different device, produced no initial response but was continued until the infant started shallow irregular respiration.

The nurse testified that she handled the device to administer the oxygen except for the time she left the delivery room, at the attending physician’s direction, to telephone the pediatrician; only then did the anesthesiologist do anything with respect to the resuscitation of the baby. She also testified that the anesthesiologist ordered her to administer the nalline.

At approximately 4:00 A.M., the pediatrician who had been previously summoned by the Nurse arrived at the delivery room. After eliciting a history, he conducted a complete physical examination of the newborn. According to the hospital record, the examination revealed that the infant’s cry was weak to absent even after stimuli, the muscle tone was poor, the heart was regular, the reflexes were poor, and the color was fair. The pediatrician noted that the child was suffering from tremors of the lower and left upper extremities. The doctor also noted that there was nasal flaring, indicating to him that the baby was trying to get more oxygen. At three places in the hospital chart, he noted that he suspected the child’s problems may have been caused by hypoxia, or lack of oxygen to the brain. The contemporaneous tests he performed, however, revealed nothing wrong with the placenta, no abnormalities in the umbilical cord, no infectious process, and no metabolic imbalance which would account for the child’s birth injury.

At 7:30 A.M., the infant was transferred to New York Hospital. The infant was still receiving oxygen when he was transferred, and the final diagnosis recorded was Generalized Tremors, R/O Hypoxia. The diagnosis upon admission at New York Hospital was perinatal hypoxia.
The complainants instituted the birth injury action contending that the infant’s condition, diagnosed as athetoid cerebral palsy, resulted from medical malpractice by the opponent doctors and the opponent hospital.

The jury subsequently returned verdicts against the attending physician, the anesthesiologist and the hospital and a verdict in favor of the pediatrician. The anesthesiologist was found most culpable (53%), followed by the attending physician (40%) and the hospital (7%). The jury’s assessment of the personal injuries was in the sum of $7,500,000. The opponents’ motions to set aside the verdict on various grounds were denied.

The three opponents inculpated by the jury appeal principally on the ground that the claims of medical malpractice were not supported by the evidence. They also contend that certain errors by the trial court require reversal.

Although a jury verdict is to be accorded great weight, it is well settled that a general verdict in favor of a complainant cannot stand unless all the theories of liability submitted to the jury are sustained by the evidence. If evidence is wanting on one or more of the theories submitted to the jury, the verdict must be set aside for, as the Court of Appeals explained, it is impossible from the general verdict returned by the jury in accordance with the trial court’s instructions to determine that the verdict was not predicated on a finding in complainants’ favor on one of the claims which, for lack of supporting proof, should not have been submitted to it.

There was no medical testimony offered to demonstrate that any alleged negligence on the hospital employee’s part in failing to examine the patient when her own physician was on the way amounted to a departure from the standard of medical care extant in the community.
Even assuming a departure from accepted standards of good practice, mere evidence of negligence would not be sufficient by itself to establish liability. A causal connection between the alleged negligence and the event that produced the harm would also have to be proved. No medical testimony was elicited to suggest that the hospital employee’s failure to perform an internal examination of the woman was a proximate or contributing cause of the infant’s birth injuries.

The appealing opponents contest the sufficiency of the evidence not just as to some of the theories submitted to the jury but as to all the theories submitted to the jury.
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A woman gave birth sometime on October 7, 2005 at a college hospital. An obstetrician attended the birth but an obstetrical resident was the doctor who personally delivered the baby.

The woman’s delivery progressed well but her pushing had to be temporarily stopped because when the baby girl’s head was delivered, it was seen that the umbilical cord was wrapped around the baby’s head. The resident clamped the umbilical cord and cut it and then delivered the rest of the baby. The child’s head presented itself with the back of her head facing the right side of her mother’s body. The mother suffered a vaginal laceration with the birth because no episiotomy (surgical cut in the vagina to allow easier delivery of the baby) was made by the resident. They then repaired the vaginal laceration.

After the birth, the pediatrician noted a weakness in the right arm of the baby. The diagnosis was Erb’s palsy as a consequence of the baby’s shoulder getting caught in the mother’s pubic bone. With the mother’s uterus pushing the baby out and the resident pulling the baby out, the baby’s right shoulder was stretched and suffered a fracture and the nerves were pulled and injured resulting in muscle weakness in the right shoulder and right arm.

The woman brought a suit in damages for the medical malpractice of the attending obstetrician, the obstetrical resident, and the college hospital. The woman claims that the doctors’ negligence and deviation from accepted medical practice directly caused the injury to the baby.

The two doctors and the college hospital filed a motion for summary judgment. In support of their motion, they proffered the expert opinion of an obstetrical expert who claimed that the shoulder dystocia of the right shoulder could not have occurred seeing as the child was delivered with the left shoulder passing under the mother’s pubic bone. If shoulder dystocia did occur, it should have occurred on the left shoulder and not on the right shoulder as the right shoulder did not pass near the mother’s pubic bone. The expert stressed that if shoulder dystocia was noted, it would have been noted by the doctors in the charts and records of birth. The expert claimed that the shoulder dystocia of the right shoulder could have been caused by the force of the mother’s uterus as it contracted to expel the baby. In this case, the expert opined, the injury to the child was not caused by any medical malpractice on the part of the doctors, instead, it can be attributed to the action of the mother’s own uterus.

The woman opposed the doctor’s medical expert from Nassau and Suffolk by producing her own medical expert who claimed that the resident was inexperienced in delivering babies. It is possible, according to the mother’s expert, that the resident did not notice that the shoulder became stuck because the resident was too busy removing the umbilical cord around the child’s neck. The delivery of the rest of the baby was stalled and restarted. This was done by the resident telling the mother to begin pushing once more and at the same time, the resident began pulling and pushing the baby in a downward and outward motion. This is most probably when the right shoulder became overly stretched and the nerves on the right shoulder stretched and injured as well resulting in the weakness of the right shoulder. This also explains, according to the expert, why neither the resident nor the attending obstetrician failed to chart the shoulder dystocia. The mother’s expert also claimed that shoulder dystocia due to the action of the mother’s uterus is a zero possibility.

The only question before the Court is whether or not the motion for summary judgment should be granted.

The Court that in this case where the expert testimony of the doctors and the expert testimony of the mother are opposed on all material points, then an issue of material fact has been raised that must be determined only by a jury. The Court then denied the motion for summary judgment and remanded the case for trial.
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In February of 2006, an elderly woman was a resident of the Jewish Home and Infirmary of Rochester, New York, Inc. It is owned and operated by the Jewish Health Care System of Rochester, Inc. One day, the nursing staff failed to follow procedure as it concerned this woman. She required catheterization to urinate. However, on that date, no one arrived to insert the catheter. Feeling uncomfortable, the woman attempted to get out of her bed and go to the bathroom on her to catheterize herself. However, when she stood up, her bladder vacated itself on the floor. She slipped in the puddle and fell. She was injured and complained of pain from the fall. The staff performed a few diagnostic evaluations, but continued to keep her moving. The medical staff at the home encouraged the nurses to keep her attempting to walk and going to physical therapy.

The elderly woman continued to complain of pain. She was examined by the staff doctor on at least one occasion, however, he did not perform a neurological test. In fact, her fall was never noted in the doctor’s documentation. She continued to get worse and fell again on March 12, 2006 while the staff was trying to get her to walk again. On March 15th she was in such severe pain that the staff ordered a CT scan of her back. It was discovered that she had fractured the T7 vertebrae and the test also showed a compression deformity of T11. The doctor at the facility failed to have her transferred to the hospital for treatment and failed to follow any protocols for protection of the spinal cord to guard against spinal cord damage.

On March 18, 2006, the woman’s son in law came to visit her. He is a board certified physician in the state of New York. He performed a neurological evaluation and demanded that she be transferred to a hospital emergency room immediately. At the hospital, she was diagnosed with compression fractures of her thoracic spine area. She was also diagnosed with a spinal cord injury that caused her to be paralyzed from the waist down. She lost bladder and bowel control due to the injury and would spend the rest of her natural life in a wheel chair. Her family who live in Nassau and Suffolk filed a medical malpractice lawsuit against the doctor and the facility for failing to provide appropriate care.

The suit details the fact that the nurses had failed to catheterize the woman according to the known details of her medical condition and care. This deviation from what is a standard medical practice is only the first instant of medical malpractice in this suit. After the staff failed to assist the woman in catheterization, she was forced to attempt to go the bathroom on her own. When she fell, she was not provided with appropriate care to treat her fractured spine or to protect her spinal cord. In fact, just the opposite was true since the staff continued to encourage her to move her back around by walking and attending physical therapy. The staff continued to ignore the woman’s complaints of severe pain. It was their continued disregard for the welfare of this patient that caused her to suffer from an injury to her spinal cord. There were many deviations from standard care in this situation. The qualifications for initiating a medical malpractice suit is that the victim must be able to show a deviation from commonly acceptable medical practices and care. There is no doubt that this situation met that standard. The court agreed and determined that there was a triable case.
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A legal action was filed by a mother to recover damages for the alleged medical malpractice against the medical professionals who handled her medical care and treatment during her pregnancy. The mother asserted in her first reason of action that due to her physician’s negligent care and treatment for her entire pregnancy up to her delivery, she gave birth to an infant suffering from congenital defects. The mother further alleges that the physicians’ failure to diagnose the fetus’ congenital defects during the term of the pregnancy resulted in the infant being born with multiple life threatening congenital defects causing her to suffer substantial economic loss for medical care of the infant. On the mother’s second reason of action, she claimed that due to the negligence of her physicians, she was caused to endure pain, suffering, anxiety and the emotional distress of giving birth to a disabled child, learning that the child suffered from multiple congenital defects and emotional injury flowing from those disabilities. The mother further alleges independent personal injury resulted from the surgery necessary to remove a portion of her liver to transplant into her infant son and the emotional injury stemming from her transplant surgery. The mother claimed that if not for the negligence of the physicians, her liver transplant surgery would not have been necessary. The third reason of action in the complaint is a derivative claim of the husband for medical expenses stemming from his wife’s liver transplant surgery and the attendant loss of services.

The physicians now move for a request to dismiss the second and third reasons of action in the complaint on the grounds that emotional distress is not recoverable as a result of the birth of a child born with congenital defects and the mother’s claim for personal injury is unrelated to the care and treatment rendered by the physicians during her pregnancy. The physicians in Nassau and Suffolk state that the mother did not suffer an independent physical damages apart from those recognized in normal labor and delivery of a child and the surgery complaint was a result of the mother’s voluntary donation of a portion of her liver to her child. The physicians further assert that the derivative claim of the husband also must fail as it is predicated upon the emotional injuries claimed by the mother and also from the mother’s voluntary donation of a portion of her liver.

The complainants oppose the motion on the grounds that the physicians’ misunderstand the second reason of action as a claim exclusively for emotional injury flowing from the fact that the complainants’ son was born with congenital deformities. The complainants argue that the second reason of action seeks to recover for the physical and emotional injury of the mother related to the surgery necessary to donate a portion of her liver to her infant son, as well as the emotional damages of a parent of a disabled child, and the emotional damages flowing from the disabilities of her infant son. The complainants also argue that the derivative claim in the third reason of action flows from the physical and emotional damages of the wife as a result of the transplant surgery.

It is acknowledged that the mother was under the care and treatment of the physician during her pregnancy and the mother gave birth to an infant son with multiple congenital abnormalities. It is also certain that the physicians did not cause the congenital defects but the mother asserted that the physician failed to properly interpret the sonograms during the pregnancy and failed to order additional testing which would have revealed the abnormalities and which would have afforded the complainants the opportunity to terminate the pregnancy.
The issue therefore, is whether the complainants may recover for the mother’s emotional pain and distress of carrying a child to term, giving birth, and learning upon delivery that the child suffered from multiple congenital defects. The second issue concerns whether the mother of a child, as the only viable liver donor, can recover for alleged physical and emotional damages related to a voluntary elective surgical procedure, performed on the mother approximately one year after the birth of her child. The husband’s derivative claim as alleged in the third reason of action flows directly from the wife’s claims concerning her transplant surgery and is determined accordingly. Solely for the purposes of the motion, the court will assume the physicians liability in failing to interpret the sonograms and for failing to order additional tests such as a level 2 sonogram.

With regard to the first issue, the mother’s claim for emotional distress associated with the delivery of a child with multiple congenital defects has previously been dealt with by the court and it is not a legally cognizable claim. It is well settled that the complainant parents may not recover for the emotional harm alleged to have occurred as a consequence of the birth of their infant with multiple congenital defects.

The complainants also argue in their second reason of action that the mother’s voluntary liver transplant surgery was necessitated by the physicians’ negligence and they are therefore liable. The complainant’s further asserted that due to the condition known as biliary atresia, discovered after the child’s birth, the drainage of bile from the liver was prevented and the infant suffered irreversible liver damage requiring a liver transplant. The mother affirmed that she was the only viable donor for her child. In the mother’s affidavit, she stated that the liver donation which she agreed to and underwent was a very necessary action undertaken by a parent, upon the advice of a highly qualified medical specialist, to support her son whom she had been advised would not survive without the benefit of a liver transplant. The mother also claimed that she did not hesitate to undertake the parental responsibility to enable her son to survive when she agreed to donate a portion of her liver. The mother’s donation of a portion of her liver was a very admirable action and was one which, the court presumes, every loving parent would undertake for the benefit of their child. The complainant however, seeks to have the court expand liability to the physicians for a voluntary donation which it is not inclined to do.

During the time that the mother underwent the transplant surgery, she was no longer a patient of the physicians. She did not consult with the physicians concerning her transplant surgery and had not been their patient for approximately one year. Any duty that the physicians owed to the mother involving her pregnancy and the birth of her child had ended. In addition, the decision by the parents, particularly the mother as the only viable donor, to voluntarily undergo organ transplant surgery for the benefit of the child constituted an independent intervening act which was not a normal or foreseeable consequence of the physicians’ alleged negligence. Furthermore, any pain and suffering or emotional distress stemming from the transplant surgery would also not be recoverable. The husband’s derivative claim in the third reason of action, predicated upon the claims in the second reason, also fail for the reasons mentioned above.

As a result, the physicians’ motion to dismiss the second and third reason of action in the verified complaint is granted and the first reason of action for financial damages shall continue.
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Thirty years ago, a mother ingested a pill called diethylstilbestrol (DES) during her pregnancy which resulted in the birth of the complainant. The woman alleges that because of her mother’s uterus’ exposure to DES, the woman developed a variety of abnormalities and deformities in her reproductive system. As a result, several of her pregnancies terminated in spontaneous abortions and another resulted in the premature birth. The pre-term granddaughter suffers from cerebral palsy and other disabilities that they attribute to her premature delivery, birth injury and ultimately, to the woman’s mother’s ingestion of DES.
The action was commenced by the woman and her husband individually and on behalf of their daughter against several manufacturers of DES. After the issue was joined, the accused parties sought summary judgment to dismiss the complaint. The accused parties contended that the actions were barred by the Statute of Limitations and by the complainants’ inability to identify the manufacturer of the drug ingested by the mother of the woman. In addition, the accused parties argued that the daughter’s claims of a preconception tort presented no cognizable cause of action.

The Supreme Court agreed with the accused parties that the claims stemming from the daughter’s injuries were not legally cognizable and the court dismissed all four causes of action brought on her behalf and those asserted by her parents for their emotional injuries resulting from the daughter’s birth. The manufacturer’s motions were otherwise denied, however, leaving intact the woman’s claims relating to her own injuries and her husband’s derivative claim based upon his wife’s birth injuries.

On cross appeals, the Appellate Division modified by reinstating the third cause of action in the complaint that cause of action brought on behalf of the daughter based upon strict products liability. The accused parties sought the Court for leave to appeal, which the Appellate Division granted.

It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent miscarriages. In 1971, the Food and Drug Administration banned the drug’s use for the treatment of problems of pregnancy after studies established a link between uterus exposure to DES and the occurrence in teen-age women of a rare form of vaginal and cervical cancer. The complainants allege that in uterus exposure to DES has since been linked to other genital tract aberrations in DES daughters, including malformations or immaturity of the uterus, cervical abnormalities, misshapen fallopian tubes and abnormal cell and tissue growth, all of which has caused in the population a marked increase in the incidence of infertility, miscarriages, premature births and ectopic pregnancies.
The Legislature and the Court have both expressed concern for the victims of the tragedy by removing legal barriers to their tort recovery–barriers which may have had their place in other contexts, but which in DES litigation worked a peculiar injustice because of the ways in which DES was developed, marketed and sold and because of the insidious nature of its harm. Hospitals in Nassau and Suffolk are aware of this.

More recently, the Court responded to the fact that–for a variety of reasons unique to the DES litigation context–a DES complainant generally finds it impossible to identify the manufacturer of the drug that caused her injuries. The Court held that liability could be imposed upon DES manufacturers in accordance with their share of the national DES market, notwithstanding the complainant’s inability to identify the manufacturer particularly at fault for her birth injuries.

Accordingly, the order of the Appellate Division should be modified, with costs to the accused parties. The manufacturers’ motion for summary judgment to dismiss the third cause of action is granted. The certified question of whether the Supreme Court has erred should be answered in affirmative.
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