Brain Injury

Published on: June 22, 2012

On November 29, 1983, a pregnant woman and her husband arrived at Herkimer Memorial Hospital

by Stephen Bilkis

On November 29, 1983, a pregnant woman and her husband arrived at Herkimer Memorial Hospital to deliver their new baby into the world. After being admitted to the hospital, the husband and wife were placed in a delivery room. The obstetrician arrived and ordered pain medication and labor induction medication to speed labor. All of the staff from the hospital, left the room at that time. Only the husband and wife were in the room when the baby began to come. The inexperienced husband tried to help his wife safely deliver their baby, but he did not know what needed to be done. Traumatized, he watched as his infant son was delivered into the world with the umbilical cord wrapped around his neck. The baby’s airway was cut off. He struggled to breathe without success. The father watched helplessly as his son suffered from lack of oxygen. When at last, the staff responded to his cries for help, the child was severely injured.

The little baby boy died of his birth injury the next day. The parents filed a medical malpractice suit to recover damages for wrongful death of their baby, by means of negligence and malpractice. The father also made a motion to the court for the court to grant him damages because of his severe mental and emotional distress from watching his baby son suffer.

The court contends that in order for a person to recover damages based on the death of another person, they must be able to show that there was an unreasonable risk of bodily injury or death to themselves. They must be able to show that they were within an area called the zone of danger. Since in this case, the father was not under the care of the doctors who were delivering the baby, and he was not injured in any fashion, he cannot show that there is any justification to the recovery of the damages. He admits that he was never in any danger and that he did not suffer any physical injuries during the entire process. The original trial court found that the father was not eligible to apply for damages under this statute. The Supreme Court agreed that the father had no right to receive monetary compensation for mental pain and anguish over watching his child suffer fatal injury in the delivery room. The third cause of action in regards to the defendant’s motion for summary judgment releasing them from liability in this action is granted and the father’s motion for monetary compensation must be dismissed.

Published on: June 18, 2012

On September 10, 1993, a mother brought her 56 day old baby girl to the emergency room at Saint

by Stephen Bilkis

On September 10, 1993, a mother brought her 56 day old baby girl to the emergency room at Saint Luke’s Hospital in New York for treatment. The hospital staff were horrified at what they discovered. The small baby had several broken bones. She had a spinal fracture of her of her right arm that was evidence of a severe twisting action with enough force to break both bones. She had eight broken ribs. Some of the ribs showed evidence that they had begun to heal. The staff determined that those breaks were about two weeks old. Some of the broken ribs were fresh, within days before being admitted to the hospital. Both of the infant’s large leg bones, the femurs were broken. Both of the small leg bones, the tibias were broken. Both of the baby’s ankles were broken. The baby had a fractured wrist, and her left arm was fractured at the ulna. The hospital staff notified social services and the police department.

The police officers and social service workers arrived at the hospital. The social services workers took custody of the infant and eventually placed her in kinship foster care. The police officers arrested both of the parents for child abuse and neglect. When questioned about what happened, the father advised the officers that the day before the mother took the baby to the hospital, he had been giving her a bath. She had begun to slip under the water and he grabbed her by the arm to prevent her from drowning. The mother stated that the day before she took the baby to the hospital, the father had approached her and told her that he was afraid that he had injured her while giving her a bath. Neither of the parents took the baby to the hospital to be checked out at that time. The mother waited until the following day to take the baby into the hospital to be checked out.

The parents contend that the child was not injured to the extent that the hospital records state. They claimed that they had two well-baby checkups performed at their doctor’s office which did not detect any broken bones or any other injuries. They claim that the hospital personnel are mistaken. They further made a motion to the court to have the criminal charges against them transferred over to family court for handling. Family court has the ability to have any case transferred to it that it feels would best be served by being handled in a civil fashion rather than a criminal one. The standards that are evaluated to determine if the case would best be served by transfer to family court are straightforward. The entire purpose of the family court is to protect and provide for the children. The court recognizes that some cases are not best served by being transferred to family court.

Published on: June 14, 2012

In February of 2006, an elderly woman was a resident of the Jewish Home and Infirmary of Rochester

by Stephen Bilkis

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.

Published on: June 8, 2012

A woman was pregnant for the third time

by Stephen Bilkis

A woman was pregnant for the third time. For her first two pregnancies, she was given prenatal care by the doctors of a medical clinic. She delivered her first two babies through vaginal delivery and at both times, an episiotomy was performed. An episiotomy is a cut made between the vagina and the anus to allow the baby’s head and shoulders to pass easily out of the birth canal. The surgical cut is made to prevent vaginal tearing which is more difficult to repair.

The woman’s third pregnancy progressed uneventfully. As she was in active labor, the doctor who attended her left the delivery room because his shift for the day was over. Another doctor from the same medical clinic attended her delivery. As the woman was being delivered of her child on July 22, 1997 her vagina suffered a laceration. The doctor who attended her surgically repaired the laceration.

After the delivery of her third child, the woman began experiencing a sharp throbbing pain in her pelvic area. She was able to perform her usual daily tasks and activities but she began using pain relievers. She also began experiencing painful sexual intercourse with her husband but the pain eventually became less severe.

Published on: June 6, 2012

A 34 year old woman was pregnant

by Stephen Bilkis

A 34 year old woman was pregnant. This was her third pregnancy, the first two had been terminated and this is the first time that she wanted to bring the pregnancy to term. She her last menstrual period in December 1999 and her estimated date of delivery was September 7, 2000.

The woman did not have an abnormal PAP smear; she has never had any surgery on her cervix but she did have a heart murmur, she has had two shoulder surgeries and two abortions and she has a uterine fibroid which caused heavy bleeding and cramping at least one year before becoming pregnant.

The reason why she came to the obstetrician was because she wanted to get pregnant but was having difficulty getting pregnant. The doctor saw a fibroid and told her that her fallopian tubes were occluded. The doctor advised her to have her tubes “blown out.”

Published on: May 14, 2012

A legal action was filed by a mother and his son

by Stephen Bilkis

A legal action was filed by a mother and his son who wants to recover damages for medical malpractice. The complainant’s demands an appeal from the order of the Supreme Court granting his opponent’s request of dismissing their complaint.

The incident started when the mother began receiving a prenatal care at the hospital which is owned and operated by the opponent on the legal matter. At 31 weeks of gestation, the mother was admitted to the said hospital in Queens for signs of preterm labor. During the admission, the mother’s blood glucose level was measured at 26 mg/dL, an abnormally low level, but was consequently measured at a normal level. The mother was then discharged after two days. At 34 weeks of gestation, the mother experienced a grand mal seizure and was brought again to the said institution by the emergency medical services personnel. However, after the same sort of assessment the mother was discharged. According to the past medical history of the mother, she had seizures during her childhood.

A month after the said seizure, the mother gave birth to a baby boy through a normal delivery. The baby boy got an excellent score from the test given to newborns and initially appeared normal. However, when the baby boy reached his 40 minutes in life, the baby began experiencing tremors and was admitted to the neonatal intensive care unit.

Published on: May 9, 2012

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

by Stephen Bilkis

A mother on behalf of her baby girl and the baby’s twin, who was dead at birth, filed a complaint against the hospital and three other individuals. The opponent, however, sought an order dismissing the first, second, fifth and sixth reason’s for action asserted in the complaint on the grounds that they failed to state reasons for the action which relief could be granted. The opponent contended that the four (4) reasons for the action were dismissible because no reason for action exists either on behalf of the baby’s twin for injuries and death occurring in the uterus or on behalf of the mother for mental or emotional distress or from loss of society. At the same time, the mother made a motion seeking leave to revise the complaint as to the second and sixth reasons for the action and to add a new one identified as a seventh reason for the action.

The revision proposed for the second reason for the action sought to clarify the allegation that the lack of informed consent to the mother caused serious damages and injuries to her infantand spoke in terms of a reasonably prudent person rather than the mother. The revision proposed for the sixth reason of the action eliminated the mother’s claim for the loss of society, companionship and consortium of the deceased infant and plainly stated that the mother’s claim for the mental distress includes emotional upset in attending the dead infant. The seventh reason for the action proposed that the opponents failed to inform the mother of her condition and the deceased infant’s condition as well as the dangers of the treatment performed and the alternate treatment available. Further, that the lack of informed consent was a proximate reason of the injury for which recovery is sought. The reason for the action would further assert that the mother would not have undergone the treatment if she had been fully informed. The seventh cause of action would then allege that due to the death of the infant, the mother had been rendered sick and continued to suffer great physical pain and mental distress requiring medical care. As the mother opposes the opponent’s motion, she pointed to the tremendous evolution in the concept of tortious conduct within the state law as warranting denial of the dismissal motion. Subsequently, the court in Manhattan ordered that the mother’s motion to revise the complaint is accordingly denied.

The mother moves for an order granting re-argument and renewal of the order. She claims that her request for permission to revise the complaint and include a reason for the action based on lack of informed consent and to re-plead the sixth reason and include the emotional pain and distress in attending the dead infant should be granted.

Published on: May 6, 2012

On September of 1974, a woman (1st plaintiff-wife), 37 years of age, conceived a child.

by Stephen Bilkis

In September of 1974, a woman (1st plaintiff-wife), 37 years of age, conceived a child. After the woman and her husband learned of the pregnancy in October, they engaged the services of defendants, specialists in the field of obstetrics and gynecology. Thereafter, from approximately the tenth week of pregnancy until the birthof their child, the pregnant woman remained under defendants’ exclusive care.

On 10 May 1975, the woman gave birth to a retarded and brain-damaged infant who suffers, and will continue to suffer for the remainder of her life, from Down’s Syndrome, commonly known as mongolism.

The plaintiffs claim that throughout the period during which the 1st plaintiff-wife was under the care of the defendants, plaintiffs were never advised by the defendants of – the increased risk of Down’s Syndrome in children born to women over 35 years of age and the availability of an amniocentesis test to determine whether the fetus carried by the 1st plaintiff-wife would be born afflicted with Down’s Syndrome.

Published on: May 3, 2012

A legal action was filed by a mother to recover damages

by Stephen Bilkis

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.

Published on: May 1, 2012

A mother and her baby have pleaded a separate cause of action.

by Stephen Bilkis

A mother and her baby have pleaded a separate cause of action. The accused hospital moves to dismiss the infant’s cause of action, brought by her maternal grandfather as Guardian appointed by an order of the Court.

It is claimed that the hospital’s negligence, failure to provide adequate care and supervision, failure to protect and safeguard her health and physical body from harm from others while the mother was in the custody of the hospital resulted in the infant’s conception and being born out of wedlock to a mentally deficient mother. Furthermore, it is said that the infant was deprived of property rights, normal childhood, home life, proper parental care, support and rearing has caused her to bear the stigma of illegitimacy and has otherwise been greatly injured and such injuries are represented in plead sum of $100,000.

The hospital does not assail the mother’s cause of action wherein her Guardian seeks $50,000 for the claimed carnal assault of the mother while a patient at the said hospital, resulting in the pregnancy and birth allegedly due to the State Hospital’s insufficient care and supervision of said mentally ill patient. The legal posture is not inconsistent with the instant motion. In effect, the State Hospital says that if proven, there is a recognized cause of action in favor of the mother but regardless of proof the infant has no cause of action such as pleaded. The hospital emphasizes that the claimed cause of action of the infant has never been successfully pleaded in any other case although there have been trials of a mother’s cause of action.