Articles Posted in Staten Island

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The Facts:

A medical malpractice action to recover damages for the birth injury sustained by an infant was commenced by plaintiff, the mother of the injured infant, against, among others, the defendant Hospital Center. Plaintiff alleges that, inter alia, as a result of the negligence, carelessness, and recklessness of defendants, plaintiff’s infant was born prematurely and thereby suffered severe and permanent brain injury, including cerebral palsy, spastic quadriplegia, gastroesophageal reflux disease, and cognitive and speech impairments.
In December 2004, before commencing the action, plaintiff’s attorney requested the Hospital to provide him with the complete medical file for both plaintiff and her infant from July 1997 to December 2004. In July 2006, after the commencement of the action, plaintiff’s attorney specifically requested that the Queens Hospital provide him with, among other things, the fetal monitoring strips for 19 July 1997. On 9 November 2006, after plaintiff’s counsel made several attempts to secure the Hospital’s compliance with his request, the Hospital informed plaintiff’s attorney that the fetal monitoring strips he had requested no longer existed. Plaintiff now moved to strike the Hospital’s answer due to spoliation of evidence.

On 22 October 2008, the Supreme Court, Westchester County, granted plaintiff’s motion to strike its answer for spoliation of evidence. Defendants appeal from the said order.

The Ruling:

As provided for under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party of the ability to prove its claim, the responsible party may be sanctioned by the striking of its pleading. However, a less severe sanction is appropriate where the absence of the missing evidence does not deprive the moving party of the ability to establish his or her case. The determination of a sanction for spoliation is within the broad discretion of the court.

Here, The Staten Island plaintiff did not clearly establish that the Hospital negligently lost or intentionally destroyed the subject fetal heart monitoring data for 19 July 1997, the infant’s date of birth. The record fails to rule out the possibility that the central monitoring computer system utilized by the Hospital in its labor and delivery unit to electronically store fetal heart data onto an optical disk was properly operating, or the possibility that it malfunctioned on 19 July 1997, due to no fault of any of the parties involved in this action, and resulting in no fetal heart data being recorded or stored for that date. Nor did the plaintiff establish that the unavailability of the fetal heart monitoring data fatally compromised her ability to prosecute the instant action.
Thus, since plaintiff failed to clearly establish that the Hospital negligently lost or intentionally destroyed the material, the plaintiff is entitled only to the sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data, as against the Hospital. Moreover, plaintiff failed to show that the alleged spoliation left her prejudicially bereft of the means to prosecute the action against the Hospital.

In sum, the Supreme Court improvidently exercised its discretion in striking the Hospital’s answer and, instead, should have imposed the lesser sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data. Accordingly, the appeal by the defendants is dismissed as abandoned; the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting the plaintiff’s motion to strike the answer of defendant Hospital Center on the ground of spoliation of evidence, and substituting therefor a provision granting plaintiff’s motion to the extent of directing that an adverse inference charge be given at trial with respect to the fetal monitoring data for 19 July 1997, as against defendant Hospital Center, and otherwise denying the motion; as so modified, the order is affirmed insofar as appealed from by defendant Hospital Center, without costs or disbursements.
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The common issue arising in all of the following cases concerns the constitutionality of the new article as it affects the presumptively mandated removal of custody of children from a parent who considered being addicted to narcotics.

In one case in Queens involving an addiction issue, a mother indicated in the records of the hospital that she had injected 10 bags of heroin daily into her blood stream for six years and that she had administered a dose to herself four hours before she delivered her baby. The attending doctor testified that her baby was born normally, without apparent symptoms or birth injury.

Evidently 24 hours after birth, the baby began to show the unmistakable narcotic withdrawal symptoms consisting of pre-convulsive tremors, hyperactivity, incessant crying, and ravenousness with alternating vomiting. Illnesses with partially similar symptoms were ruled out. Sedatives, dark and quiet environment were required for seven days before the child became physically well. Without careful therapy, the child might have suffered convulsions or even death. To give rise to such symptoms, the mother must have been regularly using large quantities of heroin for considerable time before her confinement. In addition, the placenta permits ready transfer of heroin from mother to fetus. If the mother injected heroin not habitually but only shortly before child’s birth, massive doses may have killed her and the new-born child or the baby would have been sedated instead of hyperactive and suffering withdrawal. Only high tolerance for both the mother and baby would cause the medically observed course of events found.

In another case, in Staten Island, the evidence was most instructive of all as to the dangers encountered by babies born having withdrawal symptoms. The baby had morbid tremors together with symptoms of hyperactivity about two hours after birth. The mother of the baby had her last heroin injection six to eight hours before the symptoms appeared. After one day, the baby showed symptoms with excessive crying, compulsive thumb sucking, vomiting and diarrhea. The remedy for those conditions was administered for one week with little improvement. In this case, the baby did not improve for a week and consequently a sedative was prescribed, gradually controlling the symptoms about two weeks after birth. The baby required careful hospital treatment for five long weeks before release from the hospital. A diplomate in pediatrics gave in evidence that babies subject to heroin withdrawal symptoms at the time of birth are labeled as suffering from congenital morphinism or narcotic addiction in the new born. Such clear symptoms in the new born cannot occur unless the mother is a narcotic addict, that is, dependent on narcotic drugs and in imminent danger of such dependency, as defined in the law. The usual delivering mother is in danger of such dependency, or actually dependent, if she has been daily injecting heroin into her blood stream for at least two weeks prior to the birth of her child, in doses of six to twelve milligrams daily. No one but the wholesale pusher knows how strong the contents of the glassine envelopes may be, and so the symptoms must be the indicator.

In another case, attorneys of the child’s parent, seek to annul the new law for alleged constitutional defect. In the said case, narcotic addiction alone was established, without proof of medical harm to the children. Indeed in that case, the mother had been recently formally adjudged as narcotic addict under the law, in the Supreme Court, by her own formal admission and plea. She was actually committed by the Supreme Court for a residential confinement of three years, subject to parole and supervision by the narcotic addiction control commission.
The evidence revealed that her child was two years of age when the hearing and adjudication in the court took place and that the mother had been addicted for approximately six months. Thus no withdrawal symptoms or any physical transmission of heroin to her child could be proved.

Nevertheless, the mother was committed and totally unable to take personal care of her child by reason of the narcotic addiction commitment. Moreover, she testified that the child’s father was confined in jail for an unrelated offense, so that no parent was available nor was care made available by either parent or other responsible person.

Lastly, in the case of the three children, the allegations were held insufficient on their face to withstand a motion to dismiss. Child abuse was originally pleaded on the sold assertion that the mother is a user of drugs and she appears at such sessions under the influence of drugs. Leave was given to modify the allegation to add that the said parent is a narcotic addict or is in danger of becoming dependent on a narcotic drug and should therefore be considered a narcotic addict. At the next preliminary trial, the complainant did move to modify the petition by adding an allegation that the mother of said three minor children is a narcotic addict. The mother appeared in court unable to stand unaided and thoroughly under the influence of some toxic substance. The mother was remanded to a hospital for a few days for urinalysis and observation and treatment for detoxification. The hospital report can be used in evidence.
As before indicated, it would be a matter of affirmative defense for the parent to assert and prove that the children have been and will be well cared for by or through the efforts of the addicted parent. The brief of the mother already presents that issue by stating that children are healthy with good medical histories, and that none of the children have ever suffered from any infectious or detrimental condition to their health or safety caused by the commission or omission of the parent.

Since as counsel urges, the court must adopt a construction, to avoid raising serious doubt of constitutional defect, the parent will have the opportunity to make the defense asserted even if narcotic addiction may be proved.

Insofar as article claimed to affect the narcotic addict’s status as a parent or custodian of children, it should also be interpreted in light of the jurisdiction’s comprehensive program for the treatment and rehabilitation of addicts. The entire legislative scheme views the addict as still a person, although one with a serious and debilitating illness entitled to humane treatment and vested with all the rights and privileges of any other citizen. Consequently the adoption of a construction which would terminate the parental or custodial privilege of custody upon the sole showing of being adjudicated a narcotic addict despite countervailing showing of affirmative defense, would be both at odds with said prevailing policy towards addiction and would represent a retreat to the not so distant period when addiction led to punishment and was not viewed as an ailment necessitating medical attention.

Despite the vigorous parade of authority, it would appear that the legislature would have been more clearly entitled to denominate presumptive neglect than presumptive abuse, nevertheless should at this stage be upheld. The difference between a finding of abuse and one of neglect results in a difference between a presumption requiring removal of the child from the parent in the case of abuse and a presumption of abuse if there is addiction, as distinguished from a discretionary non-presumptive removal in the case of a finding of neglect only.
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A 41-year-old physician and mother of one went into labor after an uncomplicated pregnancy. When notified at the onset of labor, a specialist in obstetrics and gynecology who had delivered the woman’s first child directed the expectant parents to the Physicians’ Hospital.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The appealing opponents contest the sufficiency of the evidence not just as to some of the theories submitted to the jury but as to all the theories submitted to the jury.
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Infant plaintiff’s mother (herein “plaintiff-mother”) is a physician Board Certified in Internal Medicine. On 8 March 1999, plaintiff mother presented to New York University Village Women’s Health (“Women’s Health”) for prenatal care and was examined by a doctor (herein “doctor-one”). According to her deposition, plaintiff-mother was unaware that she had ever been exposed to herpes and reported to her obstetricians that she did not have herpes or diabetes. In fact, the NYU defendants claim that plaintiff-mother still denied that she had herpes to doctor-one on 27 April 2000, some seven months after the delivery. The NYU defendants claim that the prenatal care records and labor and delivery records reveal that herpetic vesicles or lesions were never observed during any of plaintiff-mother’s vaginal examinations throughout the pregnancy.

Plaintiff-mother remained under the care of doctor-one during the prenatal period. On 8 March 1999, in response to a blood sample report which revealed raised red blood cell antibodies which had the potential to destroy the fetus or newborn’s red blood cells, doctor-one referred plaintiff-mother to non-party doctor-two, a specialist in maternal-fetal medicine, for evaluation and monitoring. Doctor-two monitored plaintiff-mother’s blood antibodies through the pregnancy.

On 8 September 1999, plaintiff-mother was examined by doctor-one at Women’s Health. She was 50% effaced, her cervix was closed, and the gestational age was more than thirty-seven weeks. Plaintiff-mother consented to vaginal delivery by induction. She presented to New York University Medical Center (“NYUMC”) on 9 September 1999 at 5:08 p.m. for delivery with the assistance of Pitocin. A fetal heart rate monitor was placed and doctor-one ordered Pitocin to be infused at 7:25 p.m. After some 25 hours, plaintiff-mother’s membranes were artificially ruptured at 9:00 p.m. on 10 September 1999. Doctor-one examined the patient for the last time at approximately 5:56 p.m. on 11 September 1999, some 48 hours after plaintiff-mother presented to NYUMC. From this point on, doctor-three, who was covering doctor-one’s patients, took over the care of plaintiff-mother. Approximately 12 hours later, at 5:30 a.m. on 11 September 1999, the infant-plaintiff was delivered by doctor-three. A vacuum extraction was performed, and forceps were applied to complete the delivery. A pediatrician was present at the time of delivery and noted Apgar scores of eight at one minute and eight at five minutes. The infant was transferred to the well-baby nursery, where he was noted to have two “skin tears”; one on the left side of the face and one on the right neck. On 13 September 1999, infant-plaintiff was discharged home and skin lesions appeared intermittently in September of 1999.

Doctor-four and doctor-five are pediatricians associated with Pediatric Associates of NYC (“Pediatric Associates”). The infant first was seen at the Queens office of Pediatric Associates on 19 September 1999 by doctor-five. This is the only time doctor-five saw the infant, who was brought in before his first scheduled appointment, on a Saturday, due to a skin condition. Doctor-five testified that the lesion looked like a bacterial pustulosis or impetigo lesion, which is also bacterial. He prescribed Keflex and Bactroban, and took a culture. Doctor-five claims that since Keflex and Bactroban are highly effective against a staph infection, which is, as it turned out, what the infant had, then his care and treatment were appropriate. He also testified that he could not perform a culture for herpes in his office as that requires special training which he did not have. Since the infant was to be a patient of the Brooklyn office of Pediatric Associates, doctor-five never saw the infant again.

On 22 September 1999, doctor-four first saw the infant at the Brooklyn office of Pediatric Associates. She noted that the infant had developed 3 pustules with straw colored fluid 3-4 days before this visit, which doctor-five had treated with Keflex and Bactroban. She further noted that the infant’s mother had no history of oral herpes infections or sexually transmitted diseases. The infant presented with two new pinpoint lesions on his neck, and at that time there was no growth of the cultures up to that date and the cultures were being held for fungus.

Doctor-four consulted by telephone with doctor-six, a pediatric dermatologist, describing what she observed on the infant. According to doctor-four, doctor-six did not seem concerned and told her to continue the Keflex and Bactroban and to add Nizoral cream; that it appeared to be a fungul skin infection, and thought that the lesions could have been caused by the forceps used during delivery. Doctor-four’s impression was that the pustules could be staph aureus, Candida, staph epidermidis or epidermolysis bullosa. She continued the Keflex (this was day 4 of the 10 day course of Keflex prescribed by doctor-five), and prescribed Nizoral cream and Bactroban 3 times per day. If the lesions progressed, the mother was to return to the office and doctor-four noted that she would send the baby to a pediatric dermatologist. Doctor-fournext saw the infant on 23 September 1999. She observed no new lesions, and noted three honey crusted lesions on the right neck and three on the chest. Doctor-four’s impression was questionable impetigo. She instructed the mother to continue the Keflex, Bactroban and Nizoral and to call if there were any new lesions.

Meanwhile, the results of the culture taken by doctor-five were stated in a report dated 30 September 1999, and revealed staphylococcus aureus.

On 7 October 1999, doctor-four again saw the infant who was fussy and was seen due to colic. On 14 October 1999, the baby was seen again by doctor-four. Plaintiff-mother, had observed intermittent anisocoria (unequal pupil size) that morning. Doctor-four referred the infant to a pediatric ophthalmologist, doctor-seven, to be seen that same day, and to the pediatric dermatologist, doctor-six, who was to see the infant the next day due to questionable impetigo. Doctor-four from Staten Island noted the mother reported that the skin lesion recurred three days ago and she had been using Nizoral and Bactoban with results. On exam, there was intermittent anisocoria of the right eye and the right pupil was equal and reactive to light. There was a honey crusted lesion on the right neck and a dry lesion on the right chest.

Doctor-six’s records indicate that the plaintiff mother did not bring the infant in until 18 October 1999. He cultured the lesions and they were negative. He did not think they were herpes. Blood tests which had been performed on the mother and infant revealed that the infant-plaintiff and the mother were positive for the antibody for HS V-2, in reports dated October 19 for the mother and October 22 for the infant.

Doctor-four testified that she consulted with doctor-six after he saw the infant and mother on 18 October 1999; that she had wanted them to see doctor-six on 15 October; that she received a report from a doctor-eight indicating that he saw the infant on 4 November 1999 for congenital/perinatal herpes infection.

Subsequently, a medical malpractice action ensued in which plaintiffs seek damages for injuries allegedly sustained by the infant plaintiff at his birth on11 September 1999 due to the alleged malpractice of the defendants. Plaintiffs assert, inter alia, that defendants failed to properly examine, diagnose and medicate plaintiffs; failed to treat the infant in utero and his mother prenatally; failed to properly evaluate the plaintiff-mother’s pelvic anatomy; failed to properly diagnose and treat the plaintiff-mother’s herpes and herpatic condition; failed to treat the pregnancy as high risk; failed to perform and interpret sonograms; improperly recognized the presence of and improperly treated the complications of delivery; negligently and improperly attemptec a vacuum extraction delivery; failed to timely and properly perform a vacuum extraction; failed to perform a cesarean section once the vacuum extraction failed; improperly performed a forceps delivery, and failed to use the forceps in a proper manner, negligently cutting the infant with the forceps; and created a portal of entry of herpes to the infant by the improper use of forceps during delivery, thereby resulting in the infant-plaintiff contracting herpes simplex virus, Type II (“HSV-2”).

The defendants, doctor-four, doctor-five and Pediatric Associates of NYC (“the Pediatric defendants”), move for an order granting summary judgment and dismissing plaintiffs’ complaint on the basis that no triable issues of fact exist.

By separate motion, defendants doctor-one, doctor-three, New York University Ob/Gyn Associates, and NYU Hospitals Center, s/h/a “New York University Medical Center” (“the NYU defendants”) move for the same relief.

Plaintiffs cross-move for an order providing that if any defendant obtains summary judgment and dismissal of plaintiffs’ claims against it, then any remaining defendant should be precluded from obtaining, or should be deemed to have waived or forfeited, the limited liability benefits of CPLR Article 16 in relation to the acts or omissions of said defendant who is granted summary judgment and dismissal of plaintiffs’ claims against it; and then such should become the law of the case as to any remaining defendant so as to preclude the application of CPLR Article 16 concerning the acts or omissions of said defendant who is granted summary judgment and dismissal of plaintiffs’ claims against it.

The Ruling:

Under the rules, summary judgment may be granted only when it is clear that no triable issues of fact exist. The province of a court on a motion for summary judgment is issue finding rather than issue determination. The party moving for summary judgment bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law. Once such a showing has been established, the burden is shifted to the opposing party to come forward with proof in evidentiary form to show the existence of genuine triable issues of fact. General conclusory statements and expressions of hope are insufficient to defeat the motion. On such a motion, the court is not to determine credibility, but whether a factual issue exists.

It is well established that for a plaintiff to establish a cause of action sounding in negligence, he must meet the initial burden of showing: the existence of a duty flowing from defendant to plaintiff; a breach of this duty; a reasonably close causal connection between the contact and the resulting injury; and actual loss, harm or damage.

It is equally well established that in determining whether a breach of duty has occurred, it is necessary to consider whether the resulting injury was a reasonably foreseeable consequence of the defendant’s conduct. When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiff’s burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fart regarding whether defendant’s conduct proximately caused plaintiff’s injuries.

On the NYU Defendants:

The court finds that plaintiffs experts statements as to departures as to the NYU defendants amount to nothing more than speculation.

Here, the expert states that a cesarean should have been performed because the mother had HPV and genital warts in 1985. The expert states that these are sexually transmitted, so doctor-one knew that plaintiff-mother had been exposed to a sexually transmitted disease. The expert continues that HPV can cause pharyngeal condylomata in the baby and thereby possibly obstruct the pharynx which is life threatening. Doctor-one should have notified plaintiff-mother of this risk to the baby, and of the fact that this risk would be substantially decreased if a cesarean section was performed. The expert also states that as of 5:05 p.m. on10 September 1999, a cesarean should have been performed, since continued labor exposed the mother and fetus to danger from maternal exhaustion, uterine abruption due to scar separation, fetal distress, fetal hypoxia, and uterine abruption due to scar separation. In effect, plaintiff’s expert is claiming the single departure of failure to perform a cesarean section as to the NYU defendants. While plaintiffs claim that the infant contracted HSV as a result of the vaginal delivery and the trauma sustained by the use of forceps, plaintiffs fail to address the issue of proximate cause, and more specifically, foreseeability. The list of injuries in the preceding paragraph which the expert opines the infant could have suffered from a vaginal, rather than cesarean, delivery, were not in fact suffered by the infant. On the contrary, the birth injury (birth injury accident) which is at issue here, the contracting of HSV is not listed as a foreseeable risk of vaginal delivery to a reasonable degree of medical certainty. The NYU defendants were presented with no basis to believe that there was this risk. No herpetic vesicles or lesions were ever observed in plaintiff-mother during the prenatal period, and she affirmatively reported that she did not have herpes and was unaware that she had ever been exposed to herpes, even to a point seven months after the birth of the infant plaintiff.
By reason of the aforesaid failure to establish that the risk of being infected with HSV was foreseeable as to the infant plaintiff, the motion by doctor-one, doctor-three and New York University Ob/Gyn Associates for summary judgment is granted.

Moreover, plaintiff did not point to any departure by NYUMC staff. Plaintiffs’ allegations were directed at doctor-one and doctor-three, who were, according to the evidence, private attending physicians and not employees of NYUMC in 1999. Plaintiffs’ expert in pediatrics addresses only those actions by the Pediatric defendants, who are not NYUMC staff, and whose course of treatment occurred after the infant plaintiff was discharged from NYUMC.

More importantly, plaintiffs’ claims of negligent credentialing which are contained in the Bill of Particulars were addressed by the NYU defendants in an affidavit presented, and plaintiffs have not come forward with evidentiary proof of any kind to rebut the statements therein that proper procedures were employed by NYUMC in the credentialing of physicians. Thus, such claim is dismissed, and summary judgment is granted to NYUMC
On the Pediatric Defendants:

The court finds that issues of fact exist as to whether defendants doctor-five, doctor-four and Pediatric Associates deviated from accepted standards of medical practice which preclude the granting of summary judgment.

Here, unlike the situation presented with the NYU defendants, plaintiffs’ pediatric expert clearly sets forth departures and deviations as to the correctness of these defendants’ treatment and diagnosis of the infant plaintiff, as well as the timeliness of their actions and referrals to appropriate specialists, which plaintiffs’ expert opines permitted the HSV infection to remain undiagnosed for several weeks and to become less amenable to treatment.
Thus, the court denies the motion.

On plaintiff’s Cross-Motion:

Here, plaintiffs cite a case, in support of their motion, where summary judgment has been granted to NYUMC and constitutes the law of the case. The court finds such ruling highly persuasive. Thus, applying the principle set forth therein precludes the remaining defendants from attempting to prove the negligence of the dismissed defendants to reduce their own Article 16 proportional liability.

In the cited case, plaintiff and co-defendants failed to challenge the sufficiency of the movant’s showing and inasmuch as a motion for summary judgment is the functional equivalent of a trial and the remaining defendants failed to satisfy the evidentiary burden that shifted upon the movant’s prima facie showing, the opportunity to limit liability under Article 16 with respect to the movant’s acts or omissions has been forfeited. The same applies, of course, where a defendant opposed the motion and lost. Thus, the court finds that the remaining defendants have had a full and fair opportunity to address each moving party’s liability in this case. Accordingly, the cross-motion is granted.

In sum, the motion by defendants doctor-one, doctor-three, New York University Ob/Gyn Associates and New York University Medical Center for summary judgment is granted and the plaintiffs’ complaint is dismissed as to these defendants; the motion for summary judgment by defendants doctor-four, doctor-five and Pediatric Associates is denied and the complaint is severed as to these defendants and shall continue; the cross-motion by plaintiffs for an Article 16 relief to preclude the remaining defendants doctor-four, doctor-five and Pediatric Associates herein from asserting CPLR Article 16 defenses is granted.
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On June 16, 2003, the Administration for Children’s Services (“ACS”) filed an abuse petition against the respondent mother, and the respondent father, with regard to their infant childEdwin.

The petition was amended against both respondents, alleging that the infant child was also a severely abused child. The petition alleged that the infant suffered rib fractures and intracranial bleeding as result of the respondent mother repeatedly grabbing him by the torso, squeezing the infant’s ribcage and shaking him violently, and dropping him, beginning in March 2003 and extending over the course of approximately three months.

On June 25, 2003, the respondent mother pleaded guilty in assaulting her infant child. A Kings Injury Lawyer said that ACS filed a motion for summary judgment, affirmations and arguments in relation thereto, the Court found, by clear and convincing evidence, that the respondent mother abused and severely abused her infant, Edwin, pursuant to the Family Court Act and Social Services Law respectively.

On January 25, 2004, the respondent mother gave birth to the subject child, Makailia C. (hereinafter called the “subject child”). ACS filed a child protective proceeding, alleging that the respondent mother derivatively abused and severely abused the subject child, whereupon the subject child was remanded to the Commissioner of ACS and a warrant was issued for the respondent mother to produce subject child.

Thereafter, the respondent mother was involuntarily returned on the warrant, a Lawyer said that ACS gave her notice that it intended to prove that the subject child was a severely abused child, by clear and convincing evidence, and that such a finding could constitute a basis to her terminate parental rights pursuant to the Social Services Law.

Pursuant to ACS’s motion to terminate reasonable efforts, affirmations, an evidentiary hearing held thereupon, the Court entered a finding that no reasonable efforts were required to be made to return Edwin to respondent mother. The Court determined that reasonable efforts would not be in the best interests of Edwin, would not be likely to result in reunification with his mother in the foreseeable future and would be contrary to his health and safety. Moreover, the Court found, in light of Edwin’s age and the severity of his injuries sustained while in his mother’s care, in conjunction with the mother’s obvious parental deficiencies, the danger of any reunification efforts clearly outweighed any potential benefits.

In so finding, the Court found Edwin, at five months old, suffered rib fractures, shortness of breath, all requiring hospitalization and intensive medical care. His diagnosis ultimately included bilateral retinal hemorrhages, skull fracture, old rib fractures and traumatic subdural hematomas. He was intubated, placed on a respirator, and given a blood transfusion.

This Court further found that the respondent mother, who was only twenty-one years old, suffered from depression, a seizure disorder, poor parental judgment, and lacked insight into her parental deficiencies. According to her own admission in criminal court, she intended to injure Edwin, who was only months old and completely dependent upon her for his very survival. Despite having been engaged in various services since 2001, she caused serious physical injury to her infant in the spring of 2003. Further, she had failed thus far to follow through with appropriate and reasonable services, make any meaningful progress in her psychiatric treatment, and take her antidepressant and anticonvulsant medications regularly.
The issue in this case is whether derivative findings of abuse and severe abuse should be entered against the respondent mother with respect to the after born infant child, Makailia C, via summary judgment, because there is no genuine issue to be resolved at the trial.

The respondent argues that summary judgment should not be entered because the respondent’s conduct which established the abuse and severe abuse of Edwin was not sufficiently contemporaneous with the petition regarding the subject child, Makaila C. Respondent further argued that, seven months cannot be proximate enough in time to support a derivative finding.

In one case, the Court set-forth a three prong test to determine whether a finding of derivative abuse or neglect would be proper: (1) the offensive conduct proven as to one child was not remote in time; (2) the conduct was serious or involved a course of abusive or neglectful behavior; and (3) the conduct demonstrated a fundamental defect in respondent’s understanding of the duties and obligations of parenthood.
In view of the foregoing, the Court finds that the respondent mother’s previous abusive conduct towards her infant, Edwin, is so proximate in time to this derivative proceeding that a finding of abuse is warranted. The respondent’s abusive conduct, repeatedly violently shaking and dropping him over a three month period, ended a mere seven months before the subject child was born. Furthermore, the mother did not seek medical attention for Edwin despite knowing he was injured.

In addressing derivative findings it is not necessary for the petitioner to prove that the siblings who were not the direct targets are likely to suffer the same injury or even a substantially similar form of mistreatment as the target child. Rather, the petitioner’s burden is to show only proximity in time, after which showing the burden shifts to the respondent to show any circumstances that may differentiate the target child from the other children.

The mother’s criminal conviction and the Court’s prior findings establish a prima facie case of abuse. Under the Family Court Act which is followed in Queens and Staten Island, proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent.

In one case, the Court held that: “Such evidence, standing alone, does not necessarily constitute a prima facie case, but may, in appropriate circumstances, be sufficient to sustain a finding of abuse or neglect.” The determinative factor is “whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists.”

Based upon the proximity in time, the duration and nature of the mother’s conduct, and a fundamental defect in her understanding of her parental duties and obligations, the Court finds that the conditions which led to the severe abuse of Edwin still exist. Accordingly, the Court enters findings of derivative abuse of the subject child.

Hence, based upon the respondent mother’s criminal conviction for assaulting infant Edwin, and the Court’s prior findings, including the basis to terminate reasonable efforts to reunify Edwin with his mother, and the medical records of Edwin, the Court held that, as a matter of law, there exists no triable issue of fact, and accordingly, enters an order of summary judgment in favor of the petitioner.
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During the first months of 1998, petitioner and respondent began living together. On 28 August 1998, the parties were married in the State of New York. Both parties were aware of the fact that petitioner was born a woman but lived as a man since he was a teenager. On 8 June 1998, petitioner legally changed his name. Since the age of 15, petitioner adopted the hair style, clothing, demeanor and name of a man. Thereafter, petitioner received hormone treatments to effectuate a fully masculine appearance. Petitioner plans to undergo gender reassignment surgery in the future.

Meanwhile, respondent stated that despite knowing that petitioner was born a female, she agreed to marry petitioner. The couple filled out the marriage certificate together. Respondent claims that the first year of marriage was happy and that in the beginning of the second year, in 1999, petitioner became physically abusive.

After four years of marriage, respondent agreed to conceive a child through artificial insemination with petitioner, despite the alleged continued abuse. In 2001, the parties agreed that the mother would undergo artificial insemination and the parties selected a sperm donor whose characteristics and interests matched those of petitioner. The parties collaborated on, contributed to and supported the artificial insemination process. Petitioner signed the consent form for respondent to be inseminated. The procedure had to be repeated three times before it resulted in a pregnancy which concluded with the birth of the subject child on 13 June 2002. The parties submitted a birth certificate which reflected that petitioner was the father of the child and that respondent was the mother of the subject child. According to the parties, the child was born premature and had to remain in the hospital for over one month after his birth. In a letter dated 20 September 2007 written by a doctor, he described the subject child as a five-year old child born premature and asthmatic. The child has been diagnosed as having asthma but the parties disagree whether the condition is aggravated by the consumption of dairy products.

The subject child has been hospitalized in Queens and Staten Island for a while. It is undisputed that petitioner financially supported the family for approximately six months while respondent took a leave of absence from her employment to care for the infant. The medical and school records of the child reflect that petitioner is the father of the child. According to petitioner, respondent eventually returned to work; that respondent worked long hours and spent days away from the marital residence for her employment while petitioner would provide daily care for the child. Sometime after May of 2006, the parties became estranged. It is undisputed that respondent left the marital home in May of 2006 and left the child in the physical custody of petitioner. Although respondent failed to file a petition in a Family Court for a temporary order of protection, respondent alleged that she was forced to leave the residence due to the domestic violenceperpetrated by petitioner.

Petitioner alleged that respondent left the residence to move into the apartment of another man. On the contrary, respondent alleged that she left the marital residence on 3 August 2007 to escape the abuse and that petitioner picked up the child from the babysitter without her knowledge. Respondent never explained why she left the child with petitioner when she did not intend to return to the marital residence.

On 19 July 2007, petitioner filed a petition for custody.

On 6 August 2007, respondent filed a cross petition for custody. Respondent claims that it would be in the best interest of the child if custody was awarded to her; that petitioner committed acts of domestic violence against her while they lived together and that she feared for the safety of the child; that the petitioner was actually a woman and therefore the marriage was invalid. On the same day, respondent filed a family offense petition against petitioner alleging that he threatened her with a knife.

On 24 August 2007, the Kings County Family Court ordered that the child remain in the temporary custody of petitioner and directed that respondent be granted visitation every Sunday.

On 28 September 2007, respondent made an application seeking the transfer of temporary custody of the child since petitioner was actually a woman and the child was conceived by artificial insemination. The Family Court declined to hear argument on that application since a proceeding regarding the validity of a marriage could properly be determined only by the Supreme Court.

Thereafter, a court order of investigation was conducted by the Administration for Children’s Services (ACS). Respondent acknowledged to the Child Protective Services investigator that the parties agreed to have a child and agreed to use artificial insemination in order to have a child; that she knowingly entered into a relationship with petitioner and willingly entered into a fraudulent marriage despite the fact that petitioner is biologically a woman; that she and petitioner openly lived together as husband and wife for four years before the subject child was born; and, that she never objected that the subject child acknowledged petitioner as his father and she allowed the child to call petitioner “Dad” without admonition. According to the attorney for the child, he has steadfastly referred to petitioner as his father and respondent as his mother. The parties attempted to settle the custody and visitation issues while petitioner exercised temporary custody and the court granted expanded visitation to respondent. On 23 December 2007, during a visitation exchange, respondent alleged that petitioner threatened her in violation of a temporary order of protection and petitioner was arrested.

On 8 January 2008, the proceedings were transferred to IDV-2 in Kings County Supreme Court.
On 21 March 2008, respondent initiated a contested matrimonial proceeding in Supreme Court which was transferred to the herein court.

On 5 May 2008, in the matrimonial proceeding, the herein court continued the temporary order of custody of the child to petitioner. Petitioner reported that respondent repeatedly gave the subject child food containing dairy products which aggravated his asthma and neglected to give him his asthma medication as prescribed. The child reported to his attorney, that, at times, he shared respondent’s bed with her boyfriend.

On 21 July 2008, the parties consented to the issuance of a declaratory judgment in the matrimonial proceeding which adjudged the marriage to be void. Subsequent to the resolution of the matrimonial proceeding, the child reported to his attorney that there was an increased use of derogatory language by respondent about petitioner. Petitioner alleged that respondent used vulgar epithets to refer to petitioner when speaking to the subject child including “bitch,” “fucking bitch” and “fucking idiot.”

On 8 August 2008, the child made an allegation to his attorney of excessive corporal punishment by respondent which was reported to the court. The child described, to his attorney, that he was struck with a belt on the genitals and on the buttocks by respondent. On 14 August 2008, the temporary order of visitation was suspended. Visitation with respondent was reinstated after further investigation and a series of supervised visits.

On 16 June 2009, respondent made an application to transfer custody of the child pending a fact-finding hearing. The request was based on an allegation that petitioner failed to provide the child with medical care and for violation of the court direction that petitioner cooperate to assure that respondent would see the child on his birthday although it occurred during petitioner’s parenting time. Respondent also moved to dismiss the petition for custody since petitioner had no standing, as a biological stranger, to seek custody or visitation with the subject child.

On the contrary, petitioner contends that the doctrine of equitable estoppel should prevent respondent from claiming that petitioner was not the legal parent of the subject child and that extraordinary circumstances exist to establish the legal standing to petition for custody or visitation.

The Issue:
Does petitioner have standing to petition the court for custody of a nonbiological child? Does an extraordinary circumstance exist to warrant the award of custody to petitioner?

The Ruling:
The law has long been settled in New York that a parent’s right to the care and custody of a child is superior to that of all others, absent a showing that the parent has abandoned the child or is unfit to discharge the obligations of parenthood. A finding of “extraordinary circumstances” is the threshold burden to be addressed before any examination as to the best interest of the child is made on a petition for custody filed by a nonbiological party. The petitioner bears the burden of establishing the existence of such extraordinary circumstances. A prolonged separation between the biological parent and the child wherein a psychological parent has bonded to the child would satisfy the threshold of extraordinary circumstances and afford standing to a petitioner seeking custody of a child. Psychological bonding between a nonbiological parent and a child has resulted in a court finding that extraordinary circumstances did exist which allowed the nonbiological party to petition a court for custody of a child. Extraordinary circumstances may be found even in the absence of a finding of unfitness by the biological parent. If removal from the custody of a nonparent would cause significant emotional injury since a strong bond developed between a child and the nonbiological parent, the possibility of that injury would justify a finding of extraordinary circumstances.

In the instant case, the proceedings reflect that the subject child has a strong emotional and psychological bond with petitioner and, in fact, petitioner is the only father that the child has known. This situation was created with the active cooperation of respondent when the parties entered into the marriage. Petitioner and respondent lived as husband and wife for at least eight years, executed a marriage certificate, completed an artificial insemination consent form, filed a birth certificate which identified petitioner as father of the child, and encouraged the subject child to accurately and without qualification address and consider petitioner as his father for more than six years.

The circumstances presented here reflect an unfortunate disruption of custody of the biological parent over an extended period of time. The voluntary abdication of physical custody and parenting responsibility by the biological parent under the color of the law since the conception of the child, and the credible allegations of inappropriate parenting decisions by the biological parent which, together, amount to sufficient compelling circumstances to apply the doctrine of equitable estoppel to the analysis of the total circumstances of the dispute. These circumstances alone support a finding of exceptional circumstances in the case.

Notably, petitioner petitioned for custody while the parties were still married. Petitioner was the legal parent of the subject child at conception and birth and respondent gave petitioner full parenting authority over the subject child for almost six years before raising any objection to the arrangement. Petitioner acquired his status as husband to respondent and father to the subject child for more than six years only because of the active cooperation of respondent for more than nine years. Respondent now seeks to prevent petitioner from having any relationship with the subject child who has only known one person, petitioner, as his father for more than six years. In addition, respondent never explained why, when she left the marital residence, she left the child in the actual physical custody of petitioner between July and August of 2007 (Family Court and Supreme Court granted temporary custody to petitioner), why she made no effort to set aside the marriage until 21 March 2008, although she alleged the parties were estranged and why she made no issue of the standing of petitioner until he was granted temporary custody of the subject child in Family Court. During the proceedings, there were allegations that respondent used excessive corporal punishment, inadequately supervised the child in her home and failed to attend to the child’s health or dietary needs properly. Respondent now seeks an order which would transfer custody of the child and deny petitioner standing to petition for custody after fostering the psychological bond between petitioner father and the subject child for almost six years. It is more than likely that if the relationship is terminated, it would have a devastating psychological and emotional effect on the child. The biological mother planned, enabled and encouraged the development of a father-son relationship between petitioner and the subject child. Petitioner and the attorney for the child submit that respondent should be equitably estopped from raising the issue of standing under these particular circumstances. The doctrine of equitable estoppel is generally imposed by a court in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party’s words or conduct, has been misled into acting upon the belief that such enforcement would not be sought.

Clearly, from the facts adduced, an abrupt termination of the father-son relationship which petitioner and respondent together created would put the child in a situation where his welfare could be affected drastically and, thus, an extraordinary circumstance exist requiring inquiry into the child’s best interests. Respondent through her words and deeds held out petitioner as the father of the child. In addition, the subject child is now seven years old and the additional years of relationship have dramatically increased the potential for a traumatic effect on the subject child if that father-son relationship with petitioner would be terminated. It is not unreasonable to believe that the parties here created an expectation by petitioner that he would have standing to seek custody or parenting time. Petitioner relied on the statements and actions of respondent to enter and foster a relationship with the subject child; if respondent can now preclude petitioner from being heard, no fact-finding will be conducted on the traumatic effect a termination of that father-son relationship, encouraged by respondent for six years, would have on the child.

There are statutory provisions of particular relevance which recognize petitioner’s legal status notwithstanding the fact that the marriage was eventually judicially declared null and void. Domestic Relations Law § 73 establishes parental rights to a child conceived via artificial insemination with the consent of both parties. Such a child is considered the legitimate child of the parents at the time of insemination and the permission of the nonbiological parent is required before another party can adopt that child. Domestic Relations Law § 73 recognizes that any child born to a married woman by artificial insemination performed by persons duly authorized to practice medicine and with consent in writing of the woman and her husband, shall be deemed the legitimate birth child of the husband and wife.

Moreover, the Appellate Division, First Department, has held that allowing the de facto father of a child to contest the legal relationship between that child and himself, which was ongoing for 11 years, because the de facto parent was not married to the biological mother, was an error. A “formulaic approach” that allows only a biological or adoptive parent to be a parent to a child may not always be appropriate.
The exact quantum of evidence needed by a petitioner to establish extraordinary circumstances may not be clearly or exactly measured, but the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role certainly should be factors to be considered.

Here, the child has known petitioner as his father for his entire life and petitioner has had temporary custody of the child throughout all of the proceedings. Respondent did not raise the issue of the biological status of petitioner in the proceedings and, in fact, hid it from the child and the rest of the world until petitioner filed a petition for custody of the child. Respondent never sought exclusive parental responsibility for the child until the child was five years old although it is undisputed that she is the biological parent of the child. Petitioner, the nonbiological parent, enjoyed legal status as husband to respondent and as father to the child through conception, birth and until the child was more than six years old when the marriage was declared null and void. It is not in dispute that the child has a strong emotional and psychological bond with his father despite the fact that there is no biological relationship with the child. The fact that petitioner is biologically a woman is immaterial.

In sum, based on the statements of the parties in their affidavits, the reports submitted, and the court’s observations of the demeanor and conduct of the parties in court, petitioner has sustained his burden of proof to establish the presence of extraordinary circumstances to grant standing to proceed with a petition for custody. Furthermore, there are additional equitable considerations present that were created by both of the parties who entered into the marriage. Respondent should be equitably estopped from challenging the standing of petitioner to seek custody since respondent perpetrated the fraud and derived benefits from it until she raised it in the matrimonial action. Respondent abdicated her parenting authority to petitioner and actively encouraged the creation of a father-son relationship between petitioner and the subject child. In fact, respondent does not dispute the existence of a close father-son relationship.
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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.

There is no doubt that this new father suffered greatly watching his baby boy born, only to realize that the child was strangling to death. The father is not to be blamed, he simply was not trained to handle the situation. The fact that the doctor had administered labor inducing drugs and then left without ensuring that the mother would be monitored is against current New York law which states that once the doctor from Queens or Staten Island has administered a labor inducing drug, he or she is required to monitor the patient’s progress constantly until the child is born. Constantly does not count as in the hall, locker room, or cafeteria. It requires that the doctor monitor the patient. In this case, the doctor failed to monitor the patient and she went into active labor as a result of the inducing drugs.

The argument is that if the trained staff had been present at the time that the child was born, the umbilical cord could have been removed from his neck before he incurred any injury. The infant was born alive and would have remained alive. This medical malpractice action is an example to every one of the need for proper legal counsel in handling these types of circumstances.
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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.

Some cases are too heinous to be handled in family court in either Queens or Staten Island. The court contends that this case is one of them. Serious cases that involve the level of abuse that has been observed in this case, as well as homicide and numerous other cases are more appropriately handled at the criminal level. Criminal court is designed to punish offenders of criminal statute. Civil court is designed to offer alternative rehabilitation to the family unit by using family court processes which are civil in construction. The court determined that it is important to send a message to all persons who may consider striking out against an infant that if they use force against a child, they will be sent to prison. In this case, the child was in the custody of both parents the entire 56 days of her life and the ridiculous excuses that they presented for the cause of the child’s injury require criminal court review. The request to have the case transferred to family court was denied.
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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.

According to the testimony of the director of neonatology of the institution, tremors are signs of hypoglycemia, a lowering of blood glucose in a newborn. When the baby was admitted to the neonatal intensive care unit, his blood glucose level was measured through a heel stick test at less than 20 mg/dL. Later, the laboratory again drawn blood from the baby and measured a glucose level of 3 mg/dL. According to the doctor, a normal glucose level for an infant approximately 40 minutes old is about 40 mg/dL. The baby was given glucose via intravenous push and glucose infusion and his blood glucose level measured at 71 mg/dL, which is within the normal limits. Thereafter, the baby’s blood glucose level remained within normal limits until he was discharged from the hospital.

A year later, the baby was referred to the same institution for evaluation due to delays in reaching certain developmental milestones. Subsequently, the baby underwent a brain imaging examination at the other hospital. The brain imaging results revealed some abnormalities and the baby was diagnosed with cerebral palsy.

The complainant’s initiated the legal action to recover damages for medical malpractice against the hospital. The complainant’s claimed that the hospital failed to timely diagnose and treat the hypoglycemia of both the mother and the baby. The complainant’s claimed that the baby’s hypoglycemia had caused, among other things, his brain injury and cerebral palsy.
By notice of motion, the hospital moved to ask for decision without proceeding to dismiss the complaint or in the alternative, for a hearing to test the standards for admitting scientific evidences. In the event, the opponent offered a sworn statement from an expert stating that the baby’s injuries were caused by the possible transient episode of maternal hypoglycemia during pregnancy, or the transient episode of hypoglycemia after the baby’s birth. In addition, the opponent supported its motion with the expert affirmation of a doctor, who argued that the baby’s episode of neonatal hypoglycemia did not cause his alleged injuries. According to the doctor, the abnormalities shown on the result of the imaging was a typical lesion resulting from a decrease in oxygenation to the brain. The doctor also states that the baby’s brain injury, as shown on his MRI, was a result of decreased oxygenation to his brain at 32-34 weeks gestation, and was not caused by the transient hypoglycemic episode at his birth. The doctor also asserted that it was not accepted in the medical profession that a short and promptly treated episode of hypoglycemia in a newborn could cause brain injury.

The complainant’s opposed the opponent’s argument and states that it is improper to demand for decision without trial because there were triable issues of fact concerning the nature and cause of the baby’s illness. The complainant’s also submitted the expert affirmation of another doctor and stated that the baby had been born with profound hypoglycemia, and that the delay in diagnosis and treatment was a significant factor causing his brain injury. The Staten Island doctor of the complainants’ disagreed with what the doctor of the opponent’s conclusion that the mother’s seizure had caused the baby’s brain injuries. The doctor of the complainant further stated that the baby’s normal appearance and good scores at test after his birth and the delay of the onset of his tremors until approximately 40 minutes after birth were consistent with depletion of glucose stores after birth rather than a primary inadequate oxygen damage . The doctor characterized the baby’s tremors as one of the seizure in newborn and further stated that the tremors or seizures had been caused by his profound hypoglycemia at birth. Their doctor also asserts that the imaging result was essentially accurate in its findings.

After the said arguments, the Supreme Court granted the branch of the opponent’s motion for a trial to admit scientific evidences and held in suspension the other motion which was for judgment without trial dismissing the complaint. The Supreme Court determined that the complainants’ experts had provided limited reference to medical or scientific literature to support their opinions, and that a trial should be held to determine whether their assumption were based on principles which were sufficiently established to have gained general acceptance. The court then conducted the hearing for admission of scientific evidences.

After the trial, the Supreme Court granted the branch of the opponent’s motion for decision with trial to dismiss the complaint after concluding that the complainants’ expert testimony regarding causation was irrelevant. In addition, the Supreme Court concluded that the doctor’s inability to label any of the medical literature he had reviewed as reliable ran counter to a conclusion that the findings set forth were generally accepted in the scientific community.
Based on the record, the theory of causation supported by the complainants’ experts is acceptable at trial and the court improperly granted the opponent’s motion to dismiss the complaint without any trial. Although the opponent’s expert submissions established that the baby’s brain damage was not caused by his episode of neonatal hypoglycemia, the complainants raised a triable issue of fact through the submission of acceptable expert opinion evidence. Consequently, under the particular situation of the case, the Supreme Court should have denied the branch of the opponent’s motion to dismiss the complaint without any trial. Furthermore, the appeal from the intermediate order must be dismissed because the right of direct appeal there terminated with the entry of decision in the action. The issues raised on the appeal from the order are brought up for review and have been considered from the decision.

The court accordingly ordered that the judgment is reversed. The branch of the opponent’s motion to dismiss the complaint without any trial is denied and the order is modified appropriately. In addition, the court ordered that the appeal from the order is dismissed and the one bill of costs is awarded to the complainants.
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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.

Hence, plaintiffs (1st plaintiff-wife and 1st plaintiff-husband) commenced this action seeking – damages on behalf of the infant for “wrongful life”, and, in their own right, for the various sums of money they will be forced to expend for the long-term institutional care of their retarded child; damages for the emotional and physical injury suffered by the plaintiff-wife as a result of the birth of her child; and damages for the injury suffered by the plaintiff-husband occasioned by the loss of his wife’s services and the medical expenses stemming from her treatment.

Meanwhile, in June of 1969, in the companion case, another woman (2nd plaintiff-wife) gave birth to a baby who, afflicted with polycystic kidney disease, died only five hours after birth. Concerned with a possible reoccurrence of this disease in a child conceived in the future, the woman and her husband consulted defendants, the obstetricians, who treated the wife during her first pregnancy, to determine the likelihood of this contingency. In response to 2nd plaintiffs’ inquiry, defendants are alleged to have informed plaintiffs that inasmuch as polycystic kidney disease was not hereditary, the chances of their conceiving a second child afflicted with this disease were “practically nil”. Based upon this information, the 2nd plaintiffs alleged that they exercised a conscious choice to seek conception of a second child; as a result, the wife again became pregnant and gave birth in July 1970 to a child who similarly suffered from polycystic kidney disease. Unlike their first child, however, plaintiffs’ second child survived for two and one-half years before succumbing to this progressive disease.

The 2nd plaintiffs allege that contrary to defendants’ advice polycystic kidney disease is in fact an inherited condition, and that if they had they been correctly informed of the true risk of reoccurrence of this disease in a second child, they would not have chosen to conceive.

Hence, the 2nd plaintiffs commenced this action seeking – damages on behalf of the infant for “wrongful life” and, in their own right, for the pecuniary expense they have borne for the care and treatment of their child until her death; damages for the emotional and physical injuries suffered by the 2nd plaintiff-wife as the result of the birth of her child; damages for emotional injuries and expenses suffered by the 2nd plaintiff-husband; damages for the injury suffered by the plaintiff-husband occasioned by the loss of his wife’s services; and damages on behalf of plaintiffs, as administrators of their child’s estate, for wrongful death.

Do the complaints state cognizable causes of action that the court may rule upon?

A thoughtful analysis of the validity of “wrongful life” as an emerging legal concept requires, in the first instance, a clear understanding of the alleged wrong upon which the cause of action is predicated. Not surprisingly, the term “wrongful life” has functioned as a broad umbrella under which plaintiffs alleging factually divergent wrongs have sought judicial recognition of their claims. To be distinguished from the cases before us are those in which recovery is sought for what may perhaps be most appropriately labeled “wrongful conception”, wherein parents, one of whom has undergone an unsuccessful surgical birth control procedure, have sought damages for the birth of an unplanned child. There, damages have not been sought on behalf of the child a healthy and normal infant but by the parents for expenses attributable to the birth, including the pecuniary expense of rearing the child. Judicial reaction to the “wrongful conception” cause of action has been mixed.

Plaintiffs’ complaints sound essentially in negligence or medical malpractice. As in any cause of action founded upon negligence, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party.

An examination of plaintiffs’ complaints leads to the conclusion that, insofar as plaintiffs allege claims on behalf of their infants, whether denominated as claims for wrongful life or otherwise, they have failed to state legally cognizable causes of action.

There are two flaws in plaintiffs’ claims on behalf of their infants for wrongful life. First, it does not appear that the infants suffered any legally cognizable injury. There is no precedent for recognition of “the fundamental right of a child to be born as a whole, functional human being”. Surely the use of somewhat similar words in another context affords no such basis. Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Second, the remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant’s parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant’s negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant’s parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the choice of life in an impaired state and nonexistence. This is a comparison the law is not equipped to make.

Accordingly, the court rules that the plaintiffs’ complaints insofar as they seek damages on behalf of their infants for wrongful life should be dismissed for failure to state legally cognizable causes of action. Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant’s damages is best reserved for legislative, rather than judicial, attention.

On the validity of plaintiffs’ causes of action brought in their own right for damages accruing as a consequence of the birth of their infants. There can be no dispute at this stage of the pleadings that plaintiffs have alleged the existence of a duty flowing from defendants to themselves and that the breach of that duty was the proximate cause of the birth of their infants. That they have been damaged by the alleged negligence of defendants has also been pleaded. Unlike the causes of action brought on behalf of their infants for wrongful life, plaintiffs’ causes of action, also founded essentially upon a theory of negligence or medical malpractice, do allege ascertainable damages: the pecuniary expense which they have borne, and must continue to bear, for the care and treatment of their infants. Certainly, assuming the validity of plaintiffs’ allegations, it can be said in traditional tort language that if it weren’t for the defendants’ breach of their duty to advise plaintiffs, the latter would not have been required to assume these obligations. The fact that plaintiffs’ wrongful life claims brought on behalf of their infants do not state legally cognizable causes of action inasmuch as they fail to allege ascertainable damages in no way affects the validity of plaintiffs’ claims for pecuniary loss. Plaintiffs’ causes of action are predicated upon a breach of a duty flowing from the defendants to themselves, as prospective parents, resulting in damage to plaintiffs for whom compensation may be readily fixed. However, this does not mean that plaintiffs may actually recover for psychic or emotional harm alleged to have occurred as a consequence of the birth of their infants in an impaired state (birth injury or birth injury accident). While sympathetic to the plight of the parents, the court declines, for policy reasons, to sanction the recovery of damages. To permit recovery would have “inevitably led to the drawing of artificial and arbitrary boundaries.”

To permit plaintiffs to recover for pecuniary loss while precluding recovery for alleged emotional injuries suffered as a result of their infants’ birth does not run counter to this court’s decision

We had little difficulty in concluding that the psychological impact resulting from a daughter’s receipt of a notice incorrectly indicating that her mother had expired would be debilitating. That a daughter might receive such notice with mixed emotions lacks any rational basis in human experience. The same cannot be confidently said with respect to the birth of a child, the conception of which was planned and fully desired by the parents. To be sure, parents of a deformed infant will suffer the anguish that only parents can experience upon the birth of a child in an impaired state. However, notwithstanding the birth of a child afflicted with an abnormality, and certainly dependent upon the extent of the affliction, parents may yet experience a love that even an abnormality cannot fully dampen. To assess damages for emotional harm endured by the parents of such a child would, in all fairness, require consideration of this factor in mitigation of the parents’ emotional injuries in which the calculation of damages for plaintiffs’ emotional injuries remains too speculative to permit recovery notwithstanding the breach of a duty flowing from defendants to themselves. As in the case of plaintiffs’ causes of action for damages on behalf of their infants for wrongful life, the cognizability of their actions for emotional harm is a question best left for legislative address.

Accordingly, on the 1st plaintiffs, the complaint which was made in Staten Island and also Westchester is dismissed except to the extent that it seeks recovery of the sums expended for the long-term institutional care of their retarded child. On the 2nd plaintiffs, the complaint is also dismissed except to the extent that it seeks recovery for the sums expended for the care and treatment of their child until her death.
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