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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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