Articles Posted in Westchester 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 Facts:

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

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

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

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

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

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

The Ruling:

Defendants assert four arguments in favor of their motion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Because of the vagueness of the claims, it is impossible to presume that the City of New York had notice of the claim from its possession of the child’s medical records. It would be highly prejudicial to the City of New York to make it defend itself against the vague claim after nine years had passed. It would be difficult if not impossible for the City to investigate the truthfulness of the claim.
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A woman was pregnant at thirty-one weeks in August 2001. She was rushed to the emergency room because of premature labor. The doctors found that she was suffering from hypoglycemia or low blood sugar at 26 mg/dl. Her blood sugar levels normalized so she was discharged two days later.

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

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

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

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

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

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

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

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

In this the plaintiff has raised material issues of fact that prevents the granting of a motion for summary judgment.
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Plaintiff-wife, together with her Westchester husband, has sued her prior physician for alleged malpractice for insertion in 1973 of a Majzlin Spring Intrauterine Device (hereafter known as IUD), a birth control device which was recalled at the medical level by the Federal Food and Drug Administration (F.D.A.), allegedly prior to the date of insertion. Plaintiff has also joined, as party defendants, both the developer and the distributor of the Majzlin Spring.

Plaintiffs’ allegations of medical malpractice are twofold: first, that the defendant was negligent in inserting the IUD originally (when it had already allegedly been recalled); and further, that he was negligent in later failing to inform the plaintiff-wife that the IUD had been recalled and should be removed.

Defendant physician moved to dismiss the action against him on the grounds that it is time-barred under the Statute of Limitations; that he inserted the IUD in November of 1972, prior to the recall by the F.D.A.; and that, regardless of when the device was inserted, the then three year Statute of Limitations has long since run in either event, since the alleged malpractice, if any, occurred at the time of insertion.

The Ruling:
Notably, the Court has before it only a motion to dismiss. There is no cross-motion to dismiss the affirmative defense. Thus, the only issue is whether, assuming the truth of the facts asserted in the complaint, the cause of action is time-barred as a matter of law.
On the issue of failure to inform, this was a continuing omission on the part of the defendant which existed up to the time that plaintiffs learned that the IUD had been recalled and/or should be removed, which was apparently sometime in 1978-9. Plaintiffs would have had two and one-half years from the date of the omission to bring their action. The complaint was served in July, 1979. As such, the motion to dismiss that part of the cause of action which relates to said failure to inform is denied.

On the original insertion of the IUD, plaintiffs proceed under the theory that the IUD constituted a foreign object negligently inserted and/or left in the plaintiff-wife’s body, so that the Statute of Limitations did not begin to run until the plaintiffs had or should have reasonably discovered the malpractice. Under this theory, the applicable Statute of Limitations would be one year from the date of reasonable discovery, which plaintiffs claim was sometime in 1978-9. There is no claim by defendant that, if the one year is applicable, the action was not brought within the permissible time period.

The general rule is that the Statute of Limitations begins to run at the time of the medical treatment when the foreign substance, e. g. a drug is introduced into the body, and not at the time of discovery of the consequent injury or disease. However, when a foreign object is negligently left in the body, the action accrues at the time of reasonable discovery of such foreign object and the malpractice.

Here, as the IUD is not a chemical compound, fixation device or prosthetic aid, it is not barred by statute from being classified as a foreign object, if appropriate.

The question of whether an IUD constitutes a foreign object has been resolved by courts in recent case laws. In the case of Ooft, the court found that an IUD constituted a foreign object, in a case in which the physician had failed to remove a first IUD when inserting a second one. Plaintiff, who allegedly did not know that the first IUD had not been removed, suffered complications and underwent surgery, at which time the first IUD was found and removed. The fact pattern established a classic foreign object case, in which the patient is totally unaware of the presence of the foreign object left in the body initially. The court therein both denied the motion to dismiss and struck the affirmative defense of the Statute of Limitations. On appeal, the order was modified to the extent of deleting the provision striking the affirmative defense of the Statute of Limitations.

The aforesaid case is clearly distinguishable from the case herein. However, a recent decision by in Supreme Court, New York County, in June of 1981, involving a Dalkon Shield, another type of IUD, is more on point. In that case, the IUD was inserted in 1972 and the plaintiff developed an infection in 1978 which necessitated surgery, allegedly because the IUD was defective. The court examined the relevant case law at length and ultimately concluded that the cause of action accrued at the time of discovery rather than at the time of insertion.
Although the defendant in the aforesaid case was the manufacturer rather than the physician, much of the reasoning leading to the conclusion that the cause of action did not accrue until the time of discovery is applicable in the instant case. The facts are similar: there was no personal injury claimed to have occurred at the time of the insertion of the defective IUD; complications (i. e. actual injury) did not apparently occur until 5 or 6 years later; the probable causation for this injury (here the allegedly negligent insertion of the IUD) was not known to plaintiff until shortly after the time of injury (even though the presence of the IUD was known all along). Like the court therein, the herein Court finds that the policy considerations stated lead to the conclusion in such circumstances that the cause of action did not accrue until the reasonable discovery of the malpractice (here seemingly in 1978-9). In addition, there was the alleged negligence of the defendant in failing to advise the plaintiff of the recall of the particular type of IUD, which continued up to the time of reasonable discovery.

Henceforth, the motion to dismiss is denied, without prejudice to defendant to assert and prove his affirmative defense.
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When a child is born with a severe birth defect that is genetically based and could have been discovered through fetal testing, there can be civil remedies to assist the family in some situations. If the fetal testing has been performed and returned normal, but the child was born with genetic problems, then the parents of the child might have the basis for an action brought for wrongful life. In one case that was sent to the court of appeals for the state of New York on November 13, 1984, a child who was born with Down’s Syndrome filed a suit to recover damages from the hospital and doctors who were responsible for her mother’s prenatal care.

She contends that her mother ordered the amniocentesis test during her pregnancy to determine if she would have a fetus with any genetic abnormalities. The test results that were given to her mother said that her mother would have a normal, healthy, baby boy. However, her mother gave birth to a daughter with severe Down’s Syndrome. She contends that if her mother had been properly informed by the hospital that she was carrying a child with Down’s Syndrome that she would have had the child aborted. However, since the test results that were given to her mother were totally incorrect, her mother did not have an abortion and she was born.

She seeks monetary compensation to assist her with the extraordinary expenses that she will have in her lifetime for special care. The court in New York City reviewed her application and determined that an action for wrongful life is difficult to conclude. Wrongful life in a case such as this one, where an amniocentesis test was requested and performed, could indicate to a jury that the mother upon information that the child was genetically abnormal would have aborted the pregnancy. If her mother, or her father had filed a wrongful action within six months of her birth, it is likely that they would have been granted the motion to proceed. The option to abort a child that is not genetically normal is one that is recognized by the State of New York and was an option that was likely in this particular case. The fact that the wrong test results were presented to this child’s mother is obvious in that the baby born to this woman was neither a male nor free of genetic abnormalities. There was clearly fault that could be applied to the medical practitioners in this case if the parents of the child had filed the suit early in her life.

However, the court ruled that there is no ability of a child to file an action for wrongful life. Because a child is born in an impaired state, does not imply that that child does not have a right to live. If the court was to grant a claim from a live child on wrongful life, it would be making a statement that that child does not deserve to live. The court refuses to make such a contention and finds that it is impossible for a child to sue for their own wrongful life. This case opens the door for much speculation about the validity of the handling of the test results. If this woman received the test results for a normal male child, who obtained the test results that were intended for her own pregnancy. What decision was made by the family that was expecting a daughter with Down’s Syndrome when they were actually pregnant with a normal healthy boy? Was that child aborted? The responsibility that the hospital in Westchester bears when performing tests that are the basis for life and death decisions is enormous. In this case, the hospital mistake allowed this little girl to face a life in a world that offered her mother the option to abort her while she was just a fetus.
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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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On 2 January 2008, the instant action was commenced, when NYCCS filed abuse petitions against respondent-mother.

On 31 December 2007, respondent allegedly allowed the subject child (herein “subject child”) to sleep in her bed, touch her, kiss her on the mouth, insert his finger in her anus, insert his finger in her vagina, and have sexual intercourse with her to the point of ejaculation.

According to respondent, she did not stop the child because she could not believe that her son would do this to her, and she wanted to see how far he would go. The said incident was alleged to be in violation of Penal Law, sexual misconduct, rape in the third degree, rape in the second degree, and sexual abuse in the third degree. In addition, the petitions alleged that respondent failed to provide adequate care and supervision for the children by misusing alcoholic beverages to the extent that she loses control of her actions. Specifically, the petitions alleged that on 30 December 2007, she drank two Corona beers causing her to become intoxicated. In addition, the petitions alleged that the subject child woke up at 3:00 AM on 31 December 2007 in his mother’s bed smelling alcohol because she drank three quarters of a fifth of Johnnie Walker Red on the previous evening. Finally, the petitions alleged that respondent’s other two children are derivatively abused and neglected children by virtue of the abuse of the subject child.

On the day the petitions were filed, the Court granted the request of NYCCS for a remand of all of the children. On 2 January 2008, the subject child was placed at a diagnostic residential center for an evaluation.

Thereafter, respondent requested a Family Court Act hearing seeking the immediate return of her other two children. The court then ordered the temporary release of the two children to respondent-mother on the condition that she cooperate with referrals for a mental health evaluation, individual counseling and parenting skills, as well as NYCCS supervision.

On 29 January 2008, NYCCS moved in the Appellate Division, Second Department for a stay of the aforesaid order pending appeal. The Court in New York City granted an interim stay pending a decision on the motion. On 14 February 2008, the Court granted the motion for a stay pending appeal. Thereafter, by order and decision dated 12 August 2008, the Court reversed the order and remitted, holding that the undisputed evidence, establishing sexual contact between respondent and her son evidenced a deeply flawed understanding of her parental duties and impaired judgment. The Court found that this evidence supported a finding that the two other children were derivatively abused. The Court noted that non-respondent father had indicated a willingness to assume custody in the event that the children were not returned to the mother.
On 31 January 2008, the Court temporarily released the two other children to their non-respondent father under NYCCS supervision. Respondent-mother was granted visitation with the two children to be supervised by non-respondent father or his wife.

On 12 February 2008, the treatment team recommended that the subject child be placed in a Residential Treatment Center. He was not actually transferred to such a facility, however, until 26 June 2008. Thereafter, he was transferred to a group home on 13 April 2009.
Respondent-mother has not visited or communicated with the subject child since the commencement of the proceeding. She does not want any contact. At this point, the subject child no longer wishes to have any contact with his mother. Since the petitions were filed, he has had no contact with his half-siblings or his stepfather. Subject child’s paternal aunt and uncle have agreed to be resources for him. They currently reside in Florida and the ICPC has been submitted. They have repeatedly traveled to New York and Westchester County to visit with their nephew and have been active participants in his treatment. He has also had some contact with a maternal aunt.
On 21 May 2008, the fact-finding hearing began and continued over the course of approximately 22 months on numerous court dates. During the fact-finding hearing, NYCCS called an officer from the 90th precinct, the NYCCS caseworker and the casework supervisor. Respondent-mother called her husband to testify and she also testified on her own behalf.

The Ruling:
Family Court Act defines a sexually abused child as a child less than 18 years of age whose parent or other person legally responsible for his care commits, or allows to be committed an offense against such child defined in article 130 of the Penal Law; or allows, permits or encourages such child to engage in any act described in §§ 230.25, 230.30 and 230.32 of the Penal Law (involving prostitution); or commits incest in the first, second or third degree. Under the Family Court Act, it is unnecessary to allege or prove harm or threatened harm to the child.
Where sexual abuse or forcible touching is alleged, it is necessary to prove that respondent intended to gratify the sexual desire of either party. There is no requirement that actual gratification occurs but only that the touching be for that. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing. Because the question of gratification is a subjective one, this element may be inferred from respondent’s conduct or from the acts themselves.

Here, there was no objective indication that respondent did not consent. While respondent asserts that she did not consent to having sexual relations with her son and that he raped her, neither the applicable law nor the facts adduced at fact-finding support her contention.
The Penal Law defines lack of consent for purposes of a sex offense. It establishes that a lack of consent results from forcible compulsion or incapacity to consent. In addition, the statute provides that where the offense charged is sexual abuse, lack of consent can be established by any circumstances indicating that the victim did not expressly or impliedly acquiesce in the actor’s conduct. Finally, where the offense charged is rape in the third degree, lack of consent can be established by any circumstances indicating that the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent under all the circumstances.

The court finds that there is no evidence of forcible compulsion, neither evidence of physical force nor express or implied threats exist; that there is no evidence that respondent clearly expressed her non-consent in a way that a reasonable person would have understood; that there is no evidence that respondent acted under duress or coercion; and that respondent-mother abused her son when she engaged in sexual relations with him whether or not the child willingly participated.

The Penal Law makes the forms of sexual relations it enumerates sex offenses when the victim is less than 17 years old. The statute establishes that a person less than 17 years old is incapable of consent. The law considers a child who engages in sexual relations with an adult as victimized, regardless of whether or not she or he actually consents or even initiates the sexual encounter. In other words, the statutory scheme imposes liability on respondent-mother for engaging in sexual relations with her son irrespective of whether or not he willingly participated. The entire rationale of an age of consent is based on the premise that a child who engages in sexual intercourse is victimized regardless of whether he or she sees themselves as a victim.

The Court finds that respondent voluntarily engaged in sexual relations with her son although she had the ability to stop him at any time. Her subjective belief that she did not consent is insufficient, without more, to establish that she did not expressly and impliedly acquiesce in the subject child’s conduct. It is likewise insufficient to show a clear expression of lack of consent that would be understandable to a reasonable person. Moreover, absent expert testimony, her claim that she was in shock and out of sync is manifestly insufficient to establish a defense.

On the Derivative Findings of Neglect against Respondent-Mother for the Remaining Children:
Family Court Act provides that 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 the respondent. Even in the absence of direct evidence of abuse or neglect of the other children, a derivative finding is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care. Depending on the nature of the underlying abuse or neglect, the court may make a finding of either derivative neglect or derivative abuse. A finding of derivative neglect is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment and fundamental flaw in respondent’s understanding of the duties of parenthood as to place the non-target children’s physical, mental or emotional condition at substantial risk of becoming impaired. Where, however, the evidence as to the directly abused child demonstrates such impaired parental judgment that it creates a substantial risk of protracted impairment to the non-target children’s physical or emotional health, a finding of derivative abuse is warranted.

Although the statute requires that evidence as to the abuse of one child be considered on the issue of the abuse or neglect of other children in the home, such evidence is not conclusive and does not establish a prima facie case of abuse or neglect as to the other children. The determinative factor remains whether the nature of the underlying misconduct, notably its duration and the circumstances surrounding its commission, evidences such a fundamental flaw in respondent’s understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists.

After considering the aforesaid criteria in light of the facts at bar, the Court finds that there exists a derivative neglect against respondent for the other two children. These findings are based on the evidence of respondent’s sexual abuse of the subject child and her ongoing refusal to accept responsibility for her actions, which demonstrate impaired parental judgment to such an extent that it placed the non-target children’s physical, mental or emotional condition at substantial risk of becoming impaired.

In sum, respondent is found guilty of sexual abuse as to the subject child, based on rape in the second degree; and, respondent is guilty of derivative neglect as to the other children. The allegations of alcohol abuse are dismissed since the evidence fails to establish that respondent repeatedly misuses alcoholic beverages to the extent that it caused a substantial state of stupor, unconsciousness, intoxication, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality.
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A 34 year old woman was pregnant. This was her third pregnancy, the first two had been terminated and this is the first time that she wanted to bring the pregnancy to term. She her last menstrual period in December 1999 and her estimated date of delivery was September 7, 2000.

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

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

Four months after her consultation with her obstetrician who was also a fertility specialist, she missed her period and so she took a home pregnancy test. She tested positive so she went back to her obstetrician who recommended blood work tests on her and wrote her a prescription for prenatal vitamins. She had an ultrasound and an amniocentesis to rule out genetic problems with her baby since she was already 34 years old. All the test results were normal.

Five months later, the woman experienced lower back pain and she felt that she needed to go to the bathroom to move her bowels. When she got to the bathroom, the urge to defecate was gone. Instead, she felt a bulge coming out of her vagina. She pushed the bulge back. She talked to her sister-in-law who told her to call her obstetrician.

She called her obstetrician and on the phone, the doctor told her to stand up and to see if she felt the same bulge coming out of her vagina but there was no bulge. The doctor advised her to rest as it might be hemorrhoids and to see her tomorrow. The day after, she felt the bulge again and went to see the doctor. She called her doctor and told him about the bulge she felt again. He told her to go to the hospital.

When went to the nearest hospital where the obstetrician on call saw her and advised her that her baby may have severe disabilities if delivered so soon. She made the pregnant woman lie with her head lower than her legs. She then arranged her to be transferred to another hospital where her regular obstetrician can better advise her and treat her. She was given medication to stop her contractions.

At the time she got to the university hospital where her doctor had admitting privileges, the doctor told her that she needed an emergency dilation and curettage. A D&C is a procedure that involves dilating the cervix artificially and scraping the uterus. It will cause an abortion and a termination of her pregnancy. The doctor also said that she also had the option to deliver the baby. She was told for the first time that she had an incompetent cervix and was already in labor even if she was only five months pregnant.

She was readied for an emergency cesarean section. She delivered a baby who weighed only one pound and thirteen ounces. The baby had significant developmental delays and disabilities.

The mother then filed a suit in damages for medical malpractice against her obstetrician for failing to diagnose her incompetent cervix; the obstetrician who saw her in the emergency room and refused to perform either a cesarean section on her or else a D&C so that she did not have to give birth to an impaired child and for her failure to inject her steroids to stop the labor; and the obstetrician who performed the emergency cesarean section on her and delivered her baby.

The doctors all filed motions for summary judgment asking that the complaint against them be dismissed. The Court held that the complaint against the doctor who saw the woman in the emergency room showed her entitlement to a summary judgment. She did not commit any medical malpractice when she gave the woman first aid to stop the labor and transport her to the nearest medical facility where her regular obstetrician can better diagnose her and treat her. Hospitals in The Bronx and Westchester have dealt with this problem.

The Court held that her regular obstetrician’s motion for summary judgment should be denied as there exist a material issue of fact that has to be tried by a jury. The question of whether or not the doctor was negligent in not immediately having the woman admitted into the emergency room at the university hospital where he had admitting privileges has to be tried by a jury; the question of whether or not with the woman’s history and with the examinations he had done, he should have diagnosed that the woman’s cervix was incompetent.
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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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