Articles Posted in Horners Syndrome

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On September 21, 1982, the complainant 32-year-old woman visited her accused gynecologist for her annual check-up. At that time, the gynecologist made note of a one-centimeter mass on the outside lower quadrant of the woman’s left breast which he tentatively classified as a galactocele or a milk-filled cyst, but no further tests were performed. Ten months later, the woman returned to her Manhattan gynecologist complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in the woman’s breast was diagnosed as cancer which had metastasized or spread, to three ribs and two vertebrae. The woman died nearly two years later, as a result of the extensive metastasis of the cancer leaving as the sole beneficiary of her estate her then four-year-old daughter.

At the time her condition was first diagnosed, she was in the process of obtaining a divorce from her husband who contributed nothing toward her own or her child’s support. Although after the birth of her daughter, she had discontinued working outside the home, she was certified as a teacher for kindergarten through twelfth grade and had been a permanent substitute teacher in the Lawrence school district for one and one-half years prior to her daughter’s birth. She held undergraduate degrees in art education and psychology and was working toward obtaining an advanced degree in psychology in preparation for a child psychology program. She had always been a very self-sufficient and independent person. She had fully participated in the daily activities of her child. Because of her rapidly deteriorating physical condition and the negative effects of the medical treatment, the woman’s life changed to a tragically radical degree. She initially underwent two months of hormone therapy which was discontinued when she stopped responding. She began experiencing excruciating pain in her right leg which was determined to be caused by an additional lesion. She was then placed on a program of pain killers including morphine and methadone which her treating physician testified only dulled the recognition of pain in the brain but did not eliminate the pain. She also received a combination of five chemotherapy drugs which caused debilitating side effects. She became constipated, weak and tired, suffered from insomnia and began losing weight at the rate of two or three pounds per week. Her bones became very brittle and she was warned by her physicians to be very careful to avoid breaking them. In fact, she had to be hospitalized on three separate occasions for hypocalcaemia which is an elevation of calcium in the blood causing sleeplessness, lethargy, confusion, difficulty in walking, severe dehydration and ultimately death. The continuous vomiting caused by the chemotherapy resulted in dental infections and the loss of six teeth which she had to have extracted with only a minimal amount of novacaine due to the chemotherapy.

The Queens woman became a virtual invalid. She relied on a homemaker, her friends and family to care for her child, to shop for her, to clean her house, to prepare meals and to drive her to the hospital. She had no physical strength. She was too weak to pick up her daughter or to perform any type of housework. Moreover, because of her weakened bones, she was afraid to go to any crowded places such as a train station or shopping mall for fear of being hit in her ribs or vertebrae. In any event, she was physically unable to shop for herself. Her social life became nonexistent.

Perhaps the more difficult pain for her was the emotional and psychological pain she suffered as a result of the loss of control over her life, the changed attitudes toward her of her family and friends and the strain of her illness on her relationship with her daughter. Her daughter was greatly affected by her illness and had difficulty understanding why her mother could no longer participate in activities with her. While she arranged for her daughter to be raised by her brother and sister-in-law who have three sons, she was saddened that she could bear no other children to provide brothers and sisters for her daughter.

In view of the woman’s extensive losses and suffering, the aggregate award on the first cause of action was well within the bounds of reason. The question remains whether, notwithstanding the reasonableness of the award, the trial court correctly included in its instructions on damages, a separate instruction on loss of enjoyment of life. The trial court’s instructions to the jury were entirely proper.

The complainant commenced an action to recover damages for conscious pain and suffering and wrongful death. The woman’s gynecologist and his professional corporation are charged with various acts of medical malpractice stemming from his failure to properly diagnose the woman’s breast cancer and to provide appropriate medical care and treatment. The jury, after finding the accused 90% liable and the deceased woman 10% contributorily negligent, rendered award of damages, in accordance with the court’s instructions and special interrogatories.
The accused gynecologist immediately moved to set aside the verdict on the grounds that as to liability the verdict was against the weight of the evidence and inconsistent. The gynecologist further charged that the damages awarded for the injuries were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the complainant. The amount of the judgment with interest, costs and disbursements totaled $845,772.59.
The accused gynecologist’s appeal, arguing that the verdict as to liability is against the weight of the credible evidence adduced at the trial, the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and the awards to the woman’s child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.

The trial court’s denial of the accused gynecologist’s motion to set aside the verdict in favor of the complainant as against the weight of the evidence is affirmed. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence. On such a review, the evidence must be viewed in a light most favorable to the complainant to determine whether a sufficient rational basis exists to support the jury’s finding of liability as to the accused.
One of the key issues in controversy at trial was whether the lump that the gynecologist first noticed in the woman’s breast in September 1982 was the same as the cancerous tumor surgically removed from the woman’s breast one year later. Apparently because of the woman’s history of being cystic, the gynecologist was not overly concerned about the lump upon its initial appearance. According to his trial testimony, after making a tentative determination that the lump was a one centimeter galactocele and making a diagram indicating the location of the lump, he advised the woman to return for a follow-up examination in two or three months. He conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the woman to examine her breasts during the intervening period. His office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to the woman.

In the course of the woman’s examination before trial, conducted prior to her death and read into the trial record in pertinent part, she testified that her gynecologist had found her to be in good health at the time of her checkup in September 1982 and told her to return in a year. Discovery of a painful lump and swelling under her left arm prompted the woman to return to her gynecologist. During that examination, she saw a diagram in her file with an X where the lump was. To her surprise, her gynecologist had been aware of the lump, identified it as a cyst and reassured her that he was watching it. No recommendation was issued that a mammography be performed or another physician be consulted. Her doctor simply prescribed vitamins and instructed her to return after her next period. Only later when she consulted the surgery doctor, upon her gynecologist’s recommendation did she learn the gravity of her condition. The surgeon was able to confirm the presence of cancer after only a brief examination because the skin in the area of the lump had a dimpling effect resembling the skin of an orange when it was palpated in a certain manner. Owing to the advanced nature of the cancer, a lumpectomy rather than a mastectomy was later performed. Following surgery, the woman was placed on a regimen of hormonal therapy and later chemotherapy.
The gynecologist’s expert evidence consisting of the testimony of a specialist in obstetrics and gynecology, and a pathologist, was presented to refute the allegations of medical malpractice. The accused parties’ experts were consistent in their opinion that although the lesion which was palpated in September 1982 was in the same location as the tumor removed in September 1983 the former did not lead to the latter. The basis for the opinion was the theory of doubling times which refers to the growth rate of tumors. According to the doubling times concept of oncology, a tumorous mass hypothetically doubles in size every 60 days. If the theory were followed in its strictest sense, the woman’s September 1983 tumor would not have been palpable in September 1982. However, the accused parties’ experts agreed that studies measuring the growth rate in the human breast as opposed to the laboratory have shown doubling times ranging from 20 to 209 days. The gynecologist expert also conceded that the failure to take any measures following the discovery of a lesion in the woman’s breast in September 1982 would have been a departure from accepted medical practice. His opinion that the woman’s gynecologist had acted in accordance with accepted medical standards in the community stemmed from his rejection of the woman’s statements that her gynecologist did not tell her about the lump.

With due deference to the jury’s determination based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, we cannot say that the evidence so preponderant in favor of the gynecologist that the jury could not have reached their conclusion upon any fair interpretation of the evidence. Viewing the entire body of evidence, it was entirely plausible for the jury to conclude that the lesion noted in the woman’s medical record in 1982 developed into the malignant tumor removed in 1983 and to find that the gynecologist was negligent in failing to order tests or to follow up his initial examination to check the condition of the lump. The total verdict reflected a thoughtful evaluation of the evidence and not merely a determination, as the gynecologist suggest, which reflected an overriding sympathy for the woman’s infant daughter. Therefore, the verdict as to liability must stand.
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The complainant woman gave birth to her childat the accused hospital. The hospital’s obstetric gynecologist delivered the child vaginally. The child, who had high birth weight at the time of birth, suffered birth injuries which include Erb’s palsy/brachial plexus injury during delivery. The accused female physician who is an employee of the hospital’s medical practitioner had provided most of the woman’s prenatal treatment up to her last visit. The medical practitioner was the last physician to treat the woman prenatally when he treated her prior to delivering the child the next day.

The Long Island woman and her child commenced the action alleging that the female physician deviated from accepted medical practice when, after estimating the child’s fetal weight on to be 3700 grams, she failed to recommend delivering the child by cesarean section rather than vaginally. The female physician alleged that the woman’s gestational diabetes increased the likelihood that, at birth, the child would be of a large size, thus warranting a cesarean section, and that the injuries suffered by the child could have been prevented had she been delivered by cesarean section. The female physician moved for summary judgment to dismiss the complaint as asserted against her. In an order, the Supreme Court denied the motion, concluding that the triable issues of fact existed however, the female physician appeals.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage. An accused physician moving for summary judgment in a medical malpractice action has the initial burden of establishing legitimate complaint, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries.

The female physician met her initial burden of demonstrating that she did not deviate from accepted medical practice in declining to recommend that the woman deliver the child by cesarean section, through her expert’s affidavit, in which the expert opined that, as of the last date of treatment of the woman, the female physician correctly estimated the fetal weight of the child at 3700 grams, which was below the threshold of macrosomia and, thus, given that the woman’s gestational diabetes was under control and her pregnancy otherwise normal, delivery by cesarean section was not indicated. Further, the female physician demonstrated that her alleged medical malpractice was not a proximate cause of the complainants’ injuries, through evidence showing that the woman’s condition had dramatically changed during the several days after her last visit with the female physician. Specifically, during that time period, she gained 4.5 pounds and, by the time of her subsequent visit with the obstetric gynecologist, he decided to deliver the child vaginally despite observing shoulder dystocia in utero during labor.

In opposition to the female physician’s legitimate showing, the woman and her child failed to raise an issue capable of trial of fact. Since the expert affidavits they submitted were conclusive, speculative, and without basis in the record, they were insufficient to defeat summary judgment. The Supreme Court should have granted the female physician’s motion for summary judgment to dismiss the complaint as against her.

In an action to recover damages for the medical malpractice, the female physician appeals from an order of the Supreme Court. The Supreme Court ordered that the appeal from so much of the order as denied the application to direct the woman’s expert witness to submit to a hearing and, is dismissed on the ground that such portion of the order is not appealable as of right. The Supreme Court ordered that the order is reversed insofar as reviewed, on the law, and the motion of the accused Manhattan female physician for summary judgment to dismissing the complaint as asserted against her is granted; and it is further ordered that one bill of costs is awarded to the appellant, payable by the complainants.
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On 3 April 2008, a detective filed a misdemeanor complaint against defendant and charged her with Endangering the Welfare of a Child.

The detective or the deponent, in pertinent part, the factual portion of the complaint, alleged: deponent is informed by a doctor (the informant) of a hospital that, on or about 30 March 2008, at approximately 6:00 p.m., the defendant brought her 17-month old son at the hospital to be treated for a burn injury where defendant also stated that her 3-year old son was also burned with an iron at their residence; deponent is further informed by informant that he examined and observed a second degree burn, that was at least 2-3 days old, 6 inch long and 1 inch wide on the child’s left thigh, and that, defendant’s story of how the burn occurred is not consistent with the child’s injury; deponent is further informed by the informant that the above described actions caused the child to suffer substantial pain, to fear physical injury and to become alarmed and annoyed; deponent is further informed by defendant that the child’s date of birth is 19 October 2006.

The People did not answer ready for trial.

Subsequently, defendant was arraigned and assisted by a court-appointed interpreter of the Urdu language.

Defendant has moved for an order dismissing the accusatory instrument on the grounds that her speedy trial rights pursuant to Criminal Procedure Law have been violated. The People oppose the motion. Thereafter, several adjournments of the case were made.

The Ruling:
Under New York’s readiness rule, when a defendant is charged with at least one non-felony offense punishable by more than three months of incarceration, the case must be dismissed when the People have not answered ready for trial within 90 days of the commencement of the action in The Bronx and Brooklyn.

Here, defendant is charged with Endangering the Welfare of a Child which is a “class A” misdemeanor and is punishable by up to one-year imprisonment. The time-limit in this matter is 90 days from commencement of the action. The action was commenced on 3 April 2008 when the People filed a complaint in criminal court.

As a rule, defendant bears the burden of going forward, by sworn allegations of fact, to show that there has been an inexcusable delay beyond the time allowed by the statute. Once the defendant meets his burden, the People have the ultimate burden of justifying that delay.
A review of the defense motion papers, the People’s response, the court file and minutes of several proceedings discloses that the periods of delay are attributable as follows:

The entire adjournment from 3 April 2008 through 20 May 2008, 47 days, must be charged to the People. The adjournment was ordered to enable the People to convert the complaint by serving and filing a supporting deposition of the doctor (the informant). The People served and filed that supporting deposition off calendar on 18 April 2008. However, the People did not serve and file a certificate of translation to establish that someone fluent in defendant’s language, Urdu, translated the admissions that the defendant allegedly made to the doctor and the admission that the defendant allegedly made to the detective (the deponent).
On 20 May 2008, defendant raised her lack of understanding of the English language as well as the lack of understanding of the doctor and the detective of Urdu. The People have not contested those assertions. Under such circumstances, the court has the authority, at the pleading stage of the case, to require that the People to remove the cloud over the facial sufficiency of an accusatory instrument by submitting proof in the form of a certificate of translation that defendant’s alleged admissions were translated from Urdu to English by someone capable of making those translations.

In cases where a defendant’s alleged admissions are crucial to the facial sufficiency of an accusatory instrument, as the case here, the fact that the admissions were not given in an English-to-English-only-informants calls into question the substance of the admissions. Indeed, translations of a defendant’s alleged admissions to an unavailable translator cannot be admitted in evidence unless there is proof that the translator was an agent of the defendant for that purpose and there was no motive to mislead and no reason to believe the translation is inaccurate.

Here, the absence of a certificate of translation covering the alleged admissions of the defendant referred to in the complaint are latent defects that do not establish elements of the crime charged by facts of an evidentiary character. Without defendant’s alleged admissions, the accusatory instrument does not show that the defendant engaged in conduct likely to be injurious to the child which is an element of the crime.

It is true that medical records of a hospital are business records and, if certified, satisfy the rule against hearsay and entries in such records that contain statements by a patient or the parent or guardian of a patient are made to assist medical personnel in diagnosing and treating an ailment, i.e., medical history, are an exception to the hearsay rule. Nonetheless, the issue here is the identity and translating credentials of the doctor who translated the admissions to the informant doctor. While it may be presumed from the circumstances that the doctor interpreted the defendant’s alleged statements to the informant doctor, the medical records do not attest to the fluency of the doctor-translator in the Urdu language. Indeed, the medical records do not even refer to the language in which the statements were made, or for that matter, that spoken words were involved. For all the court knows, the doctor-translator had interpreted the defendant’s hand gestures. This fleeting reference to interpretation hardly approximates the content of a certificate of translation, which must assure the court that the translator was capable of giving an accurate English translation of the non-English speaking individual’s statement(s) and did so.

Thus, the court cannot conclude that the statements attributed to the defendant in the complaint are an accurate or even near accurate English translation of what the defendant allegedly said to the doctor and the detective. Accordingly, the court holds that the defendant’s alleged admissions contained in the complaint were not fully corroborated when the People served and filed off calendar a statement of readiness for trial. As a result, the statement of readiness was a nullity, and the entire adjournment, 47 days, is charged to the People.

The adjournment from 20 May 2008 through 10 July 2008, 51 days, must also be charged to the People because they did not serve and file a certificate of translation.

The adjournment from 10 July 2008 through 29 July 2008 is not chargeable to the People because it was ordered to enable the People to reargue the court’s previous ruling that a certificate of translation was required to convert the accusatory instrument into an information. The delay was an extension of the adjudication of the defendant’s demand that a certificate of translation be filed.

The adjournments from 29 July 2008 to date are not chargeable to the People because they were ordered to enable the defendant to serve and file the instant motion, for the People to respond and for the court to render a decision.

In sum, the People must be charged for a total of 98 days of speedy trial time which exceeds the statutory time-limit of 90 days, defendant’s motion for an order dismissing the accusatory instrument is granted.
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