Articles Posted in Suffolk County

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The Facts:

On 8 April 2005, the subject infant was born at a hospital. Allegedly, the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of the labor and delivery. Though the infant was transferred to another hospital on 9 April 2005 for almost two weeks, he was transferred back where he remained until 24 May 2005. Thereafter, he was treated at the same Hospital through 2006.

A claim for medical malpractice against the New York City Health and Hospitals Corporation thereafter ensued brought by the infant’s mother, individually and on behalf of her son, the subject infant. It is alleged that the infant suffers from brain injury and severe developmental delays.

The Ruling:

In the case at bar, the court lacks jurisdiction to grant leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the action. As to the infant’s claims, based on the dates of the alleged malpractice, a notice of claim should have been served on respondent by 7 June 2005; however, the infant is the beneficiary of a CPLR infancy toll. Hence, the court may consider the application pursuant to General Municipal Law.

Under the rules, in determining whether to allow a late filing in Sufffolk or Westchester, the court must consider various factors: whether the petitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in defending on the merits.
Here, although the infant had a complicated course in the hospital following delivery, a difficult hospital course, as evidenced by entries in the Hospital’s records at the time of the petitioner’s birth, does not, standing alone, provide notice of the facts underlying a malpractice claim. Besides, entries in the medical records reveal that the infant was developing normally at the time of discharge and there was no indication of a long term injury. In fact, in the supporting affidavit of the infant’s mother, she admits to being aware of such conclusion by noting that at the age of three months her son had met all developmental milestones. Moreover, a note of a 20 July 2006 neurology visit supports such conclusion. Furthermore, sometime in October of 2006, the infant’s mother also stated that, at about 17 months post-delivery, her son had once again met all milestones. The infant’s mother stated that she did not learn of her son’s alleged delays until some point thereafter and that it was not until 2008 that more findings led her to believe that her son’s damages were in fact related to his birthing process. Evidently, the respondent could not have been aware of any birth injury attributable to the delivery within 90 days of the date of accrual, or a reasonable time thereafter, as there was no indication that the infant suffered any alleged delays until later. Hence, the subject medical records alone, on their face, do not evince that respondent, by its acts or omissions, inflicted injuries on the infant and that respondent should have been aware of the same within the applicable 90 days, or a reasonable time thereafter.

In addition, the mother’s excuse for not being aware that her son’s problems could have been caused by malpractice was that she only has a high school education and was 23 years old at the time of her son’s birth is bereft of merit. Ignorance of the law requiring that a notice of claim be filed is not an acceptable excuse.

What’s more, there is no support for the assertion that the delay was the product of infancy or of the need to provide the infant with extraordinary care. Petitioner has failed to offer a reasonable excuse for the delay in filing the notice of claim.

In sum, the petitioners failed to offer the necessary nexus between the act of the respondent and any injury to petitioner that would put the hospital on notice that a claim would be filed with regard to the delivery at issue. The mere assertion that because the infant suffered a difficult neonatal course puts the respondent on notice of a malpractice claim is rejected. To prevail on the application, petitioner must establish that respondent had notice that the hospital departed from the standard of care in treating the infant, and that those departures caused the infant’s injuries. Here, petitioner has not established these elements; hence, the application is denied. The petitioners’ application, by Order to Show Cause, for an order seeking leave to file a late notice of claim and setting an immediate date for an examination of the claimant pursuant to the General Municipal Law is denied.
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The infant petitioner, Saad Muhammed, was born at defendant Hospital. The child was born prematurely at approximately 31-weeks gestation. It is alleged that the infant plaintiff suffers from, inter alia, cerebral palsy, spastic diplegia and developmental delay as a result of defendant’s medical malpractice due to failure to properly diagnose the amniotic infection of plaintiff infant’s mother, Sayyeda Fozia Tariq, and the defendant’s failure to properly monitor and intervene during the labor and delivery process.

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

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

The Nassau Court in deciding the case said that, in General Municipal Law § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit against a public corporation. Pursuant to General Municipal Law § 50-e(5), a court has the discretion to extend a petitioner’s time to serve a notice of claim, as long as the extension does not exceed the time limit for commencement of an action against the public corporation. Section 50-e(1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions. General Municipal Law § 50-e(5) instructs the court to consider certain factors.

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

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

The Court said that merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process. The relevant inquiry is whether the hospital had actual knowledge of the facts as opposed to the legal theory underlying the claim. Here the record reflects, the following factors: the infant was premature, i.e., born at approximately 31-weeks gestation; was of low birth weight, i.e., 3.2 pounds; needed immediate oxygen resuscitation and was on oxygen for five days after his birth; was transferred after birth to the NICU (Neonatal Intensive Care Unit) and remained hospitalized for one month after his birth. Under these circumstances, defendant’s possession of the medical records sufficiently constituted actual notice of the pertinent facts. Moreover, in light of the defendant’s actual knowledge of the essential facts constituting the claim, there is no substantial prejudice to its maintaining a defense. Finally, where, as here, there was actual notice and an absence of prejudice, the lack of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim. Accordingly, the notice of claim is deemed to be timely served, nunc pro tunc.

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

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

Accordingly, those branches of defendant’s motion which seek to dismiss the complaint for failure to file a timely notice of claim and for summary judgment are denied; that branch of defendant’s motion seeking to dismiss the derivative claims of Sayyeda Fozia Tariq is granted. Plaintiffs’ cross motion for an order deeming plaintiffs’ notice of claim to be timely served nunc pro tunc and to serve an amended bill of particulars is granted in its entirety.
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On October 10, 1989, a mother brought her son in to the Rusk Institute for his regular evaluation for spina bifida. While they were at the institute, the medical staff noticed that the child had pain in his arm. A medical examination revealed that the child was suffering from a spiral fracture of his upper right arm. The mother stated that the child had not shown any signs of pain or injury prior to appearing at the institute for his check up. She stated that she thought that the child’s one and one-half year old brother must have caused the injury. The medical staff contend that it is beyond unlikely that such a small child would have the strength or ability to cause a spiral fracture of an upper arm. The medical experts also contend that the injury could not have been caused by the child’s spina bifida. The medical staff stated that the child would have been in extreme pain at the time of the accident and for several days following the injury. The medical staff stated that at the time that the mother brought the child to the institute, the injury was obvious and included swelling, bruising, lack of movement, and pain whenever anyone touched the arm. The medical staff contend that the injury was obvious to them and that it should have been obvious to the parents. The contention is that the parents were responsible for neglecting the child to the point of child abuse in that they did not take the child to the hospital for treatment before his appointment on October 10th.

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

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

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

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

The court noted that Family Court had made note of the admirable care that the parents have provided for the baby, while at the same time finding that they are neglectful of the child. The Supreme Court vacated the charges of abuse and neglect and returned the children to their parents.
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This is an action sought by the defendants for the court to dismiss the complaint based on a summary judgment. The infant plaintiff, represented by her mother and natural guardian, sought to recover damages for personal injuries allegedly sustained by the infant plaintiff due to lead poisoning, negligence and medical malpractice committed by the defendants. The court dismissed the complaint and ruled in favor of the defendants.

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

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

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

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

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

The court held that the 1991 CDC Statement (Statement by the Federal Centers for Disease Control) with regard to mopping is only listed as an example of a simple way parents can reduce their children’s exposure to lead. It does not prohibit the use of vacuum cleaners, and, in fact, instructs that vacuum cleaners with agitators remove dust from rugs more effectively than vacuum cleaners with suction only. The 1991 CDC Statement is not meant to create an enormous burden on primary pediatric health care providers. In addition, 10 NYCRR 67-1.2 (a) (7) simply “requires reasonable efforts to ensure the provision of risk reduction education.”
The court reiterated that the 1991 CDC Statement provides that the urgency and type of follow-up depends on the screening blood lead test result. Here, at the time of the infant plaintiff’s first routine well-child on October 17, 2002, the infant plaintiff had previously had two negative lead test results. On that October 17, 2002 visit, the infant plaintiff was given anticipatory guidance and was screened and tested for lead poisoning.
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The birth of a child should be one of the happiest days of anyone’s life, however, when that child is injured during their birth, it is heartbreaking. One such injury occurred on June 8, 1990 when a woman was taken to Kingston Hospital in New York. During her labor, the umbilical cord prolapsed and came out before the baby. This is a very dangerous situation because it cuts off oxygen to the infant and can cause the infant to be born with brain damage or even dead. In this case, the doctor put his arm up inside the mother to hold the baby off of the umbilical cord. The baby was in a breech position, coming out bottom first. The doctor ordered an immediate Cesarean section to get the baby out. However, it was 45 minutes before the surgery actually occurred. During that time, the doctor continued to try to hold the baby off of the prolapsed cord.

Several hours after the little baby girl was born, she was transferred to Albany Medical Center where she died on June 10, 1990. The parents of the baby filed a medical malpractice lawsuit against the doctor and the hospital where she was born. They claim that the doctor failed to perform proper prenatal tests to determine the position of the infant prior to delivery. If the proper tests had been performed, the doctor would have known that the baby was breech and would have ordered a Cesarean section before she went into natural labor to safely remove the baby. They also contend that the delay in obtaining an operating room contributed to the death of their child.

The doctor from Suffolk County who delivered the baby, maintains that the child was not alive when she was born and that the only life signs were artificially stimulated by the resuscitation devices used in the hospital. The original trial court dismissed the medical malpractice lawsuit. The parents then appealed that decision to the Supreme Court. The Supreme Court agreed that the trial court should not have dismissed the initial lawsuit as it regards the causes of action for the mother. They did not agree that the father had any cause for action since he was not in any danger during the incident and would not have suffered any physical injury during the operation or the birth of the child.

The Westchester parents brought forth evidence from the ambulance personnel who transferred their child to the Albany hospital who stated that during transport, the baby woke up and cried. They also stated that the baby made grunting noises and was definitely alive at the time of the transport from one hospital to another. The Supreme Court agreed that the child was clearly alive since she did not die until two days after her birth. They also determined that the mother was entitled to almost all of the punitive damages that she sought to recover in the death of her child. Further, the mother sustained internal injury because of the doctor’s actions that may prevent her from ever being able to carry another child to term. The mother contends that she should receive compensation for these medically cognizable injuries that were the result of the doctor’s negligence. The court determined that the woman did not receive any injury beyond that which would normally be present at a normal birth and decided that the emotional distress that she claims to suffer because of these actions is not compensable with monetary compensation. The court allowed the case to go to trial on the other counts that the woman made with the exception of any counts that claim damages to the husband.
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A woman gave birth sometime on October 7, 2005 at a college hospital. An obstetrician attended the birth but an obstetrical resident was the doctor who personally delivered the baby.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, the order of the Appellate Division should be modified, with costs to the accused parties. The manufacturers’ motion for summary judgment to dismiss the third cause of action is granted. The certified question of whether the Supreme Court has erred should be answered in affirmative.
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A single mother gave birth prematurely to her baby girl on her 25th week of pregnancy. The child stayed at the neonatal intensive care unit of a university hospital where she was taken care of by the staff from the date of her birth on June 25, 2003 until she was released on August 3, 2003.

The child suffered from hydrocephalus; she had breathing disorders; she had seizure disorders and blindness. The mother brought a suit for medical malpracticeagainst the attending neonatologists, the nursing staff and the university hospital itself. The mother filed the suit in damages for and in behalf of her prematurely-born baby daughter, alleging that the attending neonatologist’s medical malpractice caused her child personal injury. The mother also brought a suit in damages alleging that the neonatologist’s medical malpractice and negligence that caused her daughter’s suffering also caused her personal anguish and distress. She claims the payment of her medical bills and for the maintenance and upkeep of her child who suffers irreversible and permanent brain damage which requires round-the-clock nursing care for the rest of her life.

The chief of the neonatal intensive care unit filed a motion to dismiss the cause of action against him for negligence and medical malpractice. The question of whether or not the complaint against the chief neonatologist should be dismissed is the only question before the Supreme Court.

The Supreme Court held that in medical malpractice cases, the person claiming damages from the medical malpractice has the duty to allege and give preliminary proof that the doctor being sued deviated or departed from accepted medical practices and that the deviation or departure is the proximate cause of the injury or damage.

The neonatologist who filed the motion for summary judgment must make a preliminary showing that he is entitled to a judgment, tendering sufficient evidence to eliminate any material issues of fact.

The neonatologist’s own testimony on his deposition is the only admissible evidence he proffered in support of his motion for summary judgment. In this testimony, he claims that he only saw and attended the child on the day it was born as he was scheduled as daytime attending neonatologist then but was not the scheduled attending neonatologist at the neonatal intensive care unit from July 7, 2003 until August 3, 2003. He claims to have seen the child next only on August 17, 2003.

He denied that he deviated from any accepted and regular medical procedure during those few days when he attended and cared for the child. He also denied that the residents, fellows and other medical personnel of the neonatal intensive care unit who were under his supervision deviated from normal procedure.

He claimed that the blindness of the child is a usual complication of premature birth. He claimed that there were no signs of brain bleeding noted. There were no indications that the intravenous line which was directly inserted into the child’s heart was ever wrongly placed.
To rebut this preliminary evidence, the single mother presented medical experts who asserted that the neonatologist departed from accepted medical practice by allowing the premature child to receive too high concentrations of oxygen and this was what destroyed the child’s retina and caused her blindness.

The expert witness also noted that prior to the increase of the blood oxygen levels of the child, the child showed no signs of brain injury. It was the repeated exposure to high level of oxygen concentration that caused her lung infection, her brain injury and her blindness.

The experts in Nassau and Suffolk also testified that the doctor should have seen from the x-rays taken of the child that the intravenous tube through which food and medicine was being directly administered to the child had been removed from the proper place (near the biggest blood vessel in the heart where sufficient blood flow will allow rapid dispersal of the medicine and nourishment. The expert testified that because the neonatologist did not see that the intravenous line was not in the right place, the fluids collected in too high concentrations near the heart further making it difficult for the child to breathe and this caused the child’s brain to be deprived of too much oxygen for long periods of time and caused her brain injuries.

The Court then decided that the trial court did not err in denying the motion for summary judgment as the experts presented by the plaintiff have raised material issues of fact that require a trial. What caused the child’s blindness and brain injury are material issues of fact that renders a motion for summary judgment untenable.
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