Birth Injury Lawyer Blog

A legal action was filed by a mother and his son

Mon, 14 May 2012 16:52:25 -0500

A legal action was filed by a mother and his son who wants to recover damages for medical malpractice. The complainant’s demands an appeal from the order of the Supreme Court granting his opponent’s request of dismissing their complaint.

The incident started when the mother began receiving a prenatal care at the hospital which is owned and operated by the opponent on the legal matter. At 31 weeks of gestation, the mother was admitted to the said hospital in Queens for signs of preterm labor. During the admission, the mother’s blood glucose level was measured at 26 mg/dL, an abnormally low level, but was consequently measured at a normal level. The mother was then discharged after two days. At 34 weeks of gestation, the mother experienced a grand mal seizure and was brought again to the said institution by the emergency medical services personnel. However, after the same sort of assessment the mother was discharged. According to the past medical history of the mother, she had seizures during her childhood.

A month after the said seizure, the mother gave birth to a baby boy through a normal delivery. The baby boy got an excellent score from the test given to newborns and initially appeared normal. However, when the baby boy reached his 40 minutes in life, the baby began experiencing tremors and was admitted to the neonatal intensive care unit.

According to the testimony of the director of neonatology of the institution, tremors are signs of hypoglycemia, a lowering of blood glucose in a newborn. When the baby was admitted to the neonatal intensive care unit, his blood glucose level was measured through a heel stick test at less than 20 mg/dL. Later, the laboratory again drawn blood from the baby and measured a glucose level of 3 mg/dL. According to the doctor, a normal glucose level for an infant approximately 40 minutes old is about 40 mg/dL. The baby was given glucose via intravenous push and glucose infusion and his blood glucose level measured at 71 mg/dL, which is within the normal limits. Thereafter, the baby's blood glucose level remained within normal limits until he was discharged from the hospital.

A year later, the baby was referred to the same institution for evaluation due to delays in reaching certain developmental milestones. Subsequently, the baby underwent a brain imaging examination at the other hospital. The brain imaging results revealed some abnormalities and the baby was diagnosed with cerebral palsy.

The complainant’s initiated the legal action to recover damages for medical malpractice against the hospital. The complainant’s claimed that the hospital failed to timely diagnose and treat the hypoglycemia of both the mother and the baby. The complainant’s claimed that the baby’s hypoglycemia had caused, among other things, his brain injury and cerebral palsy.
By notice of motion, the hospital moved to ask for decision without proceeding to dismiss the complaint or in the alternative, for a hearing to test the standards for admitting scientific evidences. In the event, the opponent offered a sworn statement from an expert stating that the baby's injuries were caused by the possible transient episode of maternal hypoglycemia during pregnancy, or the transient episode of hypoglycemia after the baby’s birth. In addition, the opponent supported its motion with the expert affirmation of a doctor, who argued that the baby's episode of neonatal hypoglycemia did not cause his alleged injuries. According to the doctor, the abnormalities shown on the result of the imaging was a typical lesion resulting from a decrease in oxygenation to the brain. The doctor also states that the baby's brain injury, as shown on his MRI, was a result of decreased oxygenation to his brain at 32-34 weeks gestation, and was not caused by the transient hypoglycemic episode at his birth. The doctor also asserted that it was not accepted in the medical profession that a short and promptly treated episode of hypoglycemia in a newborn could cause brain injury.

The complainant’s opposed the opponent’s argument and states that it is improper to demand for decision without trial because there were triable issues of fact concerning the nature and cause of the baby's illness. The complainant’s also submitted the expert affirmation of another doctor and stated that the baby had been born with profound hypoglycemia, and that the delay in diagnosis and treatment was a significant factor causing his brain injury. The Staten Island doctor of the complainants’ disagreed with what the doctor of the opponent’s conclusion that the mother's seizure had caused the baby's brain injuries. The doctor of the complainant further stated that the baby’s normal appearance and good scores at test after his birth and the delay of the onset of his tremors until approximately 40 minutes after birth were consistent with depletion of glucose stores after birth rather than a primary inadequate oxygen damage . The doctor characterized the baby’s tremors as one of the seizure in newborn and further stated that the tremors or seizures had been caused by his profound hypoglycemia at birth. Their doctor also asserts that the imaging result was essentially accurate in its findings.

After the said arguments, the Supreme Court granted the branch of the opponent’s motion for a trial to admit scientific evidences and held in suspension the other motion which was for judgment without trial dismissing the complaint. The Supreme Court determined that the complainants’ experts had provided limited reference to medical or scientific literature to support their opinions, and that a trial should be held to determine whether their assumption were based on principles which were sufficiently established to have gained general acceptance. The court then conducted the hearing for admission of scientific evidences.

After the trial, the Supreme Court granted the branch of the opponent's motion for decision with trial to dismiss the complaint after concluding that the complainants' expert testimony regarding causation was irrelevant. In addition, the Supreme Court concluded that the doctor’s inability to label any of the medical literature he had reviewed as reliable ran counter to a conclusion that the findings set forth were generally accepted in the scientific community.
Based on the record, the theory of causation supported by the complainants' experts is acceptable at trial and the court improperly granted the opponent's motion to dismiss the complaint without any trial. Although the opponent’s expert submissions established that the baby's brain damage was not caused by his episode of neonatal hypoglycemia, the complainants raised a triable issue of fact through the submission of acceptable expert opinion evidence. Consequently, under the particular situation of the case, the Supreme Court should have denied the branch of the opponent's motion to dismiss the complaint without any trial. Furthermore, the appeal from the intermediate order must be dismissed because the right of direct appeal there terminated with the entry of decision in the action. The issues raised on the appeal from the order are brought up for review and have been considered from the decision.

The court accordingly ordered that the judgment is reversed. The branch of the opponent's motion to dismiss the complaint without any trial is denied and the order is modified appropriately. In addition, the court ordered that the appeal from the order is dismissed and the one bill of costs is awarded to the complainants.

A mother on behalf of her baby girl and the baby’s twin

Wed, 09 May 2012 16:51:32 -0500

A mother on behalf of her baby girl and the baby’s twin, who was dead at birth, filed a complaint against the hospital and three other individuals. The opponent, however, sought an order dismissing the first, second, fifth and sixth reason’s for action asserted in the complaint on the grounds that they failed to state reasons for the action which relief could be granted. The opponent contended that the four (4) reasons for the action were dismissible because no reason for action exists either on behalf of the baby’s twin for injuries and death occurring in the uterus or on behalf of the mother for mental or emotional distress or from loss of society. At the same time, the mother made a motion seeking leave to revise the complaint as to the second and sixth reasons for the action and to add a new one identified as a seventh reason for the action.

The revision proposed for the second reason for the action sought to clarify the allegation that the lack of informed consent to the mother caused serious damages and injuries to her infant and spoke in terms of a reasonably prudent person rather than the mother. The revision proposed for the sixth reason of the action eliminated the mother's claim for the loss of society, companionship and consortium of the deceased infant and plainly stated that the mother's claim for the mental distress includes emotional upset in attending the dead infant. The seventh reason for the action proposed that the opponents failed to inform the mother of her condition and the deceased infant's condition as well as the dangers of the treatment performed and the alternate treatment available. Further, that the lack of informed consent was a proximate reason of the injury for which recovery is sought. The reason for the action would further assert that the mother would not have undergone the treatment if she had been fully informed. The seventh cause of action would then allege that due to the death of the infant, the mother had been rendered sick and continued to suffer great physical pain and mental distress requiring medical care. As the mother opposes the opponent’s motion, she pointed to the tremendous evolution in the concept of tortious conduct within the state law as warranting denial of the dismissal motion. Subsequently, the court in Manhattan ordered that the mother’s motion to revise the complaint is accordingly denied.

The mother moves for an order granting re-argument and renewal of the order. She claims that her request for permission to revise the complaint and include a reason for the action based on lack of informed consent and to re-plead the sixth reason and include the emotional pain and distress in attending the dead infant should be granted.

The complainant mother, in support of the motion, contends that in the previous case decisions there was no settlement between the act of medical malpractice, the death of the fetus and the knowledge of the death which caused the emotional harm since the procedure in assessing the infant’s abnormalities took place several weeks before awareness that the infant had died due to the procedure. In the instant case, the mother contends that the negligence that caused the death of the infant and the knowledge of the death resulted immediately in extreme emotional harm. Even if the mother’s contentions are not entirely clear, it appears that they present two propositions which includes that the mother while in labor witnessed the negligent acts and was in the zone of danger. She was harmed by the injury to her child and the mother suffered actual physical damages. Therefore, the mother argues that the reason for the action of emotional upset while attending a dead infant must be permitted since there is independent physical injury.

The opponent’s opposes the motion contending that the emotional pain and suffering of the mother is too remote to be compensable under the policy considerations expressed by the state courts. As to modifying the complaint, the opponents contend on claiming that there has been no identification of the procedure which was performed without the mother’s consent and there is no affidavit from the mother herself attesting to any lack of informed consent.
The emergent issue which warrants re-examination if a mother can recover for emotional injuries resulting from the death of her fetus. Directing aside prior holdings excluding recovery in such actions, the court held that common-sense justice mandated that such child is capable of being delivered and remaining alive separate from its mother was entitled to relief. The court then sent a clear signal regarding derivative actions by stating that no one seems to claim that the mother, in her own name and for herself, could get damages for the injuries to her infant. Thereafter, while reaffirming that there could be no recovery for mental distress and emotional disturbance resulting from defectively born children, the court permitted certain restricted parental recovery for injuries resulting from defectively born children.

Based on the record, in upholding the parents' rights to recovery on their own behalf, the court explained that the fact that the complainant’s wrongful life claims was brought on behalf of their infants do not state legally cognizable reasons for action. In as much as they fail to assert ascertainable damages, there is no way that it affects the validity of the complainants' claims for financial loss. The complainant in Long Island states the reasons for the action on breach of duty flowing from the opponents to themselves, resulting damage to the complainant’s for which compensation may be readily fixed. Further, it is not to say that the complainant may recover for psychic or emotional harm alleged to have occurred as a consequence of the birth injury of their infants. The recovery of damages for such injuries must necessarily be limited.
An additional factor influencing against the application of the zone of danger rule lies in the element of the rule which requires that the injury observed be to an immediate family member. To hold that the zone of danger rule applies would be to determine that a fetus is a member of the immediate family. As far as tort law is concerned, a fetus has no life until birth. It follows that someone who was never alive could not be considered a member of the family and could not be within the zone of danger.

The mother’s allegations must be assumed to be true. In addition, a request to revise the pleadings must be approached with liberality especially since there is no prejudice to the opponents. However, despite of the principles and the mother’s contentions upon the motion, the court do not read the complaint as setting forth a separate reason for the action by the mother for independent physical injuries.

Consequently, the court decided that re-argument should be granted and that upon re-argument, the motion is denied. However, the mother individually is granted to serve a revised complaint which deletes the reason for action relating to the dead fetus and clearly states that it is her claim. The reason for the action of emotional upset in attending a dead fetus including the lack of informed consent provided that there is an independent physical injury to her.
Major innovations in the field of medical science are because of the developing modern technologies that certainly help us in curing diseases.

On September of 1974, a woman (1st plaintiff-wife), 37 years of age, conceived a child.

Sun, 06 May 2012 16:49:27 -0500

In September of 1974, a woman (1st plaintiff-wife), 37 years of age, conceived a child. After the woman and her husband learned of the pregnancy in October, they engaged the services of defendants, specialists in the field of obstetrics and gynecology. Thereafter, from approximately the tenth week of pregnancy until the birth of their child, the pregnant woman remained under defendants' exclusive care.

On 10 May 1975, the woman gave birth to a retarded and brain-damaged infant who suffers, and will continue to suffer for the remainder of her life, from Down's Syndrome, commonly known as mongolism.

The plaintiffs claim that throughout the period during which the 1st plaintiff-wife was under the care of the defendants, plaintiffs were never advised by the defendants of - the increased risk of Down's Syndrome in children born to women over 35 years of age and the availability of an amniocentesis test to determine whether the fetus carried by the 1st plaintiff-wife would be born afflicted with Down's Syndrome.

Hence, plaintiffs (1st plaintiff-wife and 1st plaintiff-husband) commenced this action seeking - damages on behalf of the infant for "wrongful life", and, in their own right, for the various sums of money they will be forced to expend for the long-term institutional care of their retarded child; damages for the emotional and physical injury suffered by the plaintiff-wife as a result of the birth of her child; and damages for the injury suffered by the plaintiff-husband occasioned by the loss of his wife's services and the medical expenses stemming from her treatment.

Meanwhile, in June of 1969, in the companion case, another woman (2nd plaintiff-wife) gave birth to a baby who, afflicted with polycystic kidney disease, died only five hours after birth. Concerned with a possible reoccurrence of this disease in a child conceived in the future, the woman and her husband consulted defendants, the obstetricians, who treated the wife during her first pregnancy, to determine the likelihood of this contingency. In response to 2nd plaintiffs' inquiry, defendants are alleged to have informed plaintiffs that inasmuch as polycystic kidney disease was not hereditary, the chances of their conceiving a second child afflicted with this disease were "practically nil". Based upon this information, the 2nd plaintiffs alleged that they exercised a conscious choice to seek conception of a second child; as a result, the wife again became pregnant and gave birth in July 1970 to a child who similarly suffered from polycystic kidney disease. Unlike their first child, however, plaintiffs' second child survived for two and one-half years before succumbing to this progressive disease.

The 2nd plaintiffs allege that contrary to defendants' advice polycystic kidney disease is in fact an inherited condition, and that if they had they been correctly informed of the true risk of reoccurrence of this disease in a second child, they would not have chosen to conceive.

Hence, the 2nd plaintiffs commenced this action seeking - damages on behalf of the infant for "wrongful life" and, in their own right, for the pecuniary expense they have borne for the care and treatment of their child until her death; damages for the emotional and physical injuries suffered by the 2nd plaintiff-wife as the result of the birth of her child; damages for emotional injuries and expenses suffered by the 2nd plaintiff-husband; damages for the injury suffered by the plaintiff-husband occasioned by the loss of his wife's services; and damages on behalf of plaintiffs, as administrators of their child's estate, for wrongful death.

Do the complaints state cognizable causes of action that the court may rule upon?

A thoughtful analysis of the validity of "wrongful life" as an emerging legal concept requires, in the first instance, a clear understanding of the alleged wrong upon which the cause of action is predicated. Not surprisingly, the term "wrongful life" has functioned as a broad umbrella under which plaintiffs alleging factually divergent wrongs have sought judicial recognition of their claims. To be distinguished from the cases before us are those in which recovery is sought for what may perhaps be most appropriately labeled "wrongful conception", wherein parents, one of whom has undergone an unsuccessful surgical birth control procedure, have sought damages for the birth of an unplanned child. There, damages have not been sought on behalf of the child a healthy and normal infant but by the parents for expenses attributable to the birth, including the pecuniary expense of rearing the child. Judicial reaction to the "wrongful conception" cause of action has been mixed.

Plaintiffs' complaints sound essentially in negligence or medical malpractice. As in any cause of action founded upon negligence, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party.

An examination of plaintiffs' complaints leads to the conclusion that, insofar as plaintiffs allege claims on behalf of their infants, whether denominated as claims for wrongful life or otherwise, they have failed to state legally cognizable causes of action.

There are two flaws in plaintiffs' claims on behalf of their infants for wrongful life. First, it does not appear that the infants suffered any legally cognizable injury. There is no precedent for recognition of "the fundamental right of a child to be born as a whole, functional human being". Surely the use of somewhat similar words in another context affords no such basis. Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Second, the remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant's parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant's negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant's parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the choice of life in an impaired state and nonexistence. This is a comparison the law is not equipped to make.

Accordingly, the court rules that the plaintiffs' complaints insofar as they seek damages on behalf of their infants for wrongful life should be dismissed for failure to state legally cognizable causes of action. Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant's damages is best reserved for legislative, rather than judicial, attention.

On the validity of plaintiffs' causes of action brought in their own right for damages accruing as a consequence of the birth of their infants. There can be no dispute at this stage of the pleadings that plaintiffs have alleged the existence of a duty flowing from defendants to themselves and that the breach of that duty was the proximate cause of the birth of their infants. That they have been damaged by the alleged negligence of defendants has also been pleaded. Unlike the causes of action brought on behalf of their infants for wrongful life, plaintiffs' causes of action, also founded essentially upon a theory of negligence or medical malpractice, do allege ascertainable damages: the pecuniary expense which they have borne, and must continue to bear, for the care and treatment of their infants. Certainly, assuming the validity of plaintiffs' allegations, it can be said in traditional tort language that if it weren’t for the defendants' breach of their duty to advise plaintiffs, the latter would not have been required to assume these obligations. The fact that plaintiffs' wrongful life claims brought on behalf of their infants do not state legally cognizable causes of action inasmuch as they fail to allege ascertainable damages in no way affects the validity of plaintiffs' claims for pecuniary loss. Plaintiffs’ causes of action are predicated upon a breach of a duty flowing from the defendants to themselves, as prospective parents, resulting in damage to plaintiffs for whom compensation may be readily fixed. However, this does not mean that plaintiffs may actually recover for psychic or emotional harm alleged to have occurred as a consequence of the birth of their infants in an impaired state (birth injury or birth injury accident). While sympathetic to the plight of the parents, the court declines, for policy reasons, to sanction the recovery of damages. To permit recovery would have "inevitably led to the drawing of artificial and arbitrary boundaries."

To permit plaintiffs to recover for pecuniary loss while precluding recovery for alleged emotional injuries suffered as a result of their infants' birth does not run counter to this court's decision

We had little difficulty in concluding that the psychological impact resulting from a daughter's receipt of a notice incorrectly indicating that her mother had expired would be debilitating. That a daughter might receive such notice with mixed emotions lacks any rational basis in human experience. The same cannot be confidently said with respect to the birth of a child, the conception of which was planned and fully desired by the parents. To be sure, parents of a deformed infant will suffer the anguish that only parents can experience upon the birth of a child in an impaired state. However, notwithstanding the birth of a child afflicted with an abnormality, and certainly dependent upon the extent of the affliction, parents may yet experience a love that even an abnormality cannot fully dampen. To assess damages for emotional harm endured by the parents of such a child would, in all fairness, require consideration of this factor in mitigation of the parents' emotional injuries in which the calculation of damages for plaintiffs' emotional injuries remains too speculative to permit recovery notwithstanding the breach of a duty flowing from defendants to themselves. As in the case of plaintiffs' causes of action for damages on behalf of their infants for wrongful life, the cognizability of their actions for emotional harm is a question best left for legislative address.

Accordingly, on the 1st plaintiffs, the complaint which was made in Staten Island and also Westchester is dismissed except to the extent that it seeks recovery of the sums expended for the long-term institutional care of their retarded child. On the 2nd plaintiffs, the complaint is also dismissed except to the extent that it seeks recovery for the sums expended for the care and treatment of their child until her death.

A legal action was filed by a mother to recover damages

Thu, 03 May 2012 16:48:21 -0500

A legal action was filed by a mother to recover damages for the alleged medical malpractice against the medical professionals who handled her medical care and treatment during her pregnancy. The mother asserted in her first reason of action that due to her physician’s negligent care and treatment for her entire pregnancy up to her delivery, she gave birth to an infant suffering from congenital defects. The mother further alleges that the physicians’ failure to diagnose the fetus’ congenital defects during the term of the pregnancy resulted in the infant being born with multiple life threatening congenital defects causing her to suffer substantial economic loss for medical care of the infant. On the mother’s second reason of action, she claimed that due to the negligence of her physicians, she was caused to endure pain, suffering, anxiety and the emotional distress of giving birth to a disabled child, learning that the child suffered from multiple congenital defects and emotional injury flowing from those disabilities. The mother further alleges independent personal injury resulted from the surgery necessary to remove a portion of her liver to transplant into her infant son and the emotional injury stemming from her transplant surgery. The mother claimed that if not for the negligence of the physicians, her liver transplant surgery would not have been necessary. The third reason of action in the complaint is a derivative claim of the husband for medical expenses stemming from his wife's liver transplant surgery and the attendant loss of services.

The physicians now move for a request to dismiss the second and third reasons of action in the complaint on the grounds that emotional distress is not recoverable as a result of the birth of a child born with congenital defects and the mother’s claim for personal injury is unrelated to the care and treatment rendered by the physicians during her pregnancy. The physicians in Nassau and Suffolk state that the mother did not suffer an independent physical damages apart from those recognized in normal labor and delivery of a child and the surgery complaint was a result of the mother’s voluntary donation of a portion of her liver to her child. The physicians further assert that the derivative claim of the husband also must fail as it is predicated upon the emotional injuries claimed by the mother and also from the mother's voluntary donation of a portion of her liver.

The complainants oppose the motion on the grounds that the physicians' misunderstand the second reason of action as a claim exclusively for emotional injury flowing from the fact that the complainants’ son was born with congenital deformities. The complainants argue that the second reason of action seeks to recover for the physical and emotional injury of the mother related to the surgery necessary to donate a portion of her liver to her infant son, as well as the emotional damages of a parent of a disabled child, and the emotional damages flowing from the disabilities of her infant son. The complainants also argue that the derivative claim in the third reason of action flows from the physical and emotional damages of the wife as a result of the transplant surgery.

It is acknowledged that the mother was under the care and treatment of the physician during her pregnancy and the mother gave birth to an infant son with multiple congenital abnormalities. It is also certain that the physicians did not cause the congenital defects but the mother asserted that the physician failed to properly interpret the sonograms during the pregnancy and failed to order additional testing which would have revealed the abnormalities and which would have afforded the complainants the opportunity to terminate the pregnancy.
The issue therefore, is whether the complainants may recover for the mother's emotional pain and distress of carrying a child to term, giving birth, and learning upon delivery that the child suffered from multiple congenital defects. The second issue concerns whether the mother of a child, as the only viable liver donor, can recover for alleged physical and emotional damages related to a voluntary elective surgical procedure, performed on the mother approximately one year after the birth of her child. The husband's derivative claim as alleged in the third reason of action flows directly from the wife's claims concerning her transplant surgery and is determined accordingly. Solely for the purposes of the motion, the court will assume the physicians liability in failing to interpret the sonograms and for failing to order additional tests such as a level 2 sonogram.

With regard to the first issue, the mother’s claim for emotional distress associated with the delivery of a child with multiple congenital defects has previously been dealt with by the court and it is not a legally cognizable claim. It is well settled that the complainant parents may not recover for the emotional harm alleged to have occurred as a consequence of the birth of their infant with multiple congenital defects.

The complainants also argue in their second reason of action that the mother's voluntary liver transplant surgery was necessitated by the physicians' negligence and they are therefore liable. The complainant’s further asserted that due to the condition known as biliary atresia, discovered after the child's birth, the drainage of bile from the liver was prevented and the infant suffered irreversible liver damage requiring a liver transplant. The mother affirmed that she was the only viable donor for her child. In the mother’s affidavit, she stated that the liver donation which she agreed to and underwent was a very necessary action undertaken by a parent, upon the advice of a highly qualified medical specialist, to support her son whom she had been advised would not survive without the benefit of a liver transplant. The mother also claimed that she did not hesitate to undertake the parental responsibility to enable her son to survive when she agreed to donate a portion of her liver. The mother's donation of a portion of her liver was a very admirable action and was one which, the court presumes, every loving parent would undertake for the benefit of their child. The complainant however, seeks to have the court expand liability to the physicians for a voluntary donation which it is not inclined to do.

During the time that the mother underwent the transplant surgery, she was no longer a patient of the physicians. She did not consult with the physicians concerning her transplant surgery and had not been their patient for approximately one year. Any duty that the physicians owed to the mother involving her pregnancy and the birth of her child had ended. In addition, the decision by the parents, particularly the mother as the only viable donor, to voluntarily undergo organ transplant surgery for the benefit of the child constituted an independent intervening act which was not a normal or foreseeable consequence of the physicians' alleged negligence. Furthermore, any pain and suffering or emotional distress stemming from the transplant surgery would also not be recoverable. The husband's derivative claim in the third reason of action, predicated upon the claims in the second reason, also fail for the reasons mentioned above.

As a result, the physicians' motion to dismiss the second and third reason of action in the verified complaint is granted and the first reason of action for financial damages shall continue.

A mother and her baby have pleaded a separate cause of action.

Tue, 01 May 2012 16:46:45 -0500

A mother and her baby have pleaded a separate cause of action. The accused hospital moves to dismiss the infant's cause of action, brought by her maternal grandfather as Guardian appointed by an order of the Court.

It is claimed that the hospital’s negligence, failure to provide adequate care and supervision, failure to protect and safeguard her health and physical body from harm from others while the mother was in the custody of the hospital resulted in the infant’s conception and being born out of wedlock to a mentally deficient mother. Furthermore, it is said that the infant was deprived of property rights, normal childhood, home life, proper parental care, support and rearing has caused her to bear the stigma of illegitimacy and has otherwise been greatly injured and such injuries are represented in plead sum of $100,000.

The hospital does not assail the mother's cause of action wherein her Guardian seeks $50,000 for the claimed carnal assault of the mother while a patient at the said hospital, resulting in the pregnancy and birth allegedly due to the State Hospital's insufficient care and supervision of said mentally ill patient. The legal posture is not inconsistent with the instant motion. In effect, the State Hospital says that if proven, there is a recognized cause of action in favor of the mother but regardless of proof the infant has no cause of action such as pleaded. The hospital emphasizes that the claimed cause of action of the infant has never been successfully pleaded in any other case although there have been trials of a mother's cause of action.
On the motion, only the question of a claimant's pleading is presented for determination. It is not the Court’s duty to consider the merits of the claimants' claims or the credibility of any witness. On a motion to dismiss a pleading, one is confined to the boundaries of the pleaded matters which are accepted as though proven. The motion admits all facts alleged in the complaint and inferences that may be fairly drawn.

Being compelled to accept the pleaded facts as true, it is the Court’s determination that the cause of action is maintainable. Assuming that the accused did not give a female mental patient adequate care and supervision resulting her from being sexually attacked, the foreseeable combination of persons and event is actionable negligence and a proximate cause of the pregnancy and birth. The novelty and lack of precedent for declaring that the illegitimate baby has a cause of action should not be a deterrent to such ruling. Legal writings abound with glorious statements as to what the law is or should be. In simple paraphrase, the law is what the law should be.

The question therefore is not whether there is any precedent for the action, but whether the accused inflicted such wrongdoing upon the complainant as resulted in lawful damages. The separate efforts of capable counsel at bar have evoked no case where liability was fastened on a careless hospital, sovereign state or non-personal entity at the suit of the issue of a sexual assault. The problem is whether a tort was committed upon the child. Thus, the second question to confront the Court is whether tort can be inflicted upon someone simultaneously with its conception.

Although other branches of the law, such as property and inheritance, recognized the legal existence of a child from the moment of conception, in tort, a child is not regarded as a being separate from its mother until it was born. In the last few years a change has taken place in the law pertaining to prenatal physical injuries. From 1884 to 1946 it was universally held that under the common law there could be no recovery for such injuries. It was not until 1946 that a major breakthrough was made under the common law although one that received less attention had occurred in 1924. Gradually thereafter various jurisdictions permitted actions for prenatal birth injuries if a child was viable at the time of injury and if it survived birth. However, the exact time when viability occurs is uncertain. No medical authority can say with accuracy just at what moment a child can live when separated from its mother. Babies have survived in incubators ever further removed from the time of normal birth. The law has slowly come to realize these uncertainties and the viability test is being abandoned. Now complaints are being sustained where the pleaded facts show that the child was not, or might not have been, viable when the injury occurred.

It should not be disputed that children born illegitimate have suffered an injury. If legitimacy does not take place, the injury is continuous and irreparable. Such birth injury is not as tangible as a physical defect but it is as real. It is acknowledged by the State itself. The statutory provisions that a child's illegitimacy must be suppressed in certain public records, is an admission of the hardship that can be caused by its disclosure. An illegitimate child's very birth places him under a disability.

The right of a person to recover for a pre-natal birth injury inflicted during the ninth month of the mother's pregnancy was upheld by the Court of Appeals. The case seeks to advance the area of recovery to injury at a much earlier stage of the life of the fetus up to the third month of pregnancy. The same rule should govern both cases. The opinion states that while the point at which the fetus becomes viable has been of usefulness in drawing some legal distinctions, the underlying problem that has usually troubled the judges who have written on the subject of recovery for pre-natal injuries, has been in fixing the point of being separated from the mother which begins when there is biological separation.

The opinion continues that in some groups of cases when it became necessary to decide when the separate legal entity of life began, the judges at common law took a view quite harmonious with present biological theory. In matters of descent and distribution they held that the child was in being from the time of conception if later born alive under conditions in which continuance in life was to be reasonably expected.

If the child born after an injury sustained at any period of his pre-natal life can prove the effect on him of the tort, then the complainant will be able to make out a right to recover.
The infant's pleading alleges damages wrongfully inflicted at conception. The accused claims lack of basis. The sum of the argument against the complainant is that there is no New York decision in which such a claim has been enforced. The act or acts of which the infant complains were reasonably foreseeable by the State Hospital and hospitals in Queens and Staten Island which owed a duty to its patient and her issue. When a pleading alleges that a breach of a foreseeable duty was a proximate cause of damages, a claimant should be entitled to a trial. On the oral argument of the cross-motion to dismiss, the complainant withdrew the portion which alleges that the court has no jurisdiction of the cause of action. The cross-motion to dismiss the second cause of action is denied.

Thirty years ago, a mother ingested a pill called diethylstilbestrol

Sun, 29 Apr 2012 16:45:34 -0500

Thirty years ago, a mother ingested a pill called diethylstilbestrol (DES) during her pregnancy which resulted in the birth of the complainant. The woman alleges that because of her mother’s uterus’ exposure to DES, the woman developed a variety of abnormalities and deformities in her reproductive system. As a result, several of her pregnancies terminated in spontaneous abortions and another resulted in the premature birth. The pre-term granddaughter suffers from cerebral palsy and other disabilities that they attribute to her premature delivery, birth injury and ultimately, to the woman’s mother’s ingestion of DES.
The action was commenced by the woman and her husband individually and on behalf of their daughter against several manufacturers of DES. After the issue was joined, the accused parties sought summary judgment to dismiss the complaint. The accused parties contended that the actions were barred by the Statute of Limitations and by the complainants’ inability to identify the manufacturer of the drug ingested by the mother of the woman. In addition, the accused parties argued that the daughter’s claims of a preconception tort presented no cognizable cause of action.

The Supreme Court agreed with the accused parties that the claims stemming from the daughter’s injuries were not legally cognizable and the court dismissed all four causes of action brought on her behalf and those asserted by her parents for their emotional injuries resulting from the daughter’s birth. The manufacturer’s motions were otherwise denied, however, leaving intact the woman’s claims relating to her own injuries and her husband’s derivative claim based upon his wife's birth injuries.

On cross appeals, the Appellate Division modified by reinstating the third cause of action in the complaint that cause of action brought on behalf of the daughter based upon strict products liability. The accused parties sought the Court for leave to appeal, which the Appellate Division granted.

It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent miscarriages. In 1971, the Food and Drug Administration banned the drug's use for the treatment of problems of pregnancy after studies established a link between uterus exposure to DES and the occurrence in teen-age women of a rare form of vaginal and cervical cancer. The complainants allege that in uterus exposure to DES has since been linked to other genital tract aberrations in DES daughters, including malformations or immaturity of the uterus, cervical abnormalities, misshapen fallopian tubes and abnormal cell and tissue growth, all of which has caused in the population a marked increase in the incidence of infertility, miscarriages, premature births and ectopic pregnancies.
The Legislature and the Court have both expressed concern for the victims of the tragedy by removing legal barriers to their tort recovery--barriers which may have had their place in other contexts, but which in DES litigation worked a peculiar injustice because of the ways in which DES was developed, marketed and sold and because of the insidious nature of its harm. Hospitals in Nassau and Suffolk are aware of this.

More recently, the Court responded to the fact that--for a variety of reasons unique to the DES litigation context--a DES complainant generally finds it impossible to identify the manufacturer of the drug that caused her injuries. The Court held that liability could be imposed upon DES manufacturers in accordance with their share of the national DES market, notwithstanding the complainant’s inability to identify the manufacturer particularly at fault for her birth injuries.

Accordingly, the order of the Appellate Division should be modified, with costs to the accused parties. The manufacturers’ motion for summary judgment to dismiss the third cause of action is granted. The certified question of whether the Supreme Court has erred should be answered in affirmative.

A complainant mother underwent an abortion in a hospital

Thu, 26 Apr 2012 16:47:34 -0500

A complainant mother underwent an abortion in a hospital. During the procedure, her uterus was punctured and she initiated an action for medical malpractice while her husband sued for loss of consortium.

After two years, the mother conceived a fetus and apparently completed a normal term pregnancy. Approximately three years after giving birth and seven years & six months after commission of her alleged tort, the medical malpractice suit was settled for $175,000. The settlement occurred during the course of the trial.

It is now contended that as a result of the perforation of the mother's uterus, a son was born with brain damage. Accordingly, the action was instituted almost seven years after the commission of the alleged act of medical malpractice and more than two years after the birth of her son.

The complaint claimed five reasons of action. The first two causes are on behalf of the son and the malpractice committed to the mother, the negligence of the hospital in treating her which brought an injury to the son. The third reason, also on behalf of the son, is bottomed upon the failure of the hospital to inform the mother of the risks and hazards of the treatment. The final two reasons are for loss of the child's services, society and companionship and for expenses acquired and to be acquired including medical attention. One reason is alleged on behalf of each parent.

The hospital however moved for decision without proceeding. A special term granted the motion, holding that no such action is cognizable under the law. Same in Long Island and Manhattan.

Based on the record, no such case decided in the State deals precisely with the same issue of the complainant. The court therefore, turns to cases which inform by laying down guidelines. At the beginning, the court note that if the complaint sets forth a viable reason of action then the court need not concern whether there was a timely filing of a notice of claim. Despite the explosive expansion of tort law in the recent past, the court thinks it is fair to say that none of the cases disinterest the law to act, therefore as recognized by law, the court created a new reason of action. The court states that even if no such claim has ever been before accepted, it does not make the claim an unscalable barrier. In the circumstances, the court is constrained to conclude, unless otherwise instructed by a superior judicial authority or by the government, that no reason of action lies on behalf of the son of the complainant.

As to the fourth and fifth reasons set forth on behalf of the parents, the complainants were necessarily a part of the malpractice action which was already settled. Although clothed in a new theory and seeking improved damages, all of the matters alleged in the two reasons of action flowed from the wrong actions committed against the mother. The complainant parent were included in the settlement reached and may not be the subject of a separate action.

For such reason, the order of the Supreme Court granting the request of decision without proceeding for the hospital as the opponent is affirmed without costs.

The court wanted to examine the question in view of the trend in the decisions and commentaries, as well as the injustice evident in the denial of the opportunity to such children to prove their cases.

The hospital’s arguments on the law of limitation do not exclude the infant as one of the complainant. The order granting for the decision without proceeding on the ground that the complaint fails to state a reason of action should be reversed.

The couple alleges that while the wife was a patient at the hospital

Tue, 24 Apr 2012 16:44:37 -0500

The couple alleges that while the wife was a patient at the hospital and under the care of various accused attending physicians during her pregnancy and delivery, the medical team was guilty of medical malpractice in failing to properly anticipate a footling breech delivery and provide competent physicians to deal with an emergency created at the time of birth. It is further alleged in the couple’s bill of particulars that the accused parties should have delivered the child by Caesarean section. Instead, it is contended that the accused parties chose a vaginal delivery which delayed the delivery and was extremely painful by reason of bilateral nuchal arms. As noted in the hospital records annexed to the motion papers, the delivery also involved the unsuccessful use of forceps, cervix stretching device and super pubic pressure.
Accordingly, the couple alleges carelessness, negligence and medical malpractice to each of the medical care team member as well as the hospital in the first cause of action. The complaint also claims that the mother and her infant were caused to suffer and sustain severe and serious physical, emotional and mental injuries. In the couple’s second cause of action, it is further alleged that the accused parties failed to obtain the informed consent of the mother regarding the consequences of the doctors’ actions during the delivery. The third cause of action by the complainant is for the alleged loss of services of his wife.

The accused parties submit that under the New York law, practiced in The Bronx as well as Brooklyn, there is no cause of action for emotional harm resulting indirectly through the reaction of a complainant to injury caused to another. Therefore, the complainant’s case, as stated on the woman’s emotional injuries resulting from the stillborn birth must be dismissed.

The accused parties contend that the complainant is in effect claiming only those indirect emotional injuries, as evidenced by her response in the bill of particulars to a demand for the delivery of stillborn child after enduring all the pains and discomforts of full term child bearing and delivery as well as severe emotional trauma including depressive reaction.

It is recognized by the accused parties that there are situations where a cause of action may be stated for emotional harm resulting directly to a complainant from the negligence of another. On the other hand, the accused parties argue that no cause of action is stated when emotional harm results indirectly through the reaction of the complainant to injury negligently caused to another person.

The couple alleges that due to the negligence of the accused parties or because of actions taken by them without the wife's informed consent, the wife was caused to deliver a stillborn infant. No physical injuries are claimed. Rather, the wife seeks to recover solely for mental or emotional injuries and her husband seeks to recover for the loss of his wife's services. The Special Term denied the accused parties’ motions for summary judgment. It is well established that even assuming the death of the fetus in the uterus was caused by the accused parties, the wife may not recover for emotional and psychic harm as a result of the stillborn birth because it is a wrongful act with the absence of independent physical injuries.

It is not claimed that the alleged medical malpractice which resulted in the physical injuries alleged in the amended bill of particulars in any way caused the stillbirth. With the absence of independent physical injuries, the wife may not recover for emotional and psychic harm as a result of the stillborn birth. In the instant case, the episiotomy was merely another aspect of the childbirth procedure itself, but was not a cause of the stillbirth so as to warrant recovery.
The accused parties argue that the complainant may not recover solely for emotional injuries caused by a stillbirth, and also may not recover for merely another aspect of the childbirth procedure itself when there is no real injury alleged. It is the position of the accused that every layman knows that the act of birth is routinely painful, and that the wife did not suffer any independent physical injuries. The complainants attempt to bolster the position by maintaining that a review of the hospital records will show that the wife was under general anesthesia for the delivery, and, therefore, cannot claim any independent physical injuries.

Under the circumstances of the case, when it is alleged that the wife independently suffered and endured excruciating pain and unnecessary injury, apart from the routine pains of childbirth, due to the negligence of the accused parties in failing to properly anticipate a footling breech delivery, in not performing a Caesarean section, and in failing to provide competent physicians to deal with the emergency at the time of birth, the wife was not merely a bystander but was as much a victim of the accused parties’ alleged medical malpractice as the stillborn fetus. It is alleged that the medical malpractice of the accused parties by delaying and prolonging delivery resulted in injuries to the wife as well as the stillbirth of her child.
For these reasons alone, the Court finds that there are issues capable of trial and cognizable under New York law which preclude summary disposition. If in fact the couple are able to prove that the wife suffered independent physical injuries as a result of the accused parties’ medical malpractice, then she would also be entitled to recover for any alleged mental injuries she sustained, including any emotional injuries attending the stillbirth, allegedly caused by the same medical malpractice, as a concomitant to the actual physical injuries she had suffered during the prolonged delivery.

The second cause of action is for the alleged lack of informed consent of the stillborn's mother, and should not be summarily dismissed. Of course, it is well settled that an injured child has a right to an independent cause of action against a physician for in utero injuries stemming from the physician's failure to obtain an informed consent, only upon birth. Since we are dealing with a stillbirth, the second cause of action relates only to the stillbirth's mother. The third cause of action by the husband for the alleged loss of services of his wife also should not be dismissed.

The Court found that the mother contemporaneously perceived the tragic birth. In the modern view, actual observance of the accident is not required if there is otherwise an experiential perception of it, as distinguished from a learning of it from others after its occurrence. The Court applied the temporal proximity rule to the facts in a way which is especially appropriate to the facts.

Indeed, the Court can imagine no more integral an experience than that of a mother giving birth to a child through a protracted and difficult labor and delivery. She perceived that something was wrong, wrong enough to cause her to fear for her child's life. In short, the complainant had an experiential perception of the accident.

For all the above reasons, the Court find that the mother, even with the absence independent physical injuries, has satisfied the criteria and her claims are cognizable under the New York zone of danger rule. Accordingly, if the claims are substantiated by the evidence upon trial, the mother would be entitled to recover for her asserted emotional distress and mental injuries.
The issues capable of trial of fact that have been raised should not be summarily dismissed. The motion by the accused for summary judgment is denied.

On June 4, 1953, the accused, a fraternal benefit association issued a certificate

Sun, 22 Apr 2012 16:43:37 -0500

On June 4, 1953, the accused, a fraternal benefit association issued a certificate of membership in the amount of $4,000 to a postal clerk member of the New York Branch of the Association. While alive, he is entitled to participate in the benefits of the Benefit Fund in case he sustained various bodily injuries through external violent and accidental means. The injuries should not be the result of his own vicious or intemperate conduct because it would wholly and continuously disable him from performing the duties of a Postal Transportation Clerk. If death shall result from such injuries alone within one year from the date of the injury, the Association will pay $4,000 to his step-daughter.

On March 31, 1962, while the contract was in force and effect, the postal clerk died. He was then 80 years of age and a patient at the Veterans Administration Hospital in New York. He had been confined for approximately 22 months prior to his death. Following notification of death and submission of proof by his stepdaughter and a refusal by the association to pay the benefit, the instant action was commenced. The association at trial conceded the existence of the contract and the status of postal clerk as its beneficiary. It denied and contested however the accidental death as defined in the policy.

Thus, the sole issue tried was whether or not the postal clerk’s death was caused by an accident within the meaning of the policy. The stepdaughter’s proof consisted of a death certificate and the testimony of a medical doctor. The death certificate issued by the Office of Vital Records of the Department of Health revealed that after an autopsy was performed, it was found out that the cause of death was Cerebral Arteriosclerosis caused by accidentally swallowing of sock. It was offered in evidence by the complainant to establish the cause of death of the postal clerk. In view of the association’s objection to accept the death certificate in evidence for such purpose, it was accepted by the Court only to establish the fact of death. A decision was reserved on its admissibility to show the cause of death. The medical doctor who testified had 36 years of practice and estimated treating about a thousand cases of cerebral arteriosclerosis during his career. He did not testify to treating the postal clerk during his lifetime or attending him at the time of his death or thereafter. However, the doctor stated that the death caused by suffocation due to the presence of a sock in a man’s pharynx is considered death by external and violent means.

Following this the stepdaughter rested her case. The association rested without offering any proof. It thereafter moved to dismiss on the ground that the stepdaughter failed to prove a case. The decision was reversed to await the submission of a memoranda which the court acknowledges and thanked the counsel for the scholarly excellence of their labors.

A threshold and crucial issue which the court must decide is whether or not a properly certified copy of a death certificate is admissible to establish the cause of death. If it is not admissible, the stepdaughter may not recover because of the failure of proof. If it is admissible, the stepdaughter has overcome the first and most formidable obstacle to obtain judgment.
Summarizing therefore, we see that if the death certificate is inadmissible in a given case to establish the cause of death, it is because of the rule of privileged communication which prevents disclosure of facts learned by a physician from a patient for the purpose of treatment or because of the hearsay rule. The former rule, however, may be waived in an appropriate case and the latter rule is profoundly affected by various statutes. In addition, it has been held that the facts disclosed on an autopsy are not subject to the privilege rule, since there is no confidential relationship between the autopsy surgeon and a deceased.

The association contends, however, that if the certificate is admissible to show the cause of death, it is equally admissible to establish other facts contained therein. While the Court do not quarrel with the proposition, it is subject to the limitation stated that such facts must be ones directly ascertained by the maker and of such a nature that a court is justified in accepting them. The association in Manhattan and Long Island claims that such facts appear in the certificate where it is indicated that cerebral arteriosclerosis was a contributing cause of death and such facts defeat the stepdaughter’s claim since an accident was not the sole cause. The finding of cerebral arteriosclerosis, which undoubtedly was ascertained as a result of autopsy which the certificate indicates was performed, appears on a part of the certificate not concerned with the immediate cause of death, but the secondary finding, which is held equally admissible, does not, however, militate against a conclusion that the sole cause of death was suffocation from a foreign body in the pharynx. It frequently happens that accident and disease are both present in cases arising under accident insurance policies, and the question arises as to whether death in such cases is caused by the accident or disease. The courts are agreed that, in the absence of any provision in the policy specifically controlling the matter, whether death is deemed caused by accident alone depends upon the factor of proximate cause. It follows from the general principle that if the insured is suffering from a pre-existing disease or infirmity at the time of an accident does not preclude recovery under the policy, and if the pre-existing disease has no causal connection with the harm suffered as a result of the accident and in no way produces the death or disability, or if the accidental injury has caused death or disability only and independently of the disease, then liability exists.

The stepdaughter was required to prove that since her status as beneficiary and the existence of the contract were conceded and the death certificate was admissible to prove the fact of death, she had to establish that her stepfather’s death by accident occurred within one year of the accident and not due to accidentally administered poison or any injury causing matter, that there are no visible external marks of injury and that death is not voluntary inflicted or a result of a surgical operation.

When death is shown to result from external violence, there is a presumption that it was due to accidental means, so as to support a recovery in the absence of affirmative proof to the contrary by the insurer since there is a presumption in the law against suicide. The policy denies coverage where death results from poison or other injurious matter taken or administered accidentally or otherwise. The clause like other exclusionary provisions is to be strictly construed, and in so doing there is no basis to deny recovery. A sock quite obviously does not come within the definition of injurious matter. Furthermore, the balance of the language used in this clause makes it clear that a sock was not intended to come within the definition of poison or other injurious matter since it could not be taken or administered.
In conclusion, the stepdaughter has met her burden of proof not contradicted by any evidence of the association. Judgment is in favor of the stepdaughter.

The complainants seek damages for the infant’s right arm paralysis injury

Thu, 19 Apr 2012 16:40:23 -0500

The complainants seek damages for the infant’s right arm paralysis injury (Erbs palsy brachial plexus). The accused parties are the hospital, the obstetrical resident who delivered the infant and the attending physician who was present at the delivery.

The complainants allege that the doctors failed to properly manage and perform the delivery of the infant, failed to properly detect and manage shoulder dystocia, failed to perform rotational maneuvers to deliver the infant, failed to properly position the mother for delivery, improperly performed delivery by applying excessive traction to the infant's head, failed to perform an episiotomy in the presence of a shoulder dystocia, failed to place the mother in the necessary birth position and failed to perform the necessary birth maneuver, and improperly performed maneuvers at delivery which resulted in injury to the brachial plexus nerve. The doctors on the other hand, claim that the birth injury sustained by the infant is inconsistent with the records of the labor and delivery. It was not caused by a medical malpractice and instead, was the result of maternal fetal forces.

In support of their motion for summary judgment, the doctors submit the affirmation of obstetrics and gynecology physician board certified who reviewed the pertinent medical records, pleadings and deposition transcripts. The board certified physician observes that the mother's pre-natal history was benign and she had no maternal risk factors for shoulder dystocia. She also observes that the mother did not have an abnormal pelvic anatomy, gestational diabetes, was not post-date. The records revealed that the mother had no previous shoulder dystocia delivery and was not extremely short of stature. The board certified physician also pronounces that there was no assisted vaginal delivery or protracted active phase of first stage labor or second stage labor. The delivery note also indicated that the child was delivered with a non-reducible nuchal cord wrapped once around the neck and was clamped and cut upon the head's delivery. The nuchal cord is significant because in its presence, the mother was directed to stop pushing after delivery of the head in order to have the cord cut prior to the delivery of the child's body. Based upon the charting, a shoulder dystocia was not encountered. Had there been any complications or the need for maneuvers to be undertaken because shoulder dystocia was encountered, or for any other reason, it would have been documented in the physician's notes, nursing notes, or pediatric notes. The board certified physician strongly claims that absence of any of such documentation is clear and convincing evidence that maneuvers and/or excessive traction were not used and shoulder dystocia not encountered. The work-up from admission to delivery was well within the standards of care, and there were no departures from the standard of care from the time of delivery through the delivery itself, based upon the records. Following the delivery, the mother had a first-degree vaginal laceration and was repaired with 3.0 chromic sutures, which indicates that it was a superficial laceration without muscle involvement and it was not, as indicated in the complaint that a trapped shoulder had to be delivered.

The board certified physician cites medical literature that makes it quite clear that there can be an intrauterine origin of obstetrical brachial plexus, unrelated to lateral traction during delivery. The literature states that the right arm paralysis injury can occur without associated shoulder dystocia and maternal forces are the most likely cause of both situations with and without dystocia. Some articles indicate that shoulder dystocia can occur from driving force rather than traction forces. Other studies conclude that intrauterine maladaptation may play a role in brachial plexus impairment and brachial plexus impairment should not be taken as legitimate evidence of birth injury.

The board certified physician in Manhattan and Long Island concludes that whatever injuries allegedly occurred in the complaint have occurred in the absence of any deviation or departure from the standard of medical care and in the absence of shoulder dystocia. The only explanation that could support the alleged Erb's palsy, as the literature indicates are maternal fetal forces and not shoulder dystocia and/or the intervention by any physicians.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of injury or damage. Accordingly, the accused parties in a medical malpractice action are able to fulfill their legitimate burden of establishing their entitlement to judgment without trial by bringing forward expert opinion evidence that they did not deviate from good and accepted medical practice in their treatment of the complainant. In opposition, the complainant must submit a physician's affidavit attesting of the doctor’s departure from accepted practice, which departure was a competent producing cause of the injury in order to defeat the doctors’ motion.

It is well settled that judgment without trial is not appropriate in a medical malpractice action when the parties bring forward conflicting medical expert opinions as such credibility issues can only be resolved by a jury.

The conflicting medical expert opinions submitted by the parties preclude the grant of summary judgment to the doctors. The doctors rely primarily upon the expert affirmation of the board certified physician to establish legitimate proof that they did not deviate from good an accepted medical practice in their care and treatment of the complainant during labor and delivery. The board certified physician’s affirmation focuses on the lack of evidence that a shoulder dystocia occurred in the labor and delivery, and on medical literature which supports the proposition that the Erb's palsy that allegedly occurred was the result of maternal fetal forces rather than improper excessive traction on the infant. Although the court finds that such affirmation is sufficient to establish the doctors’ legitimate proof case, it also determines that the expert affirmation proffered by the complainant raise issues of fact sufficient to support denial of the instant motion for summary judgment.

The complainant’s expert pronounces in his affirmation that Erb's palsy in the absence of shoulder dystocia is an extremely rare event, and that the medical literature which he has reviewed indicate that the chances that an Erb's palsy was caused by intrauterine events approaches zero. He opines that when such rarest of events is documented, there is the presence of macrosomia and a prolonged second stage of labor, neither of which was present in the case. He also opines that he has a doubt as to the validity of the charting, pointing to the discrepancy as to whether the vaginal laceration was first or second degree, and that he believes that the charting does not equate with the condition of the baby at birth. Contrary to the assertion of the doctors’ counsel, it is not a speculative opinion, since the complainant’s expert opines that the obstetrical resident failed to recognize that the shoulder became impacted and applied excessive traction. Further, the complainant’s expert offers a cogent opinion why the Erb's palsy manifested on the right shoulder, rather than the left.
Such conflicting expert affirmations necessitate resolution by the finder of fact. Accordingly, the motion for summary judgment by the obstetrical resident, the attending physician and the hospital is denied. The foregoing constitutes the decision and order of the court.

A woman had been having premature contractions so she was given pitocin

Tue, 17 Apr 2012 16:38:19 -0500

A woman had been having premature contractions so she was given pitocin, a hormone that would stop the contractions. She nevertheless still gave birth prematurely on April 4, 2008, on the thirtieth week of her pregnancy. The child developed bleeding and inflammation in the brain as soon as it was born. The bleeding and inflammation in the infant’s brain caused him to develop cerebral palsy.

The mother then filed a suit in damages in behalf of her infant son, claiming that the child suffered brain injury due to the of the obstetrician-gynecologist who assisted at his birth. She claims that the obstetrician gave her too much pitocin which made her placenta break. This break in the placenta caused air to leak into the child’s lungs while it was still inside her uterus and caused the bleeding in the infant’s brain. The mother stressed that instead of giving her pitocin to stop her contractions the obstetrician should have just gone ahead and delivered her baby through cesarean section. The mother claimed that because the obstetrician did not timely remove her child from her womb, the rupture of the placenta caused air to leak into the child’s lungs which caused his bleeding in the brain and which caused him to develop cerebral palsy.

The doctor presented her own testimony that there were no indications that the mother’s placenta was already ruptured or was about to rupture at the time that she was admitted. She claimed, as did the experts she presented that the cesarean section performed was performed at just the right time. And she further testified that there is no medical evidence that the bleeding in the child’s brain was caused by anything other than its prematurity. There is also no evidence that an earlier delivery by cesarean section could have prevented the bleeding in the brain. The bleeding in the brain of the child are expected complications of premature birth and are not due to the mismanagement of the mother’s labor and delivery.

The plaintiff then presented her own expert witness who testified that the failure to timely perform a cesarean section is a deviation from common medical practice. The obstetrician practicing in the Bronx and Brooklyn should have seen from the fetal tracings that there was already a threatened placental rupture. The administration of pitocin to stop the contractions is also a deviation from accepted practice as it further increased the risk of rupture of the placenta. These two deviations from commonly accepted medical practice increased the risk of the child developing bleeding in the brain which was the immediate and proximate cause of the child’s cerebral palsy. The expert further opined that had the obstetrician immediately delivered the child by cesarean section, there would have been a significant decrease in the chance of the child developing neurological disabilities.

The Court then ruled that with the presentation of preliminary evidence by both parties and the expert testimony procured by them, there are material issues of fact that have to be determined in this case.

Here, the experts agreed that the infant’s cerebral palsy was caused by the bleeding in his brain. The experts also agree that the infant would not have cerebral palsy had not the bleeding in his brain deprived him of oxygen. In this case, the plaintiff’s evidence may not have proven how the obstetricians acts or omissions decreased or increased the infant’s chances of developing cerebral palsy but the plaintiff’s evidence presented so far is sufficient to prove that material issues of fact have yet to be established at trial and this consideration alone precludes any summary dismissal of the complaint. The fact that so many conflicting factual allegations remain makes it clear that a summary judgment of dismissal of the complaint is not proper at this time.

A couple of Jewish and Eastern European descent sued an obstetrician-gynecologist

Sun, 15 Apr 2012 16:50:25 -0500

A couple of Jewish and Eastern European descent sued an obstetrician-gynecologist for medical malpractice because their child was born with Tay-Sachs. Tay-Sachs is a hereditary disorder of the nervous system that is carried by those of Jewish Eastern European descent. It is the couple’s contention that the obstetrician-gynecologist while looking after and examining the wife during her pregnancy should have known that they were prime candidates to be carriers of the dread genetic disease. They insist that the obstetrician-gynecologist should have ordered them tested and their fetus screened for it. For had the couple known that they were carriers and that their baby had the gene responsible for the Tay-Sachs disease, they would have aborted the baby to prevent the extreme pain and suffering the child underwent. Their child was born on August 21, 1972 and died even before reaching age 2 on June 26, 1974.

The parents sued the obstetrician-gynecologist for damages for the personal injury consisting of emotional distress at their child’s suffering and her death; they also sued for the pain and anguish they felt at her untimely death. They also ask for compensation for their baby’s medical, hospital, nursing and funeral expenses.

The obstetrician-gynecologist moved for the dismissal of the case stating that the parents do not have any right to be compensated for the pain and suffering of their child.

The trial court denied the motion to dismiss filed by the obstetrician-gynecologist and ordered the payment of damages to the parents.

The only questions in this appeal are: whether or not the trial court erred when it denied the obstetrician-gynecologist’s motion to dismiss; and whether or not the couple is entitled to compensatory damages for the pain and suffering of their child.

The Court held that under the law, in order for the parents to recover damages for their own personal emotional harm, there must be a showing that the doctor had a duty to them that he failed or refused to do and that as a direct result of the doctor’s failure or refusal to fulfill that statutory duty, the parents themselves were directly injured.

In this personal injury suit, the doctor may or may not have treated the wife or advised her according to the standards of his profession. The couple may have sustained injury but the personal injury they are claiming damages for is for the suffering of their child. This is at best indirect harm. Only a very small part of the indirect personal harm they may have suffered can be attributed to the alleged negligence of the doctor here.

The Court noted that every mother who bears a child stands to be hurt if their child died but this is a natural risk of life and child bearing. The law establishes liability only when a person is directly or intentionally harmed by the acts of others. Here, the child’s suffering may be compensable but the indirect suffering of the parents stemming from the suffering and death of the child cannot be compensable.

The Court also observed that while the parents do have a statutory right to abort their fetus had they known that their child would inevitably suffer and die due to Tay-Sachs, the compensatory damages they are asking for cannot be determined by the court. They are, in effect, asking the court to put a price on the immeasurable and intangible benefits of parenthood that were deprived them because of the death of their child. The parents here contend that their child should not have been born had the doctor done his job. The Court is at a loss to measure the grief of parents who give birth to a defective child. It is impossible for the court to assign a pecuniary value in damages for the anguish to the parents of a child who was born with a fatal disease. Damages which are uncertain and speculative cannot be a basis for recovery.

The Court saw a case from New York City and Westchester resolved to dismiss that part of the complaint of the parents for their own emotional injury but sustained that part of the complaint for the child’s own suffering.

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

Thu, 12 Apr 2012 16:35:48 -0500

Plaintiff had made appointments to an abortion clinic 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.

A single mother gave birth prematurely to her baby girl

Tue, 10 Apr 2012 16:39:32 -0500

A single mother gave birth prematurely to her baby girl on her 25th week of pregnancy. The child stayed at the neonatal intensive care unit of a university hospital where she was taken care of by the staff from the date of her birth on June 25, 2003 until she was released on August 3, 2003.

The child suffered from hydrocephalus; she had breathing disorders; she had seizure disorders and blindness. The mother brought a suit for medical malpractice against the attending neonatologists, the nursing staff and the university hospital itself. The mother filed the suit in damages for and in behalf of her prematurely-born baby daughter, alleging that the attending neonatologist’s medical malpractice caused her child personal injury. The mother also brought a suit in damages alleging that the neonatologist’s medical malpractice and negligence that caused her daughter’s suffering also caused her personal anguish and distress. She claims the payment of her medical bills and for the maintenance and upkeep of her child who suffers irreversible and permanent brain damage which requires round-the-clock nursing care for the rest of her life.

The chief of the neonatal intensive care unit filed a motion to dismiss the cause of action against him for negligence and medical malpractice. The question of whether or not the complaint against the chief neonatologist should be dismissed is the only question before the Supreme Court.

The Supreme Court held that in medical malpractice cases, the person claiming damages from the medical malpractice has the duty to allege and give preliminary proof that the doctor being sued deviated or departed from accepted medical practices and that the deviation or departure is the proximate cause of the injury or damage.

The neonatologist who filed the motion for summary judgment must make a preliminary showing that he is entitled to a judgment, tendering sufficient evidence to eliminate any material issues of fact.

The neonatologist’s own testimony on his deposition is the only admissible evidence he proffered in support of his motion for summary judgment. In this testimony, he claims that he only saw and attended the child on the day it was born as he was scheduled as daytime attending neonatologist then but was not the scheduled attending neonatologist at the neonatal intensive care unit from July 7, 2003 until August 3, 2003. He claims to have seen the child next only on August 17, 2003.

He denied that he deviated from any accepted and regular medical procedure during those few days when he attended and cared for the child. He also denied that the residents, fellows and other medical personnel of the neonatal intensive care unit who were under his supervision deviated from normal procedure.

He claimed that the blindness of the child is a usual complication of premature birth. He claimed that there were no signs of brain bleeding noted. There were no indications that the intravenous line which was directly inserted into the child’s heart was ever wrongly placed.
To rebut this preliminary evidence, the single mother presented medical experts who asserted that the neonatologist departed from accepted medical practice by allowing the premature child to receive too high concentrations of oxygen and this was what destroyed the child’s retina and caused her blindness.

The expert witness also noted that prior to the increase of the blood oxygen levels of the child, the child showed no signs of brain injury. It was the repeated exposure to high level of oxygen concentration that caused her lung infection, her brain injury and her blindness.

The experts in Nassau and Suffolk also testified that the doctor should have seen from the x-rays taken of the child that the intravenous tube through which food and medicine was being directly administered to the child had been removed from the proper place (near the biggest blood vessel in the heart where sufficient blood flow will allow rapid dispersal of the medicine and nourishment. The expert testified that because the neonatologist did not see that the intravenous line was not in the right place, the fluids collected in too high concentrations near the heart further making it difficult for the child to breathe and this caused the child’s brain to be deprived of too much oxygen for long periods of time and caused her brain injuries.

The Court then decided that the trial court did not err in denying the motion for summary judgment as the experts presented by the plaintiff have raised material issues of fact that require a trial. What caused the child’s blindness and brain injury are material issues of fact that renders a motion for summary judgment untenable.

A woman engaged the professional services of an obstetrician

Sat, 07 Apr 2012 16:36:44 -0500

A woman engaged the professional services of an obstetrician to give her prenatal care and to deliver her baby. On October 24, 2002, the woman was admitted to the emergency room because she was already in labor. The labor proceeded normally until the second stage of labor when the woman was instructed by her doctor to push the baby out and the mother had difficulty bearing down. The mother was not pushing hard enough so the doctor tried to suction the baby out. When this also failed, the doctor told the woman that her baby will have to be delivered via cesarean section but the woman refused.

The doctor then obtained the woman’s consent to deliver her baby using forceps. But before the forceps could be locked, the baby popped out. It had a faint heartbeat but it was eventually declared dead after 45 minutes of trying to revive the baby.

The woman then sued the obstetrician and the hospital in behalf of her infant. She filed a suit in damages for medical malpractice for the personal injury sustained by her infant that died as a result of the negligence and fault of the obstetrician. She also sued for the wrongful death of the child. She also sued for her own personal injury and she sued for her own emotional distress.

The obstetrician and the hospital both filed motions for summary judgment asking for the dismissal of the case. Even before any ruling can be made on this motion for summary judgment, the woman withdrew the complaint she filed in behalf of her child for wrongful death and also for her personal injury. The only remaining causes of action in her complaint are the personal injury sustained by the mother and the emotional distress to her.
The only issue in this case is whether or not the remaining causes of action must also be dismissed.

First, the Court resolved to grant the motion for summary judgment filed by hospital since it appears from the preliminary proof presented by both the mother and the obstetrician that the hospital employees were only following the orders of the obstetrician who was not an employee of the hospital but was an independent contractor,

Second, the Court held that the issue of the existence of medical malpractice by the obstetrician was met by the doctor when he submitted his own affidavit attesting to the fact that the child’s death was due to the mother’s refusal to deliver her baby by cesarean section. The Court then held that this proof presented by the obstetrician served to shift the burden to the mother to show that material issues of fact remain that have to be resolved by trial.
Third, the woman adduced expert testimony and testimony from a fellow doctor from the hospital who was working in the emergency room when the mother was admitted stating that as early as two hours before the child was finally delivered, the child had show signs of fetal distress. The readings on the baby monitor show that the baby’s heartbeat was slowing down and the doctor should have seen those printouts and should have performed the cesarean section two hours before he asked for the mother’s consent to have the cesarean section. Also the woman denied that the obstetrician ever asked her to have the baby delivered via cesarean section. The mother also adduced testimony from the nurses on duty with the obstetrician at the time of the delivery that the doctor put the forceps on the front and back of the baby’s head instead of on the sides which may have caused a fatal skull fracture.

Fourth, the Courts in Manhattan and Staten Island then held that the mother has successfully raised material issues of fact that have to be resolved in a trial. The issue of whether or not the doctor informed the woman of the necessity of delivering by cesarean section is a material issue of fact. Also, the issue of whether or not the doctor timely informed the mother of the necessity of a cesarean section is a material issue of fact. Lastly, the issue of whether or not the doctor misused the forceps in delivering the baby is also an issue of fact.

These material issues of fact have to be determined during a trial and so the obstetrician’s motion for summary judgment is denied.