Articles Posted in Cerebral Palsy

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The Facts:

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

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

The Ruling:

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

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

In sum, the Supreme Court improvidently exercised its discretion in striking the Hospital’s answer and, instead, should have imposed the lesser sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data. Accordingly, the appeal by the defendants is dismissed as abandoned; the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting the plaintiff’s motion to strike the answer of defendant Hospital Center on the ground of spoliation of evidence, and substituting therefor a provision granting plaintiff’s motion to the extent of directing that an adverse inference charge be given at trial with respect to the fetal monitoring data for 19 July 1997, as against defendant Hospital Center, and otherwise denying the motion; as so modified, the order is affirmed insofar as appealed from by defendant Hospital Center, without costs or disbursements.
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The 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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The Facts:

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

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

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

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

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

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

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

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

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

Henceforth, defendant’s motion to dismiss for failure to timely commence the action is granted and plaintiff’s motion for leave to file a late Notice of Claim is denied.
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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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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 Brooklyn 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 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 Long Island 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 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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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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A legal action was filed by a mother and his son who wants to recover damages for medical malpractice. The complainant’s demands an appeal from the order of the Supreme Court granting his opponent’s request of dismissing their complaint.

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

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

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

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

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

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

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

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

The court accordingly ordered that the judgment is reversed. The branch of the opponent’s motion to dismiss the complaint without any trial is denied and the order is modified appropriately. In addition, the court ordered that the appeal from the order is dismissed and the one bill of costs is awarded to the complainants.
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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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On June 4, 1953, the accused, a fraternal benefit association issued a certificate of membership in the amount of $4,000 to a postal clerk member of the New York Branch of the Association. While alive, he is entitled to participate in the benefits of the Benefit Fund in case he sustained various bodily injuriesthrough external violent and accidental means. The injuries should not be the result of his own vicious or intemperate conduct because it would wholly and continuously disable him from performing the duties of a Postal Transportation Clerk. If death shall result from such injuries alone within one year from the date of the injury, the Association will pay $4,000 to his step-daughter.

On March 31, 1962, while the contract was in force and effect, the postal clerk died. He was then 80 years of age and a patient at the Veterans Administration Hospital in New York. He had been confined for approximately 22 months prior to his death. Following notification of death and submission of proof by his stepdaughter and a refusal by the association to pay the benefit, the instant action was commenced. The association at trial conceded the existence of the contract and the status of postal clerk as its beneficiary. It denied and contested however the accidental death as defined in the policy.

Thus, the sole issue tried was whether or not the postal clerk’s death was caused by an accident within the meaning of the policy. The stepdaughter’s proof consisted of a death certificate and the testimony of a medical doctor. The death certificate issued by the Office of Vital Records of the Department of Health revealed that after an autopsy was performed, it was found out that the cause of death was Cerebral Arteriosclerosis caused by accidentally swallowing of sock. It was offered in evidence by the complainant to establish the cause of death of the postal clerk. In view of the association’s objection to accept the death certificate in evidence for such purpose, it was accepted by the Court only to establish the fact of death. A decision was reserved on its admissibility to show the cause of death. The medical doctor who testified had 36 years of practice and estimated treating about a thousand cases of cerebral arteriosclerosis during his career. He did not testify to treating the postal clerk during his lifetime or attending him at the time of his death or thereafter. However, the doctor stated that the death caused by suffocation due to the presence of a sock in a man’s pharynx is considered death by external and violent means.

Following this the stepdaughter rested her case. The association rested without offering any proof. It thereafter moved to dismiss on the ground that the stepdaughter failed to prove a case. The decision was reversed to await the submission of a memoranda which the court acknowledges and thanked the counsel for the scholarly excellence of their labors.

A threshold and crucial issue which the court must decide is whether or not a properly certified copy of a death certificate is admissible to establish the cause of death. If it is not admissible, the stepdaughter may not recover because of the failure of proof. If it is admissible, the stepdaughter has overcome the first and most formidable obstacle to obtain judgment.
Summarizing therefore, we see that if the death certificate is inadmissible in a given case to establish the cause of death, it is because of the rule of privileged communication which prevents disclosure of facts learned by a physician from a patient for the purpose of treatment or because of the hearsay rule. The former rule, however, may be waived in an appropriate case and the latter rule is profoundly affected by various statutes. In addition, it has been held that the facts disclosed on an autopsy are not subject to the privilege rule, since there is no confidential relationship between the autopsy surgeon and a deceased.

The association contends, however, that if the certificate is admissible to show the cause of death, it is equally admissible to establish other facts contained therein. While the Court do not quarrel with the proposition, it is subject to the limitation stated that such facts must be ones directly ascertained by the maker and of such a nature that a court is justified in accepting them. The association in Manhattan and Long Island claims that such facts appear in the certificate where it is indicated that cerebral arteriosclerosis was a contributing cause of death and such facts defeat the stepdaughter’s claim since an accident was not the sole cause. The finding of cerebral arteriosclerosis, which undoubtedly was ascertained as a result of autopsy which the certificate indicates was performed, appears on a part of the certificate not concerned with the immediate cause of death, but the secondary finding, which is held equally admissible, does not, however, militate against a conclusion that the sole cause of death was suffocation from a foreign body in the pharynx. It frequently happens that accident and disease are both present in cases arising under accident insurance policies, and the question arises as to whether death in such cases is caused by the accident or disease. The courts are agreed that, in the absence of any provision in the policy specifically controlling the matter, whether death is deemed caused by accident alone depends upon the factor of proximate cause. It follows from the general principle that if the insured is suffering from a pre-existing disease or infirmity at the time of an accident does not preclude recovery under the policy, and if the pre-existing disease has no causal connection with the harm suffered as a result of the accident and in no way produces the death or disability, or if the accidental injury has caused death or disability only and independently of the disease, then liability exists.

The stepdaughter was required to prove that since her status as beneficiary and the existence of the contract were conceded and the death certificate was admissible to prove the fact of death, she had to establish that her stepfather’s death by accident occurred within one year of the accident and not due to accidentally administered poison or any injury causing matter, that there are no visible external marks of injury and that death is not voluntary inflicted or a result of a surgical operation.

When death is shown to result from external violence, there is a presumption that it was due to accidental means, so as to support a recovery in the absence of affirmative proof to the contrary by the insurer since there is a presumption in the law against suicide. The policy denies coverage where death results from poison or other injurious matter taken or administered accidentally or otherwise. The clause like other exclusionary provisions is to be strictly construed, and in so doing there is no basis to deny recovery. A sock quite obviously does not come within the definition of injurious matter. Furthermore, the balance of the language used in this clause makes it clear that a sock was not intended to come within the definition of poison or other injurious matter since it could not be taken or administered.
In conclusion, the stepdaughter has met her burden of proof not contradicted by any evidence of the association. Judgment is in favor of the stepdaughter.
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