Articles Posted in New York City

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The infant’s mother was under the care of East Bronx Medical Group during her third pregnancy. On 2 April 1969, at about 11:30 P.M., she was admitted to Bronx Lebanon Medical Center in the early stages of active labor.

Doctor-one of the Medical Group determined late in the mother’s pregnancy that her uterus may have been developing larger than normal. X-ray studies ruled out any congenital abnormality or multiple births. Clinical pelvimetry, which is an internal examination of the dimensions of the pelvic canal, revealed that the intertuberous measurement was 8.0 centimeter which indicated that the mother had an adequate pelvis for the delivery of a child. Moreover, the mother had already given birth to an average-sized baby without any difficulty.
Present in the delivery room and attending to the mother were doctor-two, the patient’s private obstetrician and a member of the Medical Group, and doctor-three, a second-year resident who had performed 150 deliveries, a third of which were forceps deliveries.

At the delivery room, within two hours of labor, the head was engaged; and within three hours, the cervix was fully dilated, was completely effaced and the membranes ruptured. At this point, doctor-two and doctor-three found no abnormality and they found no reason that the fetus could not be delivered by normal vaginal delivery. Fetal distress was noted at 2:23 A.M., the umbilical cord was found wrapped around the child’s neck, a probable cause for the fetal distress. The fetus was low down in the pelvis, in a face up position rather than the more common face down position. Several unsuccessful attempts were made to manually rotate the fetal head and, since time was of the essence, doctor-two decided that a mid-forceps delivery was necessary. Doctor-three agreed with the decision. Doctor-three used the forceps under the supervision of doctor-two and the fetal head was delivered by intermittent traction and relaxation in an attempt to simulate the normal uterine contractions. Doctor-three testified that he had to exert more force than usual to deliver the head in the face up position, but used no more force than was necessary. On delivery of the head it was discovered that the umbilical cord was wrapped around the neck and that the child was cyanotic. The umbilical cord was removed and gentle manual traction was applied to the head in an attempt to deliver the rest of the fetus. However, it was then observed that the shoulders were not being delivered; they were impacted, a condition known as shoulder dystocia. The right shoulder had overridden the public bone and was obstructed by it, preventing delivery. Because the baby was partly delivered, a Caesarian Section at this point was impossible. The child had to be delivered vaginally and, since the child had difficulty breathing, his shoulder had to be freed within a few minutes. In this situation, doctor-three applied gentle traction to the head to extract the child, each physician attempted to rotate the shoulder by the corkscrew method, that is, the manual rotation of the fetus, and doctor-two applied fundal pressure, that is, downward pressure on the mother’s abdomen, and doctor-three inserted his hand to accomplish the delivery of the posterior shoulder (left) first, permitting the right shoulder to slip under the public bone.

As a result, the baby sustained a 2mm depressed occipital fracture, injury to the upper and lower brachial plexus, and a fractured clavicle which healed.

Thereafter, a medical malpractice action ensued on the basis of the birth injury or birth injury accident suffered by the infant plaintiff.

The jury awarded to the infant plaintiff the sum of $300,000 for birth related injuries and to the infant’s father the sum of $50,000, reduced on consent to $25,000, for loss of services.

The jury found that several departures were the proximate cause of the injuries.

The Ruling:

The failure to do an x-ray pelvimetry was not a departure from accepted medical practice and did not cause the infant’s injuries. X-ray pelvimetry is a technique used to compare planes of the pelvis with the size of the fetal head. The record reveals that an intertuberous diameter of 8.0 centimeters does not indicate a need for x-ray pelvimetry. Its use would have been futile as the record reveals that for labor to progress there had to be no cephalo-pelvic disproportion. Indeed, the mother had been pregnant twice before and delivered once and had never had pelvimetry performed. Furthermore, shoulder dystocia cannot be forecast by x-ray pelvimetry, or any other diagnostic tests, thus, such procedure would not have avoided the problem. There is no explanation as to why the dystocia occurred.

The court finds that the jury’s decision is against the weight of the credible evidence that there was malpractice in allowing labor rather than performing a Caesarian section.

Where alternative procedures are available to a physician, any one of which is medically acceptable and proper under the circumstances, a physician cannot be held liable for malpractice when he uses one of two acceptable techniques. There is a much higher risk of death to the mother when the delivery is by Caesarian section rather than by vaginal delivery.
Moreover, the court does not find any medical malpractice in the use of the forceps to deliver the child in the face up position. There was no deviation in the type of forceps used or in the actual application of the forceps. Plaintiffs’ expert even admitted that the use of forceps was justified in the presence of fetal distress and that the type of forceps used was proper.
Here, it cannot be said that excessive force was used to deliver the shoulder merely because the child was delivered with palsy, a known complication of dystocia. Presence of an injury does not mean that there was negligence.

Furthermore, the failure to obtain the mother’s consent to have doctor-three deliver her baby under the direct supervision of doctor-two should not have been given to the jury. Doctor-three was a resident and it was the custom at that hospital for all the obstetricians to allow residents in their training, especially in the advanced stages of their training, to do complicated deliveries. The plaintiffs continually tried to make a distinction at the trial as to the standard of care rendered a private patient and a service patient. There is no difference. As far as the consent issue is concerned, the mother, by going to Bronx Lebanon, consented to the customs and practices of that hospital. The real issue concerning doctor-three was whether he caused any of the injuries which would not have occurred had the mother not wanted him there. Doctor-two stated that even if the delivery had been attempted alone he would have needed assistance when the emergency arose.

Also, the argument that a Caesarian section could have begun in five minutes is against the weight of the credible evidence. The attending physicians did not see the need to subject the mother and the baby to the risks of a major surgical procedure. The court finds no support for the jury’s finding that the failure to do x-ray pelvimetry caused the injuries suffered by the infant.

The other findings of malpractice are against the weight of the credible evidence. Thus, the judgment is reversed and a new trial is proper.

The court did not reach and have not considered the claim of excessiveness. The reduction referred related only to the $50,000 awarded for loss of services which has been reduced by the Court, upon plaintiffs’ consent, to $25,000.

In sum, the judgment for plaintiffs against defendants is reversed, on the law and on the facts, as to defendants-appellants East Bronx Medical Group, doctor-two, doctor-one and another doctor, and the matter is severed as to said defendants and remanded for a new trial; the portion of the judgment dismissing the complaint as to the defendants Bronx Lebanon Medical Center and doctor-three is affirmed.
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The Facts:

On 30 May 2000, the infant plaintiff was born approximately twelve weeks prematurely in a medical facility operated by defendants. The infant plaintiff suffered from neonatal respiratory distress syndrome, and he was placed in neonatal intensive care, where his blood oxygen and blood acidity was monitored by defendants’ staff. The blood oxygen was continuously measured by a pulse oximeter: a device, attached to the patient’s finger that uses light to measure the amount of oxygen in the blood. A respirator and breathing tube was used when it was noted that the infant plaintiff cannot breathe. At 11:00 AM on the following day,

Defendants’ staff performed arterial blood gas analysis, which is a laboratory analysis of a drawn blood sample that specifies both the acidity and the amount of saturated gas in the sample. The test demonstrated that the pH of the infant plaintiff’s blood was 7.254. At around 2:30 PM, a NYC doctor, also of defendants’ staff, ordered a second arterial blood gas analysis. At 3:00 PM that afternoon, the blood oxygen saturation was over 90%, according to the pulse oximeter. At 4:15 PM, the blood oxygen saturation dropped to around 50%-60% from a previous level of over 90%. Shortly thereafter, defendants’ staff noted that the infant was suffering from a hemorrhage in the lungs. Consequently, the staff cleared the blood from the lungs and then adjusted the respirator settings and breathing tube. The staff then administered a paralytic to immobilize the infant plaintiff and prevent him from removing the breathing apparatus. At 8:00 PM, another arterial blood gas analysis was done, the result of which was a pH of 6.7, which is dangerously low. The staff then adjusted the respirator to administer more oxygen through forced breathing. The following day, medical imaging showed that the infant plaintiff had suffered a brain hemorrhage and hydrocephalus, which is increased intracranial pressure on the brain caused by the accumulation of fluid. The hemorrahge caused periventricular leukomalacia, the destruction of white matter of the brain. This, in turn, caused the infant plaintiff to develop cerebral palsy; a brain injury.

Subsequently, plaintiffs commenced an action to recover damages for the neonatal medical malpractice on the ground of the birth injury or birth injury accident; that defendants, through their agents, engaged in acts and omissions that constitute medical malpractice; that this malpractice caused the infant plaintiff to develop cerebral palsy and caused derivative losses to his mother. At the close of trial, plaintiffs also sought damages for pain and suffering.
The jury returned a verdict for plaintiffs, deciding that defendants’ staff departed from good and accepted medical procedure by failing to monitor the infant plaintiff’s blood gas levels and by failing to maintain a proper acid/base balance in the infant plaintiff’s blood; that these departures were a substantial factor in the infant plaintiff’s present condition; that defendants’ staff should have known that the condition of the infant plaintiff had deteriorated since forced breathing was first administered and that defendants’ staff should have known that the condition of the infant plaintiff would continue to deteriorate. With respect to damages, the jury awarded: $75,000 for pain and suffering of the infant plaintiff up until the present date; $4,500,000 for future pain and suffering of the infant plaintiff, based on a life expectancy of 70 years; $7,500,000 for earnings lost by the infant plaintiff; $4,500,000 for necessary future medical care; $1,500,000 for future therapy needs; $4,500,000 for needed supplies;

$3,000,000 for home or facility care; and $6,000,000 for the derivative claim asserted by infant plaintiff’s mother and natural guardian.

Defendants now move for an order setting aside the jury verdict and dismissing the complaint, or, alternatively, setting aside the jury verdict and ordering a new trial.

Plaintiffs cross-move for an order directing judgment in the instant action.

The Ruling:

Defendants assert four arguments in favor of their motion.

First, that the defendants were prejudiced by the court’s decision to permit testimony regarding claims beyond those specified in plaintiffs’ bill of particulars; specifically, that the bill of particulars makes no mention of any alleged failure to perform adequate arterial blood gas tests.

The court denies the argument, noting the language of the bill of particulars, which alleged malpractice because of the failure to properly and timely oxygenate and failure to properly assess infant’s condition immediately after birth on the part of defendants’ agents. There is no authority cited for defendants’ argument that alleged malpractice immediately after birth would not include malpractice the day after birth, neither is there any authority for their position that an alleged failure to monitor arterial blood gas is a different theory than failure to properly assess infant’s condition. Moreover, since the arterial blood gas tests were part of the infant plaintiff’s chart, there is no merit to defendants’ claim that allowing testimony of the tests constituted prejudice or unfair surprise.

Thus, there is no merit to th Westchester defendants’ claim that permitting arterial blood gas testimony prejudiced them.

Second, defendants assert that the court erred when it precluded their expert from testifying that sepsis either caused or may have caused the infant plaintiff’s present condition; that relevant medical records identify that the infant plaintiff was infected by bacteria and there would have been no prejudice or surprise to plaintiffs if their expert testified regarding sepsis.
Here, defendants’ disclosure makes no mention of infection. Defendants’ own neonatal expert conceded that the sepsis theory was an afterthought during direct examination.

Notwithstanding any present argument to the contrary concerning expert disclosure, the strategy of advancing that infection caused the present condition of the infant plaintiff was quite literally conceived by counsel for defendants and their hired neonatal medicine expert.
Thus, there is no merit to defendants’ contention that the court should have permitted their expert to testify about sepsis.

Third, defendants’ contentions that plaintiffs’ case was not legally sufficient or that the verdict was against the weight of credible evidence or inconsistent is bereft of merit.

A trial court’s discretionary power to set aside a jury verdict should be undertaken with considerable caution and only where the jury could not have reached the verdict on any fair interpretation of the evidence. As repeatedly held, a court must first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.
Here, there is ample evidence that, if believed, provided a valid line of reasoning that on various occasions, the acts or omissions of defendants’ staff were departures from good and accepted standards of medical practice, and that these acts or omissions were substantial factors in causing the present condition of the infant plaintiff. The jury was free to credit the testimony of one neonatal medicine expert and discredit the other. A jury is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. Indeed, a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion.

Fourth, defendants’ argument that the verdict is inconsistent because the jury decided that defendants’ staff failed to properly monitor blood gas and acid/base balance, but decided defendants’ staff did not fail to properly monitor the oxygen level, is also without merit.
Monitoring the oxygen level through the pulse oximeter was insufficient to determine the total health of the infant plaintiff. There is no inconsistency in the jury’s finding that blood oxygen was not improperly monitored but other characteristics of the infant plaintiff’s blood were ignored.

And fifth, with respect to the award, defendants correctly note that some of the jury’s award is speculative or excessive.

On the value of loss of future earnings of the infant plaintiff, the award was not based on any competent evidence or testimony and is speculative; the award for future pain and suffering and loss of services deviated materially from what would be reasonable compensation; and the cost of supplies and equipment should be reduced accordingly.

In conclusion, the motion is granted solely to the extent that a new trial is ordered on the amount of damages awarded for future pain and suffering unless plaintiffs serve and file a written stipulation to reduce the jury award of damages for future pain and suffering, damages for future lost earnings, damages for medical care, equipment and supplies, and damages for loss of services. The verdict rendered for pain and suffering to date and home/facility care remain undisturbed. Plaintiffs’ cross motion for an order directing judgment on the verdict is denied.
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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 woman of foreign descent was pregnant with twin boys. She gave birth at a public hospital owned and managed by the City of New York on October 25, 1981. The twins were born prematurely at seven months’ gestation only. One of the twins was brought to the newborn nursery of the public hospital where he stayed until he was discharged on December 23, 1981.
One month after the son’s birth, the boy’s left thigh swelled. He underwent x-ray and it was discovered that the thigh bone was fractured. The doctors at the public hospital repaired the fractured thigh bone. The doctors put a cast on the left thigh until it healed. The child recovered.

Nine years after the child was born, the mother brought a suit in medical malpractice against the public hospital. She claims that the negligence of the doctors who delivered and cared for her child in the nursery caused the fracture in her son’s left thigh which caused the child’s legs to grown unevenly: his left leg is shorter than the right leg and the child limps.

After filing the medical malpractice case, the woman asked for leave from the court to file a late notice of claim on the City of New York. She claims that she is a foreigner, not born in the United States; she has had little education and that she did not know that she can file a medical malpractice suit against the doctors who delivered and cared for her son at the public hospital.

The trial court denied the mother leave to serve a late notice of claim on the City of New York. The mother appealed this denial of the trial court to the Supreme Court of Kings County and the Supreme Court granted her leave to serve the late notice claim.

The City of New York and the public hospital appealed to the Supreme Court of the State of New York. The only question here is whether or not the woman should be allowed to serve a late notice of claim on the City of New York and pursue a medical malpractice suit against the public hospital and against the doctors who delivered and cared for her baby during his hospitalization after his premature birth.

The Court resolved to reverse the Supreme Court of Kings County and deny the woman’s motion for leave to file a late notice of claim.

The Court held that it is possible for infancy to toll the period within which a notice of claim may be filed; but the Court ruled that the Supreme Court of Kings County abused its discretion in granting the woman leave to file a late notice of claim. The Court held that the woman did not plead a reasonable excuse for her delay in filing the late notice of claim.

The Court held that being born outside of the United States and having little education is not a plausible excuse for the delay. More importantly, the woman failed to state that the delay will not prejudice the public corporation as it already had notice of the facts constituting the claim.
The Court found the complaint to be vague as to the averments of facts. Her complaint and her motion for leave to file a late notice of claim only contain conclusions and not facts.
The Court held that it is clear that the delay of filing the notice of claim is not because the plaintiff (the one suing) was the child; rather, the delay was caused by the mother’s lack of knowledge that she can bring such a suit for medical malpractice.

The Court also noted that the Westchester woman’s claims for medical malpractice are vaguely worded: it is not possible to determine if the woman is seeking recovery for ordinary negligence in the fracturing of the child’s leg or for the medical malpractice in the treatment of the fracture by the hospital staff. For this reason, the nature of the claim is vague even in the time and manner in which the claim arose.

Because of the vagueness of the claims, it is impossible to presume that the City of New York had notice of the claim from its possession of the child’s medical records. It would be highly prejudicial to the City of New York to make it defend itself against the vague claim after nine years had passed. It would be difficult if not impossible for the City to investigate the truthfulness of the claim.
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This is an action sought by the defendants for the court to dismiss the complaint based on a summary judgment. The infant plaintiff, represented by her mother and natural guardian, sought to recover damages for personal injuries allegedly sustained by the infant plaintiff due to lead poisoning, negligence and medical malpractice committed by the defendants. The court dismissed the complaint and ruled in favor of the defendants.

After her birth, the infant plaintiff resided in an apartment with a peeling paint condition with her mother and father. The infant plaintiff was seen at the hospital emergency room of one of the defendants for asthma and lead blood testing. The result of the lead blood testing showed that it is within the normal range. Subsequently, the infant plaintiff went to another hospital, one of the defendants in this case, for the treatment of skin problems. The mother was directed to bring the infant plaintiff back to see physician for a well-child visit in one month. On October 17, 2002, at which time the infant plaintiff was three years, two months, of age, she underwent a complete examination as well as a development assessment, which indicated that she had met her three-year-old milestones appropriately. The infant plaintiff’s blood was drawn for lead testing at this visit, and the result showed a blood lead level within the normal range. On 2003, when the infant plaintiff was in Connecticut, it was diagnosed that her lead blood content elevated to 24 ug/dL, i.e. above the normal range. Thereafter, the infant plaintiff together with her parents returned to their apartment and had a regular check up with the defendant’s hospital again.

On September 27, 2003, the New York City Department of Health inspected the apartment where the infant plaintiff lives and found lead paint hazards on five painted surfaces.

This prompted the plaintiff to institute an action alleging injury claiming that had the defendant performed a risk assessment on October 17, 2002, she would have learned t of the high risk for lead poisoning because of the deteriorating and peeling paint in her apartment. She opined that such failure to perform a risk assessment constituted a departure from good and accepted medical practice, and a departure from the standard of medical care. The mother stated that she was never provided with information concerning the actions which she could take to prevent the infant plaintiff from becoming lead poisoned, and that she has now learned that this information is called anticipatory guidance for lead poisoning. She states that if she had been given anticipatory guidance for birth injury, she would have known not to vacuum the floors in trying to get rid of the paint chips and paint dust, but would have wet mopped all surfaces instead.

The court ruled that a summary judgment dismissing the infant plaintiff’s complaint as against the defendant is warranted.

According to the Suffolk court, the fact that the defendant, in providing anticipatory guidance, did not specifically discuss how the mother should clean her apartment, cannot be a basis upon which to predicate liability under the birth injury accident. At the October 17, 2002 visit to the defendant, the infant plaintiff did not test positive for lead poisoning, and, thus, did not indicate the need for this specific instruction.

The court held that the 1991 CDC Statement (Statement by the Federal Centers for Disease Control) with regard to mopping is only listed as an example of a simple way parents can reduce their children’s exposure to lead. It does not prohibit the use of vacuum cleaners, and, in fact, instructs that vacuum cleaners with agitators remove dust from rugs more effectively than vacuum cleaners with suction only. The 1991 CDC Statement is not meant to create an enormous burden on primary pediatric health care providers. In addition, 10 NYCRR 67-1.2 (a) (7) simply “requires reasonable efforts to ensure the provision of risk reduction education.”
The court reiterated that the 1991 CDC Statement provides that the urgency and type of follow-up depends on the screening blood lead test result. Here, at the time of the infant plaintiff’s first routine well-child on October 17, 2002, the infant plaintiff had previously had two negative lead test results. On that October 17, 2002 visit, the infant plaintiff was given anticipatory guidance and was screened and tested for lead poisoning.
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A woman was pregnant at thirty-one weeks in August 2001. She was rushed to the emergency room because of premature labor. The doctors found that she was suffering from hypoglycemia or low blood sugar at 26 mg/dl. Her blood sugar levels normalized so she was discharged two days later.

A month later, the woman was rushed to the same emergency room because she was having seizures. She has had a history of seizure since childhood. A month later, the woman gave birth to a baby boy whose new born health rating was excellent. Forty minutes after he was delivered, the baby started trembling and shivering. He was transferred to the intensive care unit where his blood sugar level was discovered to be only 20 mg/dl. A little while later, his blood sugar level was measured at 5 mg/dl. He was given intravenous glucose until his blood sugar levels reached a more normal 71 mg/dl. He was discharged from the hospital two days after he was born.

A year later, the baby was referred back to the same hospital where he was born because he had developmental delays. An MRI was made of his brain and it was discovered that he had lost white matter in his brain. This suggested to the doctor that the baby had an episode where he suffered a brain injury due to lack of oxygen. He was diagnosed with cerebral palsy.
His mother filed a suit in damages against the hospital where her baby was born. She claims that her son’s brain injury. She claims that the doctor failed to diagnose her hypoglycemia as well as her son’s. According to the mother, it is this hypoglycemia that caused her son’s cerebral palsy.

The hospital moved for summary judgment in NYC asking that the complaint be dismissed. The hospital also asked that a hearing be held to determine if the brain injury of the child was caused be the mother’s hypoglycemic episode when she was 31 weeks old. The hospital produced an expert who testified that the hypoglycemia experienced by the baby soon after he was born was not the cause of the brain injury.

The Westchester mother also submitted expert testimony that tended to prove that the nature and cause of her son’s brain injury and cerebral palsy was caused by hypoglycemia. The expert testified that in a baby, hypoglycemia causes brain injury. She also testified that some babies are more vulnerable to brain injury due to hypoglycemia than others. Hypoglycemia is toxic and perilous to a baby as there are no safe levels of hypoglycemia.

The expert for the mother presented articles from medical journals that spoke of infants who were studied who also suffered brain injury because of low blood sugar levels of 32 mg/dl. Another article was presented that spoke of thirty-five infants who had tremors around the time of their birth who were later tested to have low blood sugar levels and also developed brain injuries as evidenced by brain MRIs which were similar to the baby here. Much later, six of those thirty-five babies were diagnosed to have cerebral palsy.

The trial court granted the hospital’s motion for summary judgment. The trial court concluded that the expert opinion presented by the mother was not admissible. The trial court held that the expert witness did not prove that the scientific and medical community generally accepts that hypoglycemia which lasted for forty minutes can cause brain injury. The trial court accepted the hospital’s expert witness testimony which asserted that the thirty-five infants in the article presented by the expert witness for the mother had other conditions that would cause low blood oxygen in the brain and did not just suffer from low blood sugar like the baby in this case.

On appeal to the Court, the only question is whether or not the trial court abused its discretion when it found that the expert testimony presented by the mother failed to show that the scientific and medical community accepts that low blood sugar causes brain injury.
The Court held that the hearing to determine if the theory presented by the mother as to what caused her son’s brain injury is only good for proving if the theory is one that is generally accepted by the medical community.

The Court pointed out that none of the expert witnesses of the defendants ever contradicted the testimony of the mother’s expert witness that low blood sugar level in infants causes brain injury. The articles presented showed that this theory that low blood sugar causes brain injury is one that has been written about, experimented and observed in clinical practice by other medical professionals.

In this the plaintiff has raised material issues of fact that prevents the granting of a motion for summary judgment.
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