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Plaintiff had made appointments to an abortion clinic at 1995 Broadway.


Plaintiff had made appointments to an abortionclinic at 1995 Broadway. Upon arriving thereat, she was asked to complete some forms, pay the appropriate fees and subject to a urine and blood test. She was then directed into another room where she changed into a paper gown and was brought into an operating room. Her blood pressure was then allegedly taken and the doctor who would perform the abortion came in and introduced himself. The doctor then explained the procedure and performed such procedure, thereafter. After the procedure, the doctor went into the recovery room, took the plaintiffs blood pressure and asked how she felt. Nothing was mentioned at the time about returning to the clinic, neither did he discuss anything about any follow-up visits with her. However, he told her that she might experience some cramps and that if they became severe or painful not to take aspirin but Tylenol. Just before plaintiff left, a nurse gave her a “Rogam” shot telling her they were giving it to her because she was RH negative. The charge for the shot was extra, $20 or $25. After plaintiff paid and was getting ready to leave, the nurse in the reception area told her to call and make an appointment for two weeks later for a follow-up visit but did not offer to make the appointment at that time.

Days after the abortion, plaintiff called and made an appointment or a follow-up visit two Saturdays from the date on which she had the procedure done (i.e. for January 23). However, the second week after the abortion she experienced cramps and took Tylenol.

On 16 January 1982, the abortion clinic received a pathology report which suggested the possibility that she was still pregnant. A notation on the pathology report indicated that the plaintiff had been called about the results and told to return to the center for a follow-up; however, plaintiff testified that she never received any such call. In fact, she rescheduled her 23 January 1982 appointment for the following Saturday because a snowstorm had been predicted for the 23rd.

At the beginning of the third week after the abortion, plaintiff experienced additional cramps which became steadily worse until she had to leave work. She called the Lincoln facility on 28 January 1982 and was instructed to return that day. She requested an appointment for the following day but when the cramps grew even worse plaintiff asked her boyfriend to take her to the hospital in New Jersey. While in the hospital she experienced even more severe cramps and because she felt “pressure” went into the ladies’ room. While on the toilet, plaintiff suffered a spontaneous miscarriage (birth injury or birth injury accident) and delivered a four and one-half inch fetus into the toilet. She testified she had looked down and saw her fetus, a baby boy hanging from her and became hysterical and started to scream. She was rushed with the fetus, still attached to the umbilical cord, to an examination table where a doctor delivered the placenta. Plaintiff remained in the hospital for about two or three days.

Plaintiff alleged that she suffered post-traumatic depression, nightmares and sleeplessness. She also became withdrawn and was reluctant to resume normal intimate relations with men for a substantial period of time. Further, she visited a psychiatrist who testified as to his diagnosis that plaintiff still suffered from the emotional trauma.

Meanwhile, from a testimony elicited by plaintiff, a certain doctor, a urologist, took over the lease to almost 7,000 square feet of medical and office space located on the third floor at 1995 Broadway. He leased from its owner all of the medical equipment on the premises for $23,000 per month. He paid an additional $2,000 per month for 1,000 square feet of office space on the floor for his own personal use and then entered into an agreement with the landlord which gave him the exclusive right to provide any physician practicing on the premises of the third floor with “clerical and administrative” support services. The doctor also filed certificates to do business under two business names and advertised for abortions under these names. He also entered into an agreement with a doctor who was responsible for coordinating the abortion schedules. Doctors doing abortions could only use the procedure rooms with the urologist’s approval and he and he alone reviewed the credentials of gynecologists or other physicians seeking to practice on the third floor. In addition to placing advertising for abortion services on the premises under the two business names, the urologist provided the abortion service operation through an entity he owned with administrative help. He hired receptionists, secretaries, and other medical support personnel from The Bronx and Brooklyn and provided the operation with telephone facilities and other services as well. The entire third floor had only one switchboard managed by the urologist’s employees and there was only one telephone number for all the offices on the floor. This was the telephone number used in the advertisements of the clinic seeking abortion patients. Monies were collected from abortion service patients by the employees of the urologist and a portion of those monies was allocated to the various persons performing abortions.

Hence, the plaintiff sued, for medical malpractice, the doctor who performed the abortion and the person who operates the abortion clinic, individually, and under the two business names operated. In addition, plaintiff joined the doctor who was charged with coordinating the operating schedules and overseeing the procedures performed at the facility as well as the actual name of the abortion clinic, that is, a Medical Center and the Medical Building Associates alleging that these were entities related to the business operated by the urologist at the same location.

After a jury verdict of $315,000 was returned in favor of the plaintiff, the IAS court granted a new trial on all issues unless the plaintiff agreed to accept the reduced amount of $125,000, the sum of $20,000 representing pain and suffering and $105,000 for plaintiff’s emotional distress.

The court rules that the plaintiff’s injuries were not a natural accompaniment of her underlying condition or illness for which she was treated. The plaintiff, herein, alleged and proved physical injury distinct from any injury suffered by the fetus. The plaintiff’s emotional distress does not derive so much as from what happened to the fetus, but rather from what happened to her in undergoing a spontaneous miscarriage. Further, as the jury found, her injuries were the direct result of the defendants’ negligence in failing to advise her that she could still be pregnant, thereby enabling her to obtain a timely second abortion. The decisions and actions involved does not require us to regard the case as something it is not–i.e., an effort by plaintiff to assert a claim for damages on behalf of her unborn child for injuries done to it or a claim for damages based on plaintiff’s emotional and psychological stress in witnessing and knowing of the injury to the fetus and its loss.

The malpractice found by the jury was the proximate cause of the injuries suffered by plaintiff. There was proof submitted to the jury that had the fact that the abortion being unsuccessful been communicated to the plaintiff, she would have sought appropriate medical treatment, i.e., a second abortion. Plaintiff had testified that she had discussed her pregnancy with her boyfriend and decided that she would be unable to rear a child.

Moreover, while the concept of proximate cause is circumscribed by policy considerations which limit the search for legal causes to place manageable limits upon the liability that flows from negligent conduct, there was enough evidence before the jury to establish a prima facie case generally showing that the negligence of the urologist’s employees, in not advising plaintiff of the lab report indicating the abortion was unsuccessful, was a substantial cause of the events which produced the injury.

The plaintiff’s negligence in not returning on her own for a follow-up examination was not the proximate cause of her injuries. There are degrees of negligence and degrees of proximate cause circumscribed by policy considerations. It is apparent that plaintiff was negligent for not keeping a doctor’s appointment, or for not calling and making such an appointment when she felt a twinge or cramp; however, compared to the negligence of the doctor or his staff who did not call to inform her that the procedure was unsuccessful and to come back in, this negligence of the plaintiff was not the proximate cause of the injuries. The verdict, therefore, contrary to the assertion of defendant, was sensible, practical and consistent with the evidence.

Accordingly, malpractice exists based on the failure to properly advise the plaintiff of her condition which caused both her physical and emotional injuries.

The motion to dismiss the plaintiff’s complaint is denied, the motion to set aside the verdict is granted, unless the parties stipulated to the sum of $125,000 as damages, should be affirmed, without costs or disbursements.

Medical Professionals are given the utmost trust for the lives of those who are sick. Any mistake they make puts the lives of their patients at risk. Someone may die if a doctor is not equipped with the degree of care or knowledge that is required of him. If you have been injured or you know someone who is as a result of a medical malpractice or when death has resulted, Stephen Bilkis & Associates can help you with the legal aspect. Our NYC Medical Malpractice Lawyers or our NYC Birth Injury Lawyers know everything there is to know in these types of cases.

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