Articles Posted in Labor and Delivery Negligence

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The prohibition of marijuana is a hot topic of discussion these days. Since, many tests have demonstrated that marijuana is less toxic to a body than either alcohol or tobacco, many people are interested in eliminating the prohibition that makes it illegal. In recent years, many states have taken action to decriminalize the personal use of marijuana. The use of this substance has been proven to have many beneficial medicinal effects. Preventing citizens from having access to a natural medicine that has very few side effects seems ridiculous. However, much like alcohol was at one time prohibited, marijuana is not prohibited. Anyone who uses marijuana, even if they only use it once, is found guilty of a criminal offense. In some states, there is so much marijuana seized by local law enforcement agencies that it is no longer sent to the state crime lab to be tested and verified. The local agencies test it themselves with a simple test before they dispose of it. So with so much political upheaval associated with the personal use of marijuana, how does the use of this substance affect the parents who engage in ingesting it? For some people, they claim that they use it to self medicate for numerous psychological and physical maladies that artificial drug company produced legal drugs cannot compete with for effectiveness. There are several ways that a person may use marijuana to relieve physical pain or anxiety. One way that has been popular in home remedies since the early 1700’s before marijuana became an illegal substance, was to steep the leaves in vinegar to be applied topically for arthritis or muscle pain. Other people eat the leaves as a way to gently reduce anxiety or increase appetite. However, even these non-recreational uses of the herb is prohibited by law in most states.

What happens to an otherwise normal law abiding citizen who is found guilty of personal use of marijuana? In most states, the answer to that would be that they would be issued a ticket like a traffic ticket and would have to appear in court. They would then be given community service or a fine if they are found guilty. However, what if that same person delivered a baby in a hospital in New York within thirty days of ingesting marijuana? The child is taken away from them and put into foster care.

That is what happened to one mother in November of 2010, the mother gave birth to a healthy baby boy in Brookdale Hospital in Manhattan. He had excellent Apgar scores and exhibited no problems or illnesses. Shortly after the birth, the mother was notified that both she and the baby had tested positive for marijuana and that a child neglect report was being filed with the state. Although, the hospital could not show that the marijuana had caused any risk to the mother or the child, the baby was removed from her care and her other six children were taken as well. The mother was charged with derivative neglect of her other children because the Administration for Child Services in New York determined that the mother had eaten some marijuana to calm her nerves several days before she delivered her baby.

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When a new mother considers her birthing options, she is often drawn to the home birthing option. No one likes to go to a hospital, and everyone is more comfortable in their own homes. The thought of being able to bring your new childinto the world in the warm environment of their home is an attractive notion for many women and their families. The argument is often raised that women all over the world have babies at home every day. Women have been giving birth to babies for thousands of years without hospitals. This argument leaves out the mortality rate associated with the babies that are born in these other countries, in the past, and at home. A home birth is a wonderful option for an experienced mother who has delivered children previously without difficulty. If there is any chance that a complication may arise in the birth, the safest place for the woman to deliver is in a hospital where she and the infant can obtain the best quality emergency medical care. The safety of the child or children should be the most important factor in deciding the location where a mother will deliver her child.

That was not the case when in December of 2003, a woman in New York decided that she wanted to have a home birth with a midwife. She chose the company called My Midwife to handle her pregnancy. On January 28, 2004, the midwife performed a sonogram evaluation of the woman and discovered that she was pregnant with twin infants. Rather than seeking more specialized medical attention for what is commonly considered a high risk pregnancy, the midwife continued to care for the mother in her home. On June 24, 2004, during an examination, the midwife determined that one of the baby boys heart rates was slowing down. She accompanied the mother to Nassau University Medical Center where they reexamined the mother. They were not able to detect any problem with the baby’s heart rate; however, they advised the mother that that her pregnancy was considered a high risk pregnancy and that they felt that the best action to take would be to admit her into the hospital. They suggested that with admittance to the hospital, they would appoint a high risk pregnancy specialist to take over the woman’s case and to delay delivery as long as possible. They informed the mother that the best course of action when delivering twins is to deliver them in a hospital setting as they commonly have more complications than single pregnancies. The mother conferred with the midwife and determined that the midwife did not have birthing privileges at that hospital. She also discovered that the midwife was not certified to deliver multiple babies. The midwife told her that she would have someone who was certified to deliver multiples present at the birth and the mother left the hospital with the midwife.

Over the next week, the midwife made contact with a nurse practitioner who was qualified to deliver twins. However, she was invited to the birth as an observer. On July 1, 2004, the mother went into labor at home. The midwife arrived along with the nurse practitioner, and one of the owners of the midwife company. The birth was video taped. One baby was delivered with little difficulty, but his brother was born dead. The mother filed a wrongful death suit when she discovered that the midwives and their company did not have the capability of monitoring the heart rates of both babies during the birth.

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Medical malpractice lawsuits can be sought for many different reasons. Some of them involve birth injury, and some, like the present case involve the care of the elderly. Elderly care homes in New York are governed by many laws, the application of these laws can differ depending on the court system. When a party to a case feels that the rights of one of the parties has been violated, or the laws in the case have been misapplied, it becomes the job of the Supreme Court to evaluate the outcome and decide if the case needs to be reviewed.

In February of 2009, an elderly woman was living as a long term patient of a nursing home in Rochester, New York. One of the issues that placed her in the care of the home involved a bladder problem. This woman was unable to void her bladder without the assistance of a catheter. Therefore, every day, she had to wait on one of the staff of the home to come and help her to urinate. One night, the staff member failed to come to the aid of the woman. She was desperate for relief and decided that she would exit her bed by herself and attempt to go to the bathroom. When she stood up from her bed, her bladder released causing a puddle on the floor of her room near her bed. She slipped in the puddle and suffered from severe injuries including broken bones. She was not treated for her injuries until her son in law arrived several days later. Her son in law is a doctor. When she told him about the injury and that she was in horrible pain from it, he had her transported by ambulance to the hospital. It was only at that time, that the extent of her injuries were revealed. Her family was distraught that their mother had not received the minimum standard of care that was expected. They filed a medical malpractice lawsuit in her behalf. They used as a standard for their contentions that the public health laws had been violated a case that involved another patient of a long term care nursing facility.

This woman was a young woman who was in a persistent vegetative state. The case is referred to as Doe. The reason that her mother filed a lawsuit alleging violations of the public health laws was that her daughter had been injured in an automobile accident. She was in a persistent vegetative state when it became apparent that she was pregnant. Since she had been a resident of a long term home for more than a year at that point, it was obvious that she had been raped while in their care. She delivered a baby boy by caesarian section. DNA evidence was used to determine which employee of the facility had raped her. Her mother’s contention was that her daughter did not receive the minimum standard of care for a patient in her condition as evidenced by the fact that one of the staff had raped and impregnated her. She proved her point and won her lawsuit. The case is now used as a precedent for nursing home violations. The public health law was instituted to prevent the types of abuses that were evidenced in the current case and the case of Doe. In order to insure that our loved ones who by necessity are bedridden and in a long term home facility, laws that govern insufficient care are important. Nursing homes must be accountable for any abuse or neglect that may occur on their property. However, because the laws are so complicated as they relate to nursing home abuse, it is important for anyone who believes that their loved one has been treated inappropriately to contact an attorney in Brooklyn or Long Island.

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The Facts:

The infant’s mother was under the care of East Bronx Medical Group during her third pregnancy. On 2 April 1969, at about 11:30 P.M., she was admitted to Bronx Lebanon Medical Center in the early stages of active labor.

Doctor-one of the Medical Group determined late in the mother’s pregnancy that her uterus may have been developing larger than normal. X-ray studies ruled out any congenital abnormality or multiple births. Clinical pelvimetry, which is an internal examination of the dimensions of the pelvic canal, revealed that the intertuberous measurement was 8.0 centimeter which indicated that the mother had an adequate pelvis for the delivery of a child. Moreover, the mother had already given birth to an average-sized baby without any difficulty.

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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.

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A 41-year-old physician and mother of one went into labor after an uncomplicated pregnancy. When notified at the onset of labor, a specialist in obstetrics and gynecology who had delivered the woman’s first child directed the expectant parents to the Physicians’ Hospital.

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

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

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

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

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

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This is an action sought by the defendants for the court to dismiss the complaint based on a summary judgment. The infant plaintiff, represented by her mother and natural guardian, sought to recover damages for personal injuries allegedly sustained by the infant plaintiff due to lead poisoning, negligence and medical malpractice committed by the defendants. The court dismissed the complaint and ruled in favor of the defendants.

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

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

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Plaintiff is 25 years old, married, with two young daughters. She was employed as a secretary at a Hospital. On 29 March 2006, she was approximately three months pregnant, with twins, and was on her way to the Hospital, not to work, but to see a doctor (“the doctor”) whom she had seen three times before. On her way, plaintiff was a passenger in a vehicle owned and operated by defendant-one when it collided with a vehicle owned by defendant-two and operated by defendant-three. After the collision, she was taken to the Hospital where she works by an ambulance.

Allegedly, plaintiff experienced some contractions at the scene of the accident and was contracting at the hospital. She was released that day, after the contractions ceased. According to a report by the doctor, incorporated with several others and adopted as accurate and true, on the day of the auto accident, plaintiff was determined to be unable to work and not expected to be able to perform usual work until 18 of May. In another report, the doctor asserted that plaintiff was totally disabled or unable to work from 29 of March to 17 May 2006. On 7 of June, she was again determined to be unable to work because of preterm labor twin gestation. Under restrictions, the doctor wrote “Bedrest Complete disability”. It was estimated that she would deliver on 14 of October.

On 9 or 10 of July, however, plaintiff returned to the Hospital. She was admitted and remained there until after the delivery of her twin daughters by emergency caesarian section on 31 of July. The doctor’ reports the diagnosis as “Preterm labor, Twin gestation.” The twins remained in the hospital in Manhattan until 10 and 14 of September, respectively.

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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.

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