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On October 11, 1981, a woman of foreign birth delivered a set of twins


On October 11, 1981, a woman of foreign birth delivered a set of twins prematurely at a New York Hospital in Kings county. Two weeks after his birth, while he was still in the hospital, the mother noticed a swelling on this thigh. An x-ray performed at the hospital revealed that the baby had a broken leg. There was no legitimate cause for the injury provided to the parents of the child. Nine years later, the mother attempted to file a medical malpractice lawsuit based on the child’s birth injury. She stated that she should be allowed to file a late claim because she was born in a different country and was not aware that she was entitled to file a medical malpractice lawsuit. She stated that she was uneducated and that she requested permission to file a late cause of injury. The court allowed her to file a delayed motion. At which point she was granted a trial. However, the Supreme Court later dismissed the motion and stated that she was not allowed to file. The Brooklyn court maintains that ignorance of the law is not an acceptable excuse for a failure to file.

The child, however, may be able to file at a different date. The child has suffered enduring physical trauma from this injury. His broken leg did not mature at the same rate as his uninjured leg. The injury has left him with one leg that is shorter than the other causing a visible limp when he walks. There is indisputable proof that the child’s injury occurred at the hospital and while he was in the care of the medical staff at that hospital. The enduring pain and suffering that the child has experienced throughout his life is also undisputed. It is clear therefore, that the hospital was aware of the injury and should have been familiar with the facts constituting the claim within a reasonable timeframe. The hospital is within its rights to claim that a nine year or more delay would prejudice them. They contend that the medical staff that treated the child may not still be employed by the hospital and that they may not be able to locate them. If they do locate them, it is likely that they will not remember one birth out of all of the births that they attended while at the hospital nine years later. The mother contends that the hospital had her son’s medical records and that should account for notice of the injury in a timely fashion.

The court does not agree with that contention. The court maintains that a victim of medical malpractice has 90 days to file a claim from the date of the injury. Failure to file within that 90 day framework poses a problem for all parties concerned. In cases such as this one where the injury was evident, but the enduring injury was unforeseeable, causes problems and in some cases may become an exception to the rules of delay. However, the court in this case ruled that the hospital did not have actual notice of the facts underlying the claim in a reasonable time period.

One of the justices from The Bronx dissented from the others in regard to this injury. He felt that the late notice should be permitted because the leg did not present as shortened or lame within 90 days of the date of injury. The improper treatment of the leg is what caused the lameness and inability to function normally. That injury was not noticeable until the child was much older. The dissenting justice contends that the hospital should have been able to predict that a broken leg on an infant in their care was suspicious and would probably result in a medical malpractice claim.

At Stephen Bilkis & Associates a medical malpractice lawyer, is available in one of several convenient offices located throughout New York and the Metropolitan area to respond to your call. Our birth injury Attorneys will help you with good advice when you are facing a medical malpractice situation.

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