Birth Injury Lawyer Blog 24/7

Published on: August 18, 2012

On 30 May 2000, the infant plaintiff was born approximately twelve weeks prematurely

by Stephen Bilkis

The Facts:

On 30 May 2000, the infant plaintiff was born approximately twelve weeks prematurely in a medical facility operated by defendants. The infant plaintiff suffered from neonatal respiratory Brooklyn distress syndrome, and he was placed in neonatal intensive care, where his blood oxygen and blood acidity was monitored by defendants’ staff. The blood oxygen was continuously measured by a pulse oximeter: a device, attached to the patient’s finger that uses light to measure the amount of oxygen in the blood. A respirator and breathing tube was used when it was noted that the infant plaintiff cannot breathe. At 11:00 AM on the following day,

Defendants’ staff performed arterial blood gas analysis, which is a laboratory analysis of a drawn blood sample that specifies both the acidity and the amount of saturated gas in the sample. The test demonstrated that the pH of the infant plaintiff’s blood was 7.254. At around 2:30 PM, a doctor, also of defendants’ staff, ordered a second arterial blood gas analysis. At 3:00 PM that afternoon, the blood oxygen saturation was over 90%, according to the pulse oximeter. At 4:15 PM, the blood oxygen saturation dropped to around 50%-60% from a previous level of over 90%. Shortly thereafter, defendants’ staff noted that the infant was suffering from a hemorrhage in the lungs. Consequently, the staff cleared the blood from the lungs and then adjusted the respirator settings and breathing tube. The staff then administered a paralytic to immobilize the infant plaintiff and prevent him from removing the breathing apparatus. At 8:00 PM, another arterial blood gas analysis was done, the result of which was a pH of 6.7, which is dangerously low. The staff then adjusted the respirator to administer more oxygen through forced breathing. The following day, medical imaging showed that the infant plaintiff had suffered a brain hemorrhage and hydrocephalus, which is increased intracranial pressure on the brain caused by the accumulation of fluid. The hemorrahge caused periventricular leukomalacia, the destruction of white matter of the brain. This, in turn, caused the infant plaintiff to develop cerebral palsy; a brain injury.

Published on: August 15, 2012

The complainant woman gave birth to her child at the accused hospital

by Stephen Bilkis

The complainant woman gave birth to her childat the accused hospital. The hospital’s obstetric gynecologist delivered the child vaginally. The child, who had high birth weight at the time of birth, suffered birth injuries which include Erb’s palsy/brachial plexus injury during delivery. The accused female physician who is an employee of the hospital’s medical practitioner had provided most of the woman’s prenatal treatment up to her last visit. The medical practitioner was the last physician to treat the woman prenatally when he treated her prior to delivering the child the next day.

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

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

Published on: August 13, 2012

A man commenced a wrongful death action against a hospital and three physicians.

by Stephen Bilkis

A man commenced a wrongful death action against a hospital and three physicians. The incident happened when the wife of the man was presented to the hospital to give birth to their daughter. The mother died the next day after the delivery from an infection allegedly not previously diagnosed or treated. In the instant action, the man sought damages in the sum of $500,000 for his wife’s wrongful death and $50,000 for conscious pain and suffering.

The complaint alleges that the physicians undertook and did provide hospital services to the mother with negligence and inappropriate nature constituting acts of medical malpractice and that each of the three doctors was acting within the scope of his employment by the hospital. Thereafter the three doctors settled the wrongful death action against them for $115,000. The settlement was approved by order of the Supreme Court. Two days later, a provision in discontinuing the action as to the doctors was executed by them and the attorneys for the complainant.

Afterwards, the NYC hospital filed a motion for an order requiring the doctors to appear for an examination before trial and it was granted. The order of special term directed the doctors to appear for examination before trial at the conclusion of examinations of the hospital and the complainant man. However, despite the order, the three doctors moved for an order to modify the caption of the man’s action so as to delete their names as party opponents. The doctors contended to the stipulation of discontinuance that they were no longer opponents.

Published on: August 10, 2012

A woman of foreign descent was pregnant with twin boys

by Stephen Bilkis

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.

Published on: August 9, 2012

A 41-year-old physician and mother of one went into labor

by Stephen Bilkis

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.

Published on: August 7, 2012

Infant plaintiff’s mother (herein “plaintiff-mother”) is a physician Board Certified

by Stephen Bilkis

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.

Published on: August 5, 2012

An action for alleged medical malpractice, lack of informed consent

by Stephen Bilkis

An action for alleged medical malpractice, lack of informed consent, and negligent hiring on behalf of the complainant child was commenced by his mother and natural guardian. The complaint arising out of the alleged negligence of the accused parties during the care and treatment rendered to the child’s mother during her pregnancy, labor and delivery, resulting in the premature birth of the child, and the alleged negligence of the accused parties in their care and treatment of the child causing the child to sustain severe and serious birth injury, including brain damage.

To support the motion brought by the physicians and the University Associates in Obstetrics & Gynecology, they have submitted an attorney’s affirmation; copies of the pleadings, answers, verified bill of particulars; a copy of the complainants’ medical records; and the affidavit of a medical expert.

The expert for the accused and University Associates in Obstetrics & Gynecology has submitted an affidavit wherein she sets forth that she reviewed various materials including the child’s verified bill of particulars and pertinent medical records and the testimonies of the parties to the action. However, a copy of the accused parties’ testimonies referred to have not been provided with the moving papers or an affidavit by any of the accused parties in support of the motion as required by the law. Additionally, the notarized affidavit of the expert does not comport with the requirements of the law. Therefore, the moving papers are insufficient as a matter of law.

Published on: August 2, 2012

This is an action sought by the defendants for the court to dismiss the complaint based

by Stephen Bilkis

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.

Published on: July 28, 2012

On July 1, 1997, an expectant mother gave birth via premature delivery

by Stephen Bilkis

On July 1, 1997, an expectant mother gave birth via premature delivery at the Wyckoff Heights Medical Center. The infant died upon delivery. Plaintiffs, the infant’s natural parents, claimed that the infant’s wrongful death was caused by the premature delivery of the expectant mother and due to the medical malpractice of defendant Wyckoff. Plaintiffs then commenced an action to recover damages for medical malpractice against the defendant. Plaintiffs alleged that the infant expired at “the age of one hour.” Plaintiff the infant’s mother asserted a claim for emotional distress.

A witness said that it is a well settled law in this state that a wrongful death action may not be brought on behalf of a stillborn fetus. A wrongful death action may, however, be brought on behalf of an infant who is born alive but dies shortly after birth injury. A parent cannot, however, recover for his or her own emotional injuries in a wrongful death action.

A Lawyer said that when the action was commenced, it was the law in New York that an expecting mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage unless she suffered an independent physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth.

Published on: July 26, 2012

Plaintiff is 25 years old, married, with two young daughters

by Stephen Bilkis

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.