Birth Injury Lawyer Blog 24/7

Published on: July 24, 2012

A woman was pregnant at thirty-one weeks in August 2001

by Stephen Bilkis

A woman was pregnant at thirty-one weeks in August 2001. She was rushed to the emergency room because of premature labor. The doctors found that she was suffering from hypoglycemia or low blood sugar at 26 mg/dl. Her blood sugar levels normalized so she was discharged two days later.

A month later, the woman was rushed to the same emergency room because she was having seizures. She has had a history of seizure since childhood. A month later, the woman gave birth to a baby boy whose new born health rating was excellent. Forty minutes after he was delivered, the baby started trembling and shivering. He was transferred to the intensive care unit where his blood sugar level was discovered to be only 20 mg/dl. A little while later, his blood sugar level was measured at 5 mg/dl. He was given intravenous glucose until his blood sugar levels reached a more normal 71 mg/dl. He was discharged from the hospital two days after he was born.

A year later, the baby was referred back to the same hospital where he was born because he had developmental delays. An MRI was made of his brain and it was discovered that he had lost white matter in his brain. This suggested to the doctor that the baby had an episode where he suffered a brain injury due to lack of oxygen. He was diagnosed with cerebral palsy.

Published on: July 21, 2012

On June 16, 2003, the Administration for Children’s Services (“ACS”) filed an abuse

by Stephen Bilkis

On June 16, 2003, the Administration for Children’s Services (“ACS”) filed an abuse petition against the respondent mother, and the respondent father, with regard to their infant childEdwin.

The petition was amended against both respondents, alleging that the infant child was also a severely abused child. The petition alleged that the infant suffered rib fractures and intracranial bleeding as result of the respondent mother repeatedly grabbing him by the torso, squeezing the infant’s ribcage and shaking him violently, and dropping him, beginning in March 2003 and extending over the course of approximately three months.

On June 25, 2003, the respondent mother pleaded guilty in assaulting her infant child. A Kings Injury Lawyer said that ACS filed a motion for summary judgment, affirmations and arguments in relation thereto, the Court found, by clear and convincing evidence, that the respondent mother abused and severely abused her infant, Edwin, pursuant to the Family Court Act and Social Services Law respectively.

Published on: July 19, 2012

Plaintiff-wife, together with her husband, has sued her prior physician

by Stephen Bilkis

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.

Published on: July 17, 2012

Issues that occur when a woman is pregnant are now known to cause many problems

by Stephen Bilkis

Issues that occur when a woman is pregnant are now known to cause many problems with the fetus that she is carrying. A pregnant woman has more rights now to investigate this type of medical issue than she did in the 1960’s. In the 1960’s, medical records were not as easy for a person to obtain, even if they were their own records. Laws in recent years, have made obtaining your own medical records much easier. However, when there is a possible case of medical malpractice involved, it can still be difficult for a person to obtain the medical records that they need to prove their case.

In 1964, on July 22, a woman who was early in her pregnancy was hospitalized following a serious automobile accident. She was taken to the Lutheran Medical Center in New York for treatment. She remained in the hospital for two months while she was treated for her injuries. When she was discharged two months later and sent home, she had no reason to believe that there was anything wrong with the baby that she carried. However, on October 22, 1964, she was brought to Kings County Hospital where she was admitted in preterm labor. The infant died shortly after birth.

The mother was convinced that the cause of her infant’s death related to the traffic accident in July. However when she requested copies of the medical records from her hospital stay and treatment, the hospital would not provide her with the information that she needed. She discovered that in order to obtain the records, she would have to execute an assignment of lien against the hospital. The woman filed the lien. The Long Island hospital provided the documents, but requested that the court make the woman pay them more than $600.00 for their costs in obtaining the records. The hospital contends that they have the right to the payment because the assignment of the lien that was executed by the mother and her attorney served to form a binding contract between the woman and the hospital. The records that the hospital provided to the mother claim that the injuries that she sustained in the car accident and the treatment that she received in the hospital had no bearing on the loss of her child less than one month after being discharged from their care.

Published on: July 15, 2012

When a child is born with a severe birth defect

by Stephen Bilkis

When a child is born with a severe birth defect that is genetically based and could have been discovered through fetal testing, there can be civil remedies to assist the family in some situations. If the fetal testing has been performed and returned normal, but the child was born with genetic problems, then the parents of the child might have the basis for an action brought for wrongful life. In one case that was sent to the court of appeals for the state of New York on November 13, 1984, a child who was born with Down’s Syndrome filed a suit to recover damages from the hospital and doctors who were responsible for her mother’s prenatal care.

She contends that her mother ordered the amniocentesis test during her pregnancy to determine if she would have a fetus with any genetic abnormalities. The test results that were given to her mother said that her mother would have a normal, healthy, baby boy. However, her mother gave birth to a daughter with severe Down’s Syndrome. She contends that if her mother had been properly informed by the hospital that she was carrying a child with Down’s Syndrome that she would have had the child aborted. However, since the test results that were given to her mother were totally incorrect, her mother did not have an abortion and she was born.

She seeks monetary compensation to assist her with the extraordinary expenses that she will have in her lifetime for special care. The court in New York City reviewed her application and determined that an action for wrongful life is difficult to conclude. Wrongful life in a case such as this one, where an amniocentesis test was requested and performed, could indicate to a jury that the mother upon information that the child was genetically abnormal would have aborted the pregnancy. If her mother, or her father had filed a wrongful action within six months of her birth, it is likely that they would have been granted the motion to proceed. The option to abort a child that is not genetically normal is one that is recognized by the State of New York and was an option that was likely in this particular case. The fact that the wrong test results were presented to this child’s mother is obvious in that the baby born to this woman was neither a male nor free of genetic abnormalities. There was clearly fault that could be applied to the medical practitioners in this case if the parents of the child had filed the suit early in her life.

Published on: July 12, 2012

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

by Stephen Bilkis

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.

Published on: July 10, 2012

The birth of a child should be one of the happiest days of anyone’s life

by Stephen Bilkis

The birth of a child should be one of the happiest days of anyone’s life, however, when that child is injured during their birth, it is heartbreaking. One such injury occurred on June 8, 1990 when a woman was taken to Kingston Hospital in New York. During her labor, the umbilical cord prolapsed and came out before the baby. This is a very dangerous situation because it cuts off oxygen to the infant and can cause the infant to be born with brain damage or even dead. In this case, the doctor put his arm up inside the mother to hold the baby off of the umbilical cord. The baby was in a breech position, coming out bottom first. The doctor ordered an immediate Cesarean section to get the baby out. However, it was 45 minutes before the surgery actually occurred. During that time, the doctor continued to try to hold the baby off of the prolapsed cord.

Several hours after the little baby girl was born, she was transferred to Albany Medical Center where she died on June 10, 1990. The parents of the baby filed a medical malpractice lawsuit against the doctor and the hospital where she was born. They claim that the doctor failed to perform proper prenatal tests to determine the position of the infant prior to delivery. If the proper tests had been performed, the doctor would have known that the baby was breech and would have ordered a Cesarean section before she went into natural labor to safely remove the baby. They also contend that the delay in obtaining an operating room contributed to the death of their child.

The doctor from Suffolk County who delivered the baby, maintains that the child was not alive when she was born and that the only life signs were artificially stimulated by the resuscitation devices used in the hospital. The original trial court dismissed the medical malpractice lawsuit. The parents then appealed that decision to the Supreme Court. The Supreme Court agreed that the trial court should not have dismissed the initial lawsuit as it regards the causes of action for the mother. They did not agree that the father had any cause for action since he was not in any danger during the incident and would not have suffered any physical injury during the operation or the birth of the child.

Published on: July 8, 2012

On 2 January 2008, the instant action was commenced

by Stephen Bilkis

On 2 January 2008, the instant action was commenced, when NYCCS filed abuse petitions against respondent-mother.

On 31 December 2007, respondent allegedly allowed the subject child (herein “subject child”) to sleep in her bed, touch her, kiss her on the mouth, insert his finger in her anus, insert his finger in her vagina, and have sexual intercourse with her to the point of ejaculation.

According to respondent, she did not stop the child because she could not believe that her son would do this to her, and she wanted to see how far he would go. The said incident was alleged to be in violation of Penal Law, sexual misconduct, rape in the third degree, rape in the second degree, and sexual abuse in the third degree. In addition, the petitions alleged that respondent failed to provide adequate care and supervision for the children by misusing alcoholic beverages to the extent that she loses control of her actions. Specifically, the petitions alleged that on 30 December 2007, she drank two Corona beers causing her to become intoxicated. In addition, the petitions alleged that the subject child woke up at 3:00 AM on 31 December 2007 in his mother’s bed smelling alcohol because she drank three quarters of a fifth of Johnnie Walker Red on the previous evening. Finally, the petitions alleged that respondent’s other two children are derivatively abused and neglected children by virtue of the abuse of the subject child.

Published on: July 5, 2012

A woman gave birth sometime on October 7, 2005 at a college hospital

by Stephen Bilkis

A woman gave birth sometime on October 7, 2005 at a college hospital. An obstetrician attended the birth but an obstetrical resident was the doctor who personally delivered the baby.

The woman’s delivery progressed well but her pushing had to be temporarily stopped because when the baby girl’s head was delivered, it was seen that the umbilical cord was wrapped around the baby’s head. The resident clamped the umbilical cord and cut it and then delivered the rest of the baby. The child’s head presented itself with the back of her head facing the right side of her mother’s body. The mother suffered a vaginal laceration with the birth because no episiotomy (surgical cut in the vagina to allow easier delivery of the baby) was made by the resident. They then repaired the vaginal laceration.

After the birth, the pediatrician noted a weakness in the right arm of the baby. The diagnosis was Erb’s palsy as a consequence of the baby’s shoulder getting caught in the mother’s pubic bone. With the mother’s uterus pushing the baby out and the resident pulling the baby out, the baby’s right shoulder was stretched and suffered a fracture and the nerves were pulled and injured resulting in muscle weakness in the right shoulder and right arm.

Published on: July 2, 2012

During the first months of 1998, petitioner and respondent began living together

by Stephen Bilkis

During the first months of 1998, petitioner and respondent began living together. On 28 August 1998, the parties were married in the State of New York. Both parties were aware of the fact that petitioner was born a woman but lived as a man since he was a teenager. On 8 June 1998, petitioner legally changed his name. Since the age of 15, petitioner adopted the hair style, clothing, demeanor and name of a man. Thereafter, petitioner received hormone treatments to effectuate a fully masculine appearance. Petitioner plans to undergo gender reassignment surgery in the future.

Meanwhile, respondent stated that despite knowing that petitioner was born a female, she agreed to marry petitioner. The couple filled out the marriage certificate together. Respondent claims that the first year of marriage was happy and that in the beginning of the second year, in 1999, petitioner became physically abusive.

After four years of marriage, respondent agreed to conceive a child through artificial insemination with petitioner, despite the alleged continued abuse. In 2001, the parties agreed that the mother would undergo artificial insemination and the parties selected a sperm donor whose characteristics and interests matched those of petitioner. The parties collaborated on, contributed to and supported the artificial insemination process. Petitioner signed the consent form for respondent to be inseminated. The procedure had to be repeated three times before it resulted in a pregnancy which concluded with the birth of the subject child on 13 June 2002. The parties submitted a birth certificate which reflected that petitioner was the father of the child and that respondent was the mother of the subject child. According to the parties, the child was born premature and had to remain in the hospital for over one month after his birth. In a letter dated 20 September 2007 written by a doctor, he described the subject child as a five-year old child born premature and asthmatic. The child has been diagnosed as having asthma but the parties disagree whether the condition is aggravated by the consumption of dairy products.