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.

The Queens mother agreed to drug treatment and upon completion of the mandatory drug treatment program, her children were returned. Several months later, the mother tested positive for marijuana again. She claimed that she had smoked one marijuana cigarette at a party. The state filed an accusation to remove the children again. The court was called upon to determine if this was an appropriate response to an offense that would not even be considered criminal in most states. The court determined that the state had not made a sufficient case to show that the actions of this mother had been detrimental in any way to her children. The case was dismissed.
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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.

The mother later learned that if she had delivered in the hospital, the staff would have been able to monitor both infants. They would have been able to determine that one of the infants was in trouble and an emergency caesarian section could have been performed to deliver the twins faster, which probably would have saved the life of the second infant. The mother named the midwife, the midwife company, and the nurse practitioner in her wrongful death suit. The nurse practitioner filed a motion for the court to order a summary judgment in her case.

She contends that she was invited to the birth only as an observer and that she should not have been attached to the lawsuit in the first place since she is not even an employee of that company. The mother disagrees. She claims that the nurse practitioner took an active role in the birthing process and with the newborn infants. The mother claimed that the nurse practitioner took charge of the second twin as soon as he was born and began life saving actions in an attempt to resuscitate him. The mother contends that the nurse practitioner and the others were guilty of medical malpractice in that they assured her that the home delivery would be fine in spite of the fact that there had been a previous incident of the child’s heart rate slowing. She contends that when she was at the hospital that time, the midwife who had gained her trust had assured her that there was nothing to worry about because the child’s heart rate had stabilized. She contends that these people deviated from the standard of medical care in that they did not advise her to go to the hospital or that the delivery was any more dangerous than any other delivery.

The nurse practitioner produced a doctor who stated that the nurse practitioner did not have any contact with the mother during the prenatal process or examinations. Her contention that she was only there as an observer and to video tape the delivery was used as a reason for granting her summary judgment that she held no liability in this case. However, as other medical experts took the stand, it became clear that the nurse practitioner was responsible for much more than video taping and observing. In fact, the midwife company could not have legally performed the home birth of the twins at all if they had not had the cooperation and assistance of the nurse practitioner who was certified to deliver twins. Therefore, much of the ultimate responsibility for failing to call an ambulance for the woman when it became clear that there were problems with the delivery fall directly into the lap of the nurse practitioner as the only one present who was certified to deliver twins.

The nurse practitioner attempted to wrap herself in the protections of the Good Samaritan Law by stating that she was only a volunteer and that any steps that she took to intervene in the birth were taken with good intentions and that she should be removed from liability of medical malpractice based on this contention. The court did not agree. The court determined that the nurse practitioner took an active role in the birth and attempts to resuscitate the stillborn infant. She was the one who was certified to deliver twins and the other professionals on the scene were dependent on her expertise. Summary judgment to detach her from the suit is not granted.
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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.
Present in the delivery room and attending to the mother were doctor-two, the patient’s private obstetrician and a member of the Medical Group, and doctor-three, a second-year resident who had performed 150 deliveries, a third of which were forceps deliveries.

At the delivery room, within two hours of labor, the head was engaged; and within three hours, the cervix was fully dilated, was completely effaced and the membranes ruptured. At this point, doctor-two and doctor-three found no abnormality and they found no reason that the fetus could not be delivered by normal vaginal delivery. Fetal distress was noted at 2:23 A.M., the umbilical cord was found wrapped around the child’s neck, a probable cause for the fetal distress. The fetus was low down in the pelvis, in a face up position rather than the more common face down position. Several unsuccessful attempts were made to manually rotate the fetal head and, since time was of the essence, doctor-two decided that a mid-forceps delivery was necessary. Doctor-three agreed with the decision. Doctor-three used the forceps under the supervision of doctor-two and the fetal head was delivered by intermittent traction and relaxation in an attempt to simulate the normal uterine contractions. Doctor-three testified that he had to exert more force than usual to deliver the head in the face up position, but used no more force than was necessary. On delivery of the head it was discovered that the umbilical cord was wrapped around the neck and that the child was cyanotic. The umbilical cord was removed and gentle manual traction was applied to the head in an attempt to deliver the rest of the fetus. However, it was then observed that the shoulders were not being delivered; they were impacted, a condition known as shoulder dystocia. The right shoulder had overridden the public bone and was obstructed by it, preventing delivery. Because the baby was partly delivered, a Caesarian Section at this point was impossible. The child had to be delivered vaginally and, since the child had difficulty breathing, his shoulder had to be freed within a few minutes. In this situation, doctor-three applied gentle traction to the head to extract the child, each physician attempted to rotate the shoulder by the corkscrew method, that is, the manual rotation of the fetus, and doctor-two applied fundal pressure, that is, downward pressure on the mother’s abdomen, and doctor-three inserted his hand to accomplish the delivery of the posterior shoulder (left) first, permitting the right shoulder to slip under the public bone.

As a result, the baby sustained a 2mm depressed occipital fracture, injury to the upper and lower brachial plexus, and a fractured clavicle which healed.

Thereafter, a medical malpractice action ensued on the basis of the birth injury or birth injury accident suffered by the infant plaintiff.

The jury awarded to the infant plaintiff the sum of $300,000 for birth related injuries and to the infant’s father the sum of $50,000, reduced on consent to $25,000, for loss of services.

The jury found that several departures were the proximate cause of the injuries.

The Ruling:

The failure to do an x-ray pelvimetry was not a departure from accepted medical practice and did not cause the infant’s injuries. X-ray pelvimetry is a technique used to compare planes of the pelvis with the size of the fetal head. The record reveals that an intertuberous diameter of 8.0 centimeters does not indicate a need for x-ray pelvimetry. Its use would have been futile as the record reveals that for labor to progress there had to be no cephalo-pelvic disproportion. Indeed, the mother had been pregnant twice before and delivered once and had never had pelvimetry performed. Furthermore, shoulder dystocia cannot be forecast by x-ray pelvimetry, or any other diagnostic tests, thus, such procedure would not have avoided the problem. There is no explanation as to why the dystocia occurred.

The court finds that the jury’s decision is against the weight of the credible evidence that there was malpractice in allowing labor rather than performing a Caesarian section.

Where alternative procedures are available to a physician, any one of which is medically acceptable and proper under the circumstances, a physician cannot be held liable for malpractice when he uses one of two acceptable techniques. There is a much higher risk of death to the mother when the delivery is by Caesarian section rather than by vaginal delivery.
Moreover, the court does not find any medical malpractice in the use of the forceps to deliver the child in the face up position. There was no deviation in the type of forceps used or in the actual application of the forceps. Plaintiffs’ expert even admitted that the use of forceps was justified in the presence of fetal distress and that the type of forceps used was proper.
Here, it cannot be said that excessive force was used to deliver the shoulder merely because the child was delivered with palsy, a known complication of dystocia. Presence of an injury does not mean that there was negligence.

Furthermore, the failure to obtain the mother’s consent to have doctor-three deliver her baby under the direct supervision of doctor-two should not have been given to the jury. Doctor-three was a resident and it was the custom at that hospital for all the obstetricians to allow residents in their training, especially in the advanced stages of their training, to do complicated deliveries. The plaintiffs continually tried to make a distinction at the trial as to the standard of care rendered a private patient and a service patient. There is no difference. As far as the consent issue is concerned, the mother, by going to Bronx Lebanon, consented to the customs and practices of that hospital. The real issue concerning doctor-three was whether he caused any of the injuries which would not have occurred had the mother not wanted him there. Doctor-two stated that even if the delivery had been attempted alone he would have needed assistance when the emergency arose.

Also, the argument that a Caesarian section could have begun in five minutes is against the weight of the credible evidence. The attending physicians did not see the need to subject the mother and the baby to the risks of a major surgical procedure. The court finds no support for the jury’s finding that the failure to do x-ray pelvimetry caused the injuries suffered by the infant.

The other findings of malpractice are against the weight of the credible evidence. Thus, the judgment is reversed and a new trial is proper.

The court did not reach and have not considered the claim of excessiveness. The reduction referred related only to the $50,000 awarded for loss of services which has been reduced by the Court, upon plaintiffs’ consent, to $25,000.

In sum, the judgment for plaintiffs against defendants is reversed, on the law and on the facts, as to defendants-appellants East Bronx Medical Group, doctor-two, doctor-one and another doctor, and the matter is severed as to said defendants and remanded for a new trial; the portion of the judgment dismissing the complaint as to the defendants Bronx Lebanon Medical Center and doctor-three is affirmed.
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A woman of foreign descent was pregnant with twin boys. She gave birth at a public hospital owned and managed by the City of New York on October 25, 1981. The twins were born prematurely at seven months’ gestation only. One of the twins was brought to the newborn nursery of the public hospital where he stayed until he was discharged on December 23, 1981.
One month after the son’s birth, the boy’s left thigh swelled. He underwent x-ray and it was discovered that the thigh bone was fractured. The doctors at the public hospital repaired the fractured thigh bone. The doctors put a cast on the left thigh until it healed. The child recovered.

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

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

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

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

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

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

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

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

Because of the vagueness of the claims, it is impossible to presume that the City of New York had notice of the claim from its possession of the child’s medical records. It would be highly prejudicial to the City of New York to make it defend itself against the vague claim after nine years had passed. It would be difficult if not impossible for the City to investigate the truthfulness of the claim.
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A 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.

During the steady drip of eight to 10 drops per minute that continued up to delivery more than one hour later, three notations were recorded in the hospital record relating to the patient’s contractions and the fetal heart rate. According to the record, just after administration of the oxytocin, contractions were two to three minutes apart and moderate, and the fetal heart rate was 132; at 2:30 A.M., contractions were still moderate and coming every two to three minutes, and the fetal heart rate was 136; and at 2:45 A.M. the patient had contractions and was and the fetal heart rate was 136. Apparently these were the only recorded entries, all made by the Nurse who, while she claimed that she monitored the patient every 10 minutes, nevertheless admitted at trial that she was in and out of the delivery room as she prepared the patient for delivery.

As for the attending physician, he maintained that up until 2:45 A.M. he monitored the patient many times (notwithstanding the fact that the Suffolk Code required a physician to maintain continuous observation when a potentially dangerous drug like oxytocin was administered). Indeed, upon further examination, the doctor admitted that at this time he went to the cafeteria on another floor, where he talked with the attending anesthesiologist, and the patient’s husband, a second-year resident physician. The attending physician stated that he was in the cafeteria for five minutes, which estimate later became five to 10 minutes, and he eventually conceded that it could well have been 20 minutes. When he left the cafeteria, he did not go back to the labor room but instead monitored the patient from the hall across from the labor room.

At approximately 3:00 A.M., the woman was wheeled to the delivery room with oxytocin still being administered to her. The anesthesiologist gave her general anesthesia. During the 15 minutes or so in the delivery room prior to birth, the Nurse did not monitor the fetal heart rate. The anesthesiologist who admitted that it was his responsibility to monitor the fetal heart rate while the mother was in the delivery room so as to be able to correct any condition of hypoxia, the deprivation of oxygen to the brain, admitted on cross-examination that he did not listen to the baby’s heart rate during the time it was in the mother’s womb.

The infant was born by normal spontaneous delivery but in obvious respiratory distress. The hospital record noted that at one minute after birth the baby had absolutely no muscle tone, no reflexes, no respiration, slight cyanosis (bluishness) and a heart rate of 160, resulting in an Apgar score of roughly 3 (optimal 2 for each component, maximum score of 10). The attending physician who testified that resuscitation was beyond his field of expertise, cut the umbilical cord and directed his attention to delivering the placenta (found to be normal), as well as repairing the episiotomy. He turned the care of the child over to the anesthesiologist and the Nurse.

The anesthesiologist maintained that after taking the Apgar score one minute after birth, he suctioned the baby’s airway with a laryngoscope to clear it of obstructions. Although qualified to insert an endotracheal tube, he began, anywhere from one to two minutes after birth, resuscitation by means of an ambubag, comprised of a mask that fits over the infant’s mouth and a tube connected to the oxygen supply. According to him, he placed the baby on the mother’s chest, stood at the head of the delivery table, reached over the mother and with one hand holding the child, used the other hand to hold the mask on the child’s face, to squeeze oxygen into the child’s mouth, and to monitor the resuscitative efforts. The doctor’s notations in the hospital record indicate that the child, suffering from protracted apnea (absence of respiration), began crying four minutes after birth, at 3:20 A.M. He testified that the infant breathed two to three minutes before that. He allegedly cared for the infant between two and 10 minutes, after which the baby was placed in an incubator. On cross-examination, however, the doctor claimed that the infant was in the incubator during all his resuscitation efforts. He denied ordering the drug nalline for the child (although his counsel conceded as much on summation), and could not remember giving the nurse any instructions as to the resuscitation of the child.

On the other hand, according to the Nurse who had no special training in resuscitation, it was she who did the initial suctioning with a mucous trap, then placed the child in a crib, and within a minute and a half, administered oxygen under pressure to him. The oxygenation, which she claims to have done, not with an ambubag, but with a completely different device, produced no initial response but was continued until the infant started shallow irregular respiration.

The nurse testified that she handled the device to administer the oxygen except for the time she left the delivery room, at the attending physician’s direction, to telephone the pediatrician; only then did the anesthesiologist do anything with respect to the resuscitation of the baby. She also testified that the anesthesiologist ordered her to administer the nalline.

At approximately 4:00 A.M., the pediatrician who had been previously summoned by the Nurse arrived at the delivery room. After eliciting a history, he conducted a complete physical examination of the newborn. According to the hospital record, the examination revealed that the infant’s cry was weak to absent even after stimuli, the muscle tone was poor, the heart was regular, the reflexes were poor, and the color was fair. The pediatrician noted that the child was suffering from tremors of the lower and left upper extremities. The doctor also noted that there was nasal flaring, indicating to him that the baby was trying to get more oxygen. At three places in the hospital chart, he noted that he suspected the child’s problems may have been caused by hypoxia, or lack of oxygen to the brain. The contemporaneous tests he performed, however, revealed nothing wrong with the placenta, no abnormalities in the umbilical cord, no infectious process, and no metabolic imbalance which would account for the child’s birth injury.

At 7:30 A.M., the infant was transferred to New York Hospital. The infant was still receiving oxygen when he was transferred, and the final diagnosis recorded was Generalized Tremors, R/O Hypoxia. The diagnosis upon admission at New York Hospital was perinatal hypoxia.
The complainants instituted the birth injury action contending that the infant’s condition, diagnosed as athetoid cerebral palsy, resulted from medical malpractice by the opponent doctors and the opponent hospital.

The jury subsequently returned verdicts against the attending physician, the anesthesiologist and the hospital and a verdict in favor of the pediatrician. The anesthesiologist was found most culpable (53%), followed by the attending physician (40%) and the hospital (7%). The jury’s assessment of the personal injuries was in the sum of $7,500,000. The opponents’ motions to set aside the verdict on various grounds were denied.

The three opponents inculpated by the jury appeal principally on the ground that the claims of medical malpractice were not supported by the evidence. They also contend that certain errors by the trial court require reversal.

Although a jury verdict is to be accorded great weight, it is well settled that a general verdict in favor of a complainant cannot stand unless all the theories of liability submitted to the jury are sustained by the evidence. If evidence is wanting on one or more of the theories submitted to the jury, the verdict must be set aside for, as the Court of Appeals explained, it is impossible from the general verdict returned by the jury in accordance with the trial court’s instructions to determine that the verdict was not predicated on a finding in complainants’ favor on one of the claims which, for lack of supporting proof, should not have been submitted to it.

There was no medical testimony offered to demonstrate that any alleged negligence on the hospital employee’s part in failing to examine the patient when her own physician was on the way amounted to a departure from the standard of medical care extant in the community.
Even assuming a departure from accepted standards of good practice, mere evidence of negligence would not be sufficient by itself to establish liability. A causal connection between the alleged negligence and the event that produced the harm would also have to be proved. No medical testimony was elicited to suggest that the hospital employee’s failure to perform an internal examination of the woman was a proximate or contributing cause of the infant’s birth injuries.

The appealing opponents contest the sufficiency of the evidence not just as to some of the theories submitted to the jury but as to all the theories submitted to the jury.
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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.

Doctor-four and doctor-five are pediatricians associated with Pediatric Associates of NYC (“Pediatric Associates”). The infant first was seen at the Queens office of Pediatric Associates on 19 September 1999 by doctor-five. This is the only time doctor-five saw the infant, who was brought in before his first scheduled appointment, on a Saturday, due to a skin condition. Doctor-five testified that the lesion looked like a bacterial pustulosis or impetigo lesion, which is also bacterial. He prescribed Keflex and Bactroban, and took a culture. Doctor-five claims that since Keflex and Bactroban are highly effective against a staph infection, which is, as it turned out, what the infant had, then his care and treatment were appropriate. He also testified that he could not perform a culture for herpes in his office as that requires special training which he did not have. Since the infant was to be a patient of the Brooklyn office of Pediatric Associates, doctor-five never saw the infant again.

On 22 September 1999, doctor-four first saw the infant at the Brooklyn office of Pediatric Associates. She noted that the infant had developed 3 pustules with straw colored fluid 3-4 days before this visit, which doctor-five had treated with Keflex and Bactroban. She further noted that the infant’s mother had no history of oral herpes infections or sexually transmitted diseases. The infant presented with two new pinpoint lesions on his neck, and at that time there was no growth of the cultures up to that date and the cultures were being held for fungus.

Doctor-four consulted by telephone with doctor-six, a pediatric dermatologist, describing what she observed on the infant. According to doctor-four, doctor-six did not seem concerned and told her to continue the Keflex and Bactroban and to add Nizoral cream; that it appeared to be a fungul skin infection, and thought that the lesions could have been caused by the forceps used during delivery. Doctor-four’s impression was that the pustules could be staph aureus, Candida, staph epidermidis or epidermolysis bullosa. She continued the Keflex (this was day 4 of the 10 day course of Keflex prescribed by doctor-five), and prescribed Nizoral cream and Bactroban 3 times per day. If the lesions progressed, the mother was to return to the office and doctor-four noted that she would send the baby to a pediatric dermatologist. Doctor-fournext saw the infant on 23 September 1999. She observed no new lesions, and noted three honey crusted lesions on the right neck and three on the chest. Doctor-four’s impression was questionable impetigo. She instructed the mother to continue the Keflex, Bactroban and Nizoral and to call if there were any new lesions.

Meanwhile, the results of the culture taken by doctor-five were stated in a report dated 30 September 1999, and revealed staphylococcus aureus.

On 7 October 1999, doctor-four again saw the infant who was fussy and was seen due to colic. On 14 October 1999, the baby was seen again by doctor-four. Plaintiff-mother, had observed intermittent anisocoria (unequal pupil size) that morning. Doctor-four referred the infant to a pediatric ophthalmologist, doctor-seven, to be seen that same day, and to the pediatric dermatologist, doctor-six, who was to see the infant the next day due to questionable impetigo. Doctor-four from Staten Island noted the mother reported that the skin lesion recurred three days ago and she had been using Nizoral and Bactoban with results. On exam, there was intermittent anisocoria of the right eye and the right pupil was equal and reactive to light. There was a honey crusted lesion on the right neck and a dry lesion on the right chest.

Doctor-six’s records indicate that the plaintiff mother did not bring the infant in until 18 October 1999. He cultured the lesions and they were negative. He did not think they were herpes. Blood tests which had been performed on the mother and infant revealed that the infant-plaintiff and the mother were positive for the antibody for HS V-2, in reports dated October 19 for the mother and October 22 for the infant.

Doctor-four testified that she consulted with doctor-six after he saw the infant and mother on 18 October 1999; that she had wanted them to see doctor-six on 15 October; that she received a report from a doctor-eight indicating that he saw the infant on 4 November 1999 for congenital/perinatal herpes infection.

Subsequently, a medical malpractice action ensued in which plaintiffs seek damages for injuries allegedly sustained by the infant plaintiff at his birth on11 September 1999 due to the alleged malpractice of the defendants. Plaintiffs assert, inter alia, that defendants failed to properly examine, diagnose and medicate plaintiffs; failed to treat the infant in utero and his mother prenatally; failed to properly evaluate the plaintiff-mother’s pelvic anatomy; failed to properly diagnose and treat the plaintiff-mother’s herpes and herpatic condition; failed to treat the pregnancy as high risk; failed to perform and interpret sonograms; improperly recognized the presence of and improperly treated the complications of delivery; negligently and improperly attemptec a vacuum extraction delivery; failed to timely and properly perform a vacuum extraction; failed to perform a cesarean section once the vacuum extraction failed; improperly performed a forceps delivery, and failed to use the forceps in a proper manner, negligently cutting the infant with the forceps; and created a portal of entry of herpes to the infant by the improper use of forceps during delivery, thereby resulting in the infant-plaintiff contracting herpes simplex virus, Type II (“HSV-2”).

The defendants, doctor-four, doctor-five and Pediatric Associates of NYC (“the Pediatric defendants”), move for an order granting summary judgment and dismissing plaintiffs’ complaint on the basis that no triable issues of fact exist.

By separate motion, defendants doctor-one, doctor-three, New York University Ob/Gyn Associates, and NYU Hospitals Center, s/h/a “New York University Medical Center” (“the NYU defendants”) move for the same relief.

Plaintiffs cross-move for an order providing that if any defendant obtains summary judgment and dismissal of plaintiffs’ claims against it, then any remaining defendant should be precluded from obtaining, or should be deemed to have waived or forfeited, the limited liability benefits of CPLR Article 16 in relation to the acts or omissions of said defendant who is granted summary judgment and dismissal of plaintiffs’ claims against it; and then such should become the law of the case as to any remaining defendant so as to preclude the application of CPLR Article 16 concerning the acts or omissions of said defendant who is granted summary judgment and dismissal of plaintiffs’ claims against it.

The Ruling:

Under the rules, summary judgment may be granted only when it is clear that no triable issues of fact exist. The province of a court on a motion for summary judgment is issue finding rather than issue determination. The party moving for summary judgment bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law. Once such a showing has been established, the burden is shifted to the opposing party to come forward with proof in evidentiary form to show the existence of genuine triable issues of fact. General conclusory statements and expressions of hope are insufficient to defeat the motion. On such a motion, the court is not to determine credibility, but whether a factual issue exists.

It is well established that for a plaintiff to establish a cause of action sounding in negligence, he must meet the initial burden of showing: the existence of a duty flowing from defendant to plaintiff; a breach of this duty; a reasonably close causal connection between the contact and the resulting injury; and actual loss, harm or damage.

It is equally well established that in determining whether a breach of duty has occurred, it is necessary to consider whether the resulting injury was a reasonably foreseeable consequence of the defendant’s conduct. When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiff’s burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fart regarding whether defendant’s conduct proximately caused plaintiff’s injuries.

On the NYU Defendants:

The court finds that plaintiffs experts statements as to departures as to the NYU defendants amount to nothing more than speculation.

Here, the expert states that a cesarean should have been performed because the mother had HPV and genital warts in 1985. The expert states that these are sexually transmitted, so doctor-one knew that plaintiff-mother had been exposed to a sexually transmitted disease. The expert continues that HPV can cause pharyngeal condylomata in the baby and thereby possibly obstruct the pharynx which is life threatening. Doctor-one should have notified plaintiff-mother of this risk to the baby, and of the fact that this risk would be substantially decreased if a cesarean section was performed. The expert also states that as of 5:05 p.m. on10 September 1999, a cesarean should have been performed, since continued labor exposed the mother and fetus to danger from maternal exhaustion, uterine abruption due to scar separation, fetal distress, fetal hypoxia, and uterine abruption due to scar separation. In effect, plaintiff’s expert is claiming the single departure of failure to perform a cesarean section as to the NYU defendants. While plaintiffs claim that the infant contracted HSV as a result of the vaginal delivery and the trauma sustained by the use of forceps, plaintiffs fail to address the issue of proximate cause, and more specifically, foreseeability. The list of injuries in the preceding paragraph which the expert opines the infant could have suffered from a vaginal, rather than cesarean, delivery, were not in fact suffered by the infant. On the contrary, the birth injury (birth injury accident) which is at issue here, the contracting of HSV is not listed as a foreseeable risk of vaginal delivery to a reasonable degree of medical certainty. The NYU defendants were presented with no basis to believe that there was this risk. No herpetic vesicles or lesions were ever observed in plaintiff-mother during the prenatal period, and she affirmatively reported that she did not have herpes and was unaware that she had ever been exposed to herpes, even to a point seven months after the birth of the infant plaintiff.
By reason of the aforesaid failure to establish that the risk of being infected with HSV was foreseeable as to the infant plaintiff, the motion by doctor-one, doctor-three and New York University Ob/Gyn Associates for summary judgment is granted.

Moreover, plaintiff did not point to any departure by NYUMC staff. Plaintiffs’ allegations were directed at doctor-one and doctor-three, who were, according to the evidence, private attending physicians and not employees of NYUMC in 1999. Plaintiffs’ expert in pediatrics addresses only those actions by the Pediatric defendants, who are not NYUMC staff, and whose course of treatment occurred after the infant plaintiff was discharged from NYUMC.

More importantly, plaintiffs’ claims of negligent credentialing which are contained in the Bill of Particulars were addressed by the NYU defendants in an affidavit presented, and plaintiffs have not come forward with evidentiary proof of any kind to rebut the statements therein that proper procedures were employed by NYUMC in the credentialing of physicians. Thus, such claim is dismissed, and summary judgment is granted to NYUMC
On the Pediatric Defendants:

The court finds that issues of fact exist as to whether defendants doctor-five, doctor-four and Pediatric Associates deviated from accepted standards of medical practice which preclude the granting of summary judgment.

Here, unlike the situation presented with the NYU defendants, plaintiffs’ pediatric expert clearly sets forth departures and deviations as to the correctness of these defendants’ treatment and diagnosis of the infant plaintiff, as well as the timeliness of their actions and referrals to appropriate specialists, which plaintiffs’ expert opines permitted the HSV infection to remain undiagnosed for several weeks and to become less amenable to treatment.
Thus, the court denies the motion.

On plaintiff’s Cross-Motion:

Here, plaintiffs cite a case, in support of their motion, where summary judgment has been granted to NYUMC and constitutes the law of the case. The court finds such ruling highly persuasive. Thus, applying the principle set forth therein precludes the remaining defendants from attempting to prove the negligence of the dismissed defendants to reduce their own Article 16 proportional liability.

In the cited case, plaintiff and co-defendants failed to challenge the sufficiency of the movant’s showing and inasmuch as a motion for summary judgment is the functional equivalent of a trial and the remaining defendants failed to satisfy the evidentiary burden that shifted upon the movant’s prima facie showing, the opportunity to limit liability under Article 16 with respect to the movant’s acts or omissions has been forfeited. The same applies, of course, where a defendant opposed the motion and lost. Thus, the court finds that the remaining defendants have had a full and fair opportunity to address each moving party’s liability in this case. Accordingly, the cross-motion is granted.

In sum, the motion by defendants doctor-one, doctor-three, New York University Ob/Gyn Associates and New York University Medical Center for summary judgment is granted and the plaintiffs’ complaint is dismissed as to these defendants; the motion for summary judgment by defendants doctor-four, doctor-five and Pediatric Associates is denied and the complaint is severed as to these defendants and shall continue; the cross-motion by plaintiffs for an Article 16 relief to preclude the remaining defendants doctor-four, doctor-five and Pediatric Associates herein from asserting CPLR Article 16 defenses is granted.
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This is an action sought by the defendants for the court to dismiss the complaint based on a summary judgment. The infant plaintiff, represented by her mother and natural guardian, sought to recover damages for personal injuries allegedly sustained by the infant plaintiff due to lead poisoning, negligence and medical malpractice committed by the defendants. The court dismissed the complaint and ruled in favor of the defendants.

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

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

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

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

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

The court held that the 1991 CDC Statement (Statement by the Federal Centers for Disease Control) with regard to mopping is only listed as an example of a simple way parents can reduce their children’s exposure to lead. It does not prohibit the use of vacuum cleaners, and, in fact, instructs that vacuum cleaners with agitators remove dust from rugs more effectively than vacuum cleaners with suction only. The 1991 CDC Statement is not meant to create an enormous burden on primary pediatric health care providers. In addition, 10 NYCRR 67-1.2 (a) (7) simply “requires reasonable efforts to ensure the provision of risk reduction education.”
The court reiterated that the 1991 CDC Statement provides that the urgency and type of follow-up depends on the screening blood lead test result. Here, at the time of the infant plaintiff’s first routine well-child on October 17, 2002, the infant plaintiff had previously had two negative lead test results. On that October 17, 2002 visit, the infant plaintiff was given anticipatory guidance and was screened and tested for lead poisoning.
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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.

Subsequently, plaintiff filed a complaint and alleges, among other injuries, premature labor. With her motion, she seeks a determination, that she sustained a serious injury within the meaning of Insurance Law as a result of the accident. Plaintiff contends that she sustained a medically determined injury or impairment of a non-permanent nature which prevented her from performing all of the material acts which constituted her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment; that she was confined to bed for a period of approximately 15 weeks and was incapacitated from employment for 4 months.

Defendants oppose plaintiff’s motion, and each move for dismissal of the complaint on the ground that plaintiff did not sustain a serious injury as a result of the accident.

The doctor states in his affirmation, presented before the court, that due to the injuries sustained in the car accident, plaintiff experienced pregnancy complications, thus, bed rest was prescribed for the rest of her pregnancy for approximately six months.

The Ruling:
Although not common, plaintiffs have been granted summary judgment determination of the serious injury issue. At least one court has granted a plaintiff’s threshold motion under the 90/180 days disability category. If the plaintiff submits admissible evidence demonstrating that she suffered a serious injury, the burden shifts to the defendant to submit competent medical evidence demonstrating the existence of a triable issue of fact.

Here, The Long Island plaintiff submitted competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident. She also submitted sufficient objective medical evidence relating her inability to work due to the injuries allegedly sustained in the subject accident. Whether characterized as pregnancy complications or preterm labor, the doctor provides sufficient objective evidence to support the determination of disability and to connect that disability to the accident. Contrary to defendants’ contention, it was not necessary, in the first instance, that the doctor describe the precise physiological mechanism of causation or the medical relationship between the diagnosed condition and her determination of disability
If there is a question about the sufficiency of plaintiff’s prima facie showing, it would be whether she sustained a medically determined injury or impairment for purposes of the 90/180 days disability category of serious injury. Do pregnancy complications in the nature of preterm labor constitute an injury or impairment if they are not determined to hinder the plaintiff’s ability to physically perform the tasks of her work, in this case as a secretary, but present a risk of harm to the plaintiff, or her fetus, or both, if the plaintiff continues to work?

In 1984, the No-Fault Law was amended to add loss of a fetus to the list of serious injury categories. Even after the amendment, however, because of limitations on a mother’s claim for emotional distress as a result of a stillbirth, a defendant could contend that, although the loss of a fetus would constitute a serious injury, the plaintiff was still required to prove a compensable injury, i.e., an independent physical injury, in order to recover. Although the contention was properly rejected, the limitations on the mother’s recovery were not definitively removed until the Court of Appeals held in the case of Broadnax that even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.

In the instant case, plaintiff is not, at least on this motion, claiming a medically documented emotional trauma as constituting the medically determined injury or impairment that would support a finding of 90/180 days disability. She testified at her deposition that she did not see a psychiatrist, psychologist, or therapist after the accident. Plaintiff does allege that she suffered depression, anxiety, fear, and emotional upset and shock, but neither in her Affidavit nor deposition testimony is a connection made to the pregnancy complications. Most importantly for this motion, the doctor makes no specific reference to emotional harm and a connection to plaintiff’s preterm labor. The question then is whether preterm labor constitutes an injury for purposes of the 90/180 days disability category of serious injury.

The statute does not define injury and the Court has not found in the voluminous case laws on serious injury any attempt to define injury judicially. The 1984 amendment to the statute, adding loss of a fetus as a category of serious injury, could be argued as suggesting a legislative intent that nothing less will suffice. Or it could be seen as suggesting a legislative purpose to protect pregnancy. The intent of the Legislature relating to Insurance Law was to include pregnancies of any duration within the meaning of the phrase loss of fetus. The herein Court adopts the latter suggestion.

In the report submitted, the doctor included threatened abortion among her objective findings. Since loss of a fetus is a serious injury, the threatened loss of a fetus is an injury as well. When medically determined and related to a motor vehicle collision, and requiring complete bed rest for the statutorily-prescribed period to ensure the continuation of the pregnancy, such a threat to the continuation of the pregnancy qualifies as a serious injury under the 90/180 days disability category.

The Court concludes that plaintiff has sufficiently established prima facie that she sustained a serious personal injury as a result of the collision.

In opposition, defendants submit the affirmations of their respective counsel; defendants add a report of an ob/gyn who examined plaintiff on 29 January 2009; a report of another ob/gyn who examined plaintiff on 7 May 2008; and a document apparently printed from the website of the National Organization of Rare Disorders. Counsel’s affirmations and the attached document address a condition called “hyperemesis gravidarum,” which is noted in one of the doctor’s reports. Another of her reports notes only “hyperemesis.”

Here, counsel purport to describe the condition and its relevance to this motion, but neither attorney is shown to be competent to offer medical evidence and the attached document is clearly inadmissible hearsay. Most importantly, neither the reports of the two ob/gyn doctors make any mention of the condition. Moreover, the report of the first ob/gyn is unsworn and has not been affirmed, and, therefore, without any probative value. No excuse, acceptable or otherwise, is proffered for the failure to provide evidence in admissible form, thus, such report cannot raise a triable issue of fact. On the other hand, the report of the other or second ob/gyn doctor is affirmed in accordance with the rules. The report contains six substantive paragraphs. In four paragraphs, the second ob/gyn doctor describes his review of the records of the Hospital and the doctor, and his findings on examination of plaintiff. “The general physical examination was normal. Pelvic examination revealed a normal vagina, clear normal cervix and normal pelvic viscera. It is in his opinion that the premature labor and the emergency caesarian section bears no relation to the accident; that there was no anatomic injury or elapsed between the motor vehicular accident and the onset of premature labor; that premature labor and delivery is due to the increased distention of the uterus cavity which accompanies multi-fetal pregnancy. The second ob/gyn also cites a professional journal article which states that, generally, twins deliver early. The journal article is not provided, and it would, in any event, be inadmissible hearsay. Assuming that the article served as a basis for the opinion as to lack of causation in this case, rather than merely an interesting statement of general fact, there is no showing that the second ob/gyn could rely on the article in forming his opinion. There are additional difficulties with the second ob/gyn’s report. It is not at all clear that the second ob/gyn is even addressing the preterm labor experienced by plaintiff at three-month gestation, soon after the accident and during the following months, rather than the premature delivery on 31 of July. It is, therefore, only arguably relevant to the condition that has been found to be a medically determined injury for purposes of the serious injury threshold. The Verified Bill of Particulars alleges premature labor and not premature birth.
Plaintiff cannot, of course, recover if her pregnancy and not any accident-producing injury was the medical reason for any limitation on her activities after the accident. But the second ob/gyn’s report does not raise a triable issue of fact that the doctor’s direction to plaintiff that she does not work and rest in bed, and the condition that prompted the direction, were not sufficiently causally related to the subject accident. The second ob/gyn doctor failed to offer any facts or opinion showing any other possible origin or cause for plaintiff’s limitations other than the accident; his opinion as to lack of causation is purely speculative.

In conclusion, plaintiff has established prima facie that she sustained a serious injury under the 90/180 days disability category and defendants have failed to raise a triable issue; plaintiff’s motion is granted and need not, at trial, establish serious injury as defined in Insurance Law as a condition to damages for the non-economic loss; defendants’ respective motions are denied as moot.
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Plaintiff-wife, together with her Westchester husband, has sued her prior physician for alleged malpractice for insertion in 1973 of a Majzlin Spring Intrauterine Device (hereafter known as IUD), a birth control device which was recalled at the medical level by the Federal Food and Drug Administration (F.D.A.), allegedly prior to the date of insertion. Plaintiff has also joined, as party defendants, both the developer and the distributor of the Majzlin Spring.

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

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

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

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

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

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

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

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

Henceforth, the motion to dismiss is denied, without prejudice to defendant to assert and prove his affirmative defense.
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