The infant plaintiff (plaintiff) has a history of head trauma...cont

May 19, 2015,

A Bronx County Brain Injury Lawyer argued that while Dr. EG is not a medical doctor, there is no magic to the MD degree aside from automatically qualifying by study alone. They noted that a psychologist has been found qualified to testify concerning the limitations resulting from TBI and that the diagnosis of mental disorders and the treatment of associated mental, emotional and behavioral symptoms have been held to be within the scope of practice of the professions of psychology.

Following oral argument, the hearing court granted defendant's motion, ruling that while a neuropsychologist is permitted to give testimony concerning a TBI, the absence of evidence by the qualified expert to make the critical connection between the psychologist's testimony and the TBI renders the testimony useless.

A Bronx County Brain Injury Attorney said that, before accepting expert testimony, a trial court is required to conduct a two-step analysis. First, it must confirm that the methodology used by the expert to arrive at a conclusion is generally regarded as reliable by the scientific community. Second, the court must establish the admissibility of the specific evidence. The latter inquiry is made at the trial and is the same as that applied to all evidence, not just to scientific evidence. Thus, admissibility is a distinct evaluation, involving matters going to trial foundation or the weight of the evidence, both matters not properly addressed in the pretrial Frye proceeding.

This Court assumes, without deciding, that based on tests administered to the infant plaintiff, Dr. EG is qualified to render an opinion that the type and extent of cognitive impairment indicated by his interpretation of the test results are consistent with cognitive impairment associated with injury normally resulting in TBI. The issue to be resolved is whether the evidence relied upon by the expert is sufficient to provide a foundation for his opinion that plaintiff's neurological impairments were proximately caused by the injuries sustained as a result of the particular negligence attributed to defendant, rather than by another incident in which plaintiff experienced head trauma or even by psychosocial and other factors entirely unrelated to injury.

Here, Dr. EG failed to offer or identify any objective medical evidence to support his conclusion that plaintiff's alleged brain injury and resulting cognitive problems were caused by the incident in question. The expert witness first examined plaintiff and administered neuropsychological tests on June 17, 2004, three years after the injury alleged to have been sustained as a result of the collapse of the bathroom ceiling. The report dated June 21, 2004 does not identify any earlier testing used as a basis for the expert's conclusion that the accident suffered in 2001 is the direct and proximal cause of the cognitive deficit documented in this evaluation. Particularly, the report does not refer to any assessment of plaintiff's cognitive function made before the June 2001 incident that might serve as a basis for comparison so as to support the attribution of the noted deficits to events subsequent to the assessment, even if not to the June 2001 incident itself.

A later evaluation made by plaintiffs' expert in October 2006 merely notes, a clinically significant cognitive deficit is still present. It does not even mention the September 2004 car accident, let alone attempt to assess its effect on plaintiff's cognitive function. Moreover, when faced with objective medical evidence indicating the absence of brain injury, such as negative CT scans, plaintiffs' expert dismissed it without sufficient explanation. In fact, all CT scans taken in connection with injuries sustained by plaintiff resulted in negative findings. Nor did Dr. EG adequately address evidence showing that plaintiff's cognitive difficulties predated the subject accident.

Here, plaintiffs' expert is qualified to render an opinion on the extent of plaintiff’s neurological deficits and may testify that those deficits are consistent with a history of head trauma, however, plaintiffs have failed to identify any evidentiary basis for the opinion sought to be elicited from the expert as to which of several accidents is the proximate cause of such deficits. Thus, his testimony as to this isolated point was properly precluded.

The infant plaintiff (plaintiff) has a history of head trauma

May 17, 2015,

The infant plaintiff (plaintiff) has a history of head trauma. In the year 2000, he was struck in and above the left eye by a baseball when he was tagged while sliding headlong into first base. He apparently was not treated for this personal injury. On June 16, 2001, a portion of a bathroom ceiling fell, striking plaintiff in the head and neck. An ambulance report states that he was found, semiconscious, on the floor by his mother and complained that his neck & back hurt. He was taken to LM Medical Center's emergency room, where bruising was noted around the neck and back. A head CT scan was negative. On May 15, 2002, plaintiff was struck in the head by a basketball. He was seen at the emergency room of G Hospital, where he was diagnosed with contusions of the face, scalp and neck. On September 8, 2004, plaintiff was a back-seat passenger, secured by a lap belt, in an automobile that rolled over at least three times, according to witnesses. He was transported by ambulance to L Hospital, where a CT scan of the head and X rays of the chest, lumbar spine and left knee were negative. The ambulance report and hospital record differ on whether plaintiff experienced a brief period of unresponsiveness. On October 13, 2004, plaintiff was again seen at L Hospital in connection with an unspecified motor vehicle accident. He complained of headache and dizziness over the preceding three days, shaking of the legs upon awakening that morning and decreased appetite. His condition was diagnosed as acute viral illness and post-concussion syndrome.

This action seeks damages arising out of injuries allegedly sustained by plaintiff in the apartment owned and maintained by defendant when the bathroom ceiling partially collapsed. The complaint, as supplemented by plaintiffs' verified bill of particulars, claims that plaintiff experiences post-traumatic headaches as a result of a head injury with loss of consciousness. Plaintiffs' supplemental verified bill of particulars additionally claims that he suffers from various impairments consistent with a history of head trauma.

Following the exchange of expert witness information, defendant was informed that plaintiffs would offer testimony from EG, Ph.D., an expert in neuropsychology, as to the effects of the accident of June 16, 2001 upon plaintiff’s intellectual and cognitive ability, particularly as to the diminution of plaintiff's cognitive and intellectual abilities. The notice indicates that the witness will compare pre-accident and post-accident abilities and educational achievement and will testify that plaintiff's post-accident cognitive functioning is significantly diminished from its pre-accident state. The notice does not identify the basis for comparison of pre-accident and post-accident abilities. Plaintiffs did not identify any other expert witness who would be produced.

Following jury selection, defendant interposed the instant motion to preclude the proposed testimony of plaintiffs' neuropsychologist. Defendant argued that the witness should be precluded from giving testimony relating his psychological test findings to a medical diagnosis of brain injury. Dr. EG concluded, in two reports he submitted, that plaintiff sustained a traumatic brain injury (TBI) as a result of the ceiling collapse.

To Be Cont...

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Administration for Children's Services (ACS)

May 15, 2015,

On June 8, 2009, a physician at XXX Medical Center reported that Respondent-mother’s (hereafter RM) seven month old child was brought to the hospital after her boy friend (hereafter BF) found the child in an abnormal sleeping position and when he repositioned the child he had an abnormal pulse. The child was brought to the hospital at 4:53 p.m. at which time he was pulse-less and all attempts to revive the child were unsuccessful; the child was pronounced dead at 6:30 p.m.

On June 9, 2009, Medical Examiner KN reported that the official cause of death for the child is whiplash, shaking and blunt impacts of the head with subarachnoid and subdural hemorrhages. The child's death has been ruled a homicide.

On June 9, 2009, a physician from XXX Medical Center told the Administration for Children's Services (ACS) that a CAT scan and retina exam indicated a bilateral hemorrhage and the CAT scan indicated hemorrhaging and a subdural hematoma which could be related to shaken baby. On June 8, 2009, RM admitted to ACS and Police that on June 8, 2009, the child woke up around 1:00 p.m. and was fussing and crying and didn't want to sleep. The RM admitted that she was stressed out and tired and that the she shook her baby forcefully, several times at which point the baby stopped crying and she put him back in bed to sleep.

On June 9, 2009, the BF told ACS and Police that on June 8, 2009, RM went to work and left the child in his care at which time he left the child in the apartment to go outside and play basketball around 4:30 pm. BF admitted it was not until approximately 5:00 pm. when he went back in to the apartment that he found the child to be unresponsive.

On June 9, 2009, ACS observed the subject child to be disheveled and dirty. ACS observed the subject child to have dirt under her finger nails and toe nails. ACS also observed the subject child to have a large bald spot on the left side of the back of her head and her hair appeared dirty and unkempt. On June 9, 2009, ACS filed a petition against RM alleging she had abused and neglected her daughter.

In its Summation, ACS stated that it has presented clear and convincing evidence that RM acted with a depraved indifference to human life in causing serious physical injuries to the seven-month-old infant that resulted in his death. ACS stated that it had proven aggravated circumstances and that the infant was a severely abused child and that RM failed to rebut any of the evidence presented by ACS. ACS urged the court to make a derivative finding of severe abuse as to the subject child (RM’s two year old daughter). Further, based on the clear and convincing evidence of the heinous nature of RM's abuse of the infant, ACS stated that the court should terminate its duty to provide reasonable efforts to assist RM in reunification with the surviving child.

The issues to be determined in this matter are whether the subject child is a derivatively severely abused child based on the aggravated circumstances of the events that led to the death of her sibling and whether reasonable efforts to reunite the subject surviving child with RM are required or can be terminated in accordance with Family Court Act.

According to a Bronx County Brain Injury Lawyer, under Social Service Law the term “severely abused” can be used as a ground for the termination of parental rights. The legislature expressly incorporated this term in the definition of “aggravated circumstances” and made it applicable to child protective proceedings. The legislature acted to create a child-protective system wherein the adjudication of a deceased child as abused or severely abused becomes paramount in termination of parental rights proceedings as to surviving children. The legislature amended Article 10 of the Family Court Act to permit the court to make a finding of severe abuse in a child abuse proceeding, based on the standard of clear and convincing evidence, and made such a finding admissible in a proceeding to terminate parental rights. The legislature also authorized the court to determine whether reasonable efforts to reunite the child and parent should continue to be required. If the court determines that such efforts are no longer required, ACS or the foster care agency may immediately file a petition to terminate parental rights.

A Bronx County Brain Injury Attorney said that, it was clear that the allegations of derivative abuse and severe abuse applied to the subject child. Petitioner ACS has established through documentary evidence (Medical Examiner's Autopsy Report), that the infant suffered pervasive, inflicted injuries that created a substantial risk of death and which ultimately caused his death. The infant's internal injuries included: a subarachnoid hemorrhage, bleeding in the area between the brain and the thin tissues that cover the brain, and etc… which resulted in traumatic brain injury. The Medical Examiner found that the infant sustained extensive abrasions and contusions over his entire body. The XXX Medical Center Emergency Room's report of a CAT scan and retina exam of the deceased infant was included in the autopsy report. It found bleeding in the infant's brain indicative of the shaken baby syndrome. These medical findings and determinations were entered into evidence and the court finds that the medical evidence in this matter created a prima facie case of child abuse against RM.

The uncontroverted findings of Medical Examiner KN, M.D., provide clear and convincing evidence that the infant suffered a serious physical injury as defined in Penal Law. Medical Examiner determined that the infant's head injuries was the proximate cause of the death (resulted from whiplash, shaking, and blunt-trauma force to the head). RM admitted to violently beating and shaking the seven-month-old infant. Further, she acted in a manner that was indifferent to the plight of the infant when she failed to seek medical care for him and left him on the bed to die from his injuries. Respondent Mother's conduct was reckless and evinced a depraved indifference to human life.

Also, in the instant case, the court finds that the parental defects that led to RM's heinous acts against her deceased infant continue to exist and her impaired parental judgment create a substantial risk of harm for the surviving sibling (subject child) in the foreseeable future, warranting derivative findings of abuse and severe abuse as to the subject child.

The final element of the charge of severe abuse requires Petitioner ACS to submit proof that the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child.

The court finds that continued reunification efforts are unlikely to be successful in the foreseeable future and that such efforts will be detrimental to the best interests of the child. The court grants Petitioner ACS's motion and orders that reasonable efforts to reunify the subject child with RM are no longer required.

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Defendants move for summary judgment...cont

May 9, 2015,

The doctor noted that in 2004 the plaintiff underwent a left femoro-popliteal by-pass for severe peripheral arterial disease in his lower left extremity. The surgeon explained that the majority of these grafts fail within three to five years.

After the graft by-pass, the plaintiff went to the hospital complaining of left leg pain and swelling on August 23, 2004; September 10 and 15, 2004; April 17, 2005; May 2, 2005; November 14, 2005; January 22, 2007 and May 4, 2007. The Court notes that in medical records for May 4, 2007, approximately one month before the alleged fall, the plaintiff complained of pain and discoloration of both lower extremities.

The surgeon further noted that the Jacobi Medical Center records for the plaintiff's June 17, 2007 admission, which is three days after the alleged fall, reflects that the plaintiff had not taken his Coumadin medication for two weeks. According to the defendant's expert, Coumadin is an anticoagulant prescribed to help prevent graft thrombosis. The beneficial effects of Coumadin are lost three to five days after discontinuation of the medication.

In addition, the June 17, 2007 admission records documented that both plaintiff's lower extremities were swollen and discolored. Moreover, there was no indication in the records evidencing recent trauma or lacerations. An ultrasound indicated by-pass graft was occluded and an angiogram confirmed a clotted left lower extremity by-pass graft.

On August 27, 2007 the plaintiff presented to the hospital with multiple ulcerations and infection to the lower left extremity. The surgeon further noted that the operative report revealed the plaintiff's by-pass had failed and that there was critical ischemia of the left leg. The pathology report was consistent with such finding, reflecting severe atherosclerosis and extensive ischemic ulcerations on the shin and lateral ankle.

The surgeon opined, upon a review of the above records, that it was the failure of the by-pass graft that led to the progressively severe arterial insufficiency of the lower left limb and eventually to ulceration, infection and the need for amputation. He further opined that any alleged laceration on the knee resulting from the fall on June 14, 2007 was not the proximate cause of the amputation of the plaintiff's leg.

In opposition the personal injury plaintiff failed to raise an issue of fact. Despite the plaintiff's failure to timely serve an Affirmation in Opposition pursuant to this Court's directive, the Court nevertheless accepted the plaintiff's Affirmation in Opposition dated May 17, 2010. Since the plaintiff served the defendants in open Court on the date this matter was scheduled for oral argument, the Court adjourned the matter to June 21, 2010 for the defendants to serve Reply Affirmations. On the adjourned date, however, the plaintiff served a second Affirmation in Opposition. The Court did not accept nor reject the second set of opposition papers. Instead, it adjourned the matter again to June 28, 2010 so that the defendants could submit Reply Affirmations with respect to both Affirmations in Opposition.

What apparently happened is that the plaintiff failed to annex to its May 17th Affirmation in Opposition an opinion from a medical expert with respect to causation. In an attempt to remedy this defect, he just took it upon himself to serve a second Affirmation in Opposition on the return date of the motion. The Court agrees with the defendants that the second Affirmation in Opposition dated June 21, 2010 is procedurally defective and hereby rejects same.

Since the personal injury plaintiff only submitted a copy of the June 21st Affirmation in Opposition for this Court's consideration, there is no opposition to the defendant’s motion before this Court. Even if the plaintiff had submitted a copy of the May 17th opposition papers, the Court would nonetheless find them insufficient to raise an issue of fact. A review of a copy of the May 17th opposition papers annexed to the defendant’s Reply Affirmation establishes the plaintiff's failure to raise an issue of fact with respect to causation since there was no opinion from a medical expert. Moreover, even if the Court accepted the second affirmation in opposition, the Court would still find it failed to raise an issue of fact on causation since the affirmed report of the plaintiff's medical expert failed to indicate it considered all the pertinent medical records. As such, the Court finds the medical opinions of plaintiff's expert are speculative in nature. Where an expert's ultimate findings are speculative or unsupported by any evidentiary foundation the opinion should be given no probative force and is insufficient to withstand summary judgment.

Accordingly, the motions are granted. This action is hereby dismissed.

Defendants move for summary judgment...cont

May 7, 2015,

Shortly thereafter, CUCS found a non-elevator accessed apartment, on the second floor of a newly constructed building, located at 1615 Hobart Avenue in the Bronx. The building was owned by defendant LPI. The plaintiff viewed the apartment and subsequently executed a lease on February 24, 2007.

After living in the apartment for about four months, the plaintiff alleges he fell going up the stairs in the common area of the building on June 14, 2007, at approximately 1:00 p.m. After he fell, he picked himself up and proceeded to his apartment. He felt immediate pain to his leg but the pain lessened within half an hour. Plaintiff reported the accident later in the day to his home attendant. Consequently, the home attendant called 911. An ambulance responded and recommended the plaintiff go to the hospital but he refused. The plaintiff alleges that as a result of the fall he sustained blunt force trauma and a laceration to the left leg, resulting in infection which led to the subsequent amputation above the knee on August 30, 2007.

Plaintiff commenced a negligence action against PHCI, CUCS and LPI. With respect to PHCI, the plaintiff alleges that it failed to provide constant supervision, assistance and services and negligently provided inappropriate housing for the plaintiff. The plaintiff further alleges that CUCS deviated from good and accepted standards of social and human services and that it negligently placed the plaintiff in inappropriate housing. Lastly, plaintiff contends that LPI was negligent in the maintenance of the subject staircase.

LPI moves for summary judgment on the grounds the subject staircase was safe, complied with all applicable rules and regulations and free of any defects. The Plaintiff did not submit any opposition to LPI's motion. As such, that motion is granted.

PHCI and CUCS move for summary judgment on various grounds. PHCI contends that it did not breach any duty owed to the personal injury plaintiff since it did not locate the subject apartment. Both PHCI and CUCS contend that it was the plaintiff who, upon inspecting the apartment, chooses to accept it. The plaintiff was free to reject the apartment. In addition, PHCI argues that the plaintiff's injury are not casually related to any alleged negligence of any of the named defendants. Instead, the moving defendant contends that the amputation of the plaintiff's leg is the result of a long standing medical condition unrelated to the fall on the subject staircase.

The issue is whether or not defendant’s motion for summary judgment should be granted.
The Court finds that the PHCI defendants met their initial burden in establishing entitlement to summary judgment on the grounds that the plaintiff's amputation was not a result of any of the defendant’s alleged negligence. It annexed the affirmed report of its medical expert surgeon, a board certified vascular and thoracic surgeon. Upon reviewing the plaintiff's medical records which included: records from Albert Einstein hospital, Jacobi Medical Center, Bronx Center for Rehabilitation and the Ambulance Call Reports generated by the New York City Fire Department and PHCI’s records, plaintiff's deposition transcript and DR's deposition transcript, The surgeon opined that the fall on June 14, 2007 was not a substantial contributing factor, thus not a proximate cause of the amputation of the plaintiff's left leg. The doctor concluded that the plaintiff's severe underlying vascular disease which included arterial insufficiency and deep vein thrombosis was the proximate cause of the amputation of the plaintiff's left leg.

To Be Cont...

Defendants move for summary judgment

May 5, 2015,

Defendants move for summary judgment dismissing the plaintiff's action. Upon a review of the moving papers and opposition submitted thereto the motions are granted.

The plaintiff, in an unrelated accident, suffered a traumatic brain injury in 1997. In this negligence action, he suffered further injury to his hand and head in 2001. Despite the allegations of a traumatic brain injury, the plaintiff has commenced this action in his own individual capacity.

There is no evidence that a guardian was ever appointed to represent his interest nor have there been any allegations that the plaintiff is not incompetent.

As a result of his brain injury, the plaintiff was accepted to participate in the New York State Department of Health Traumatic Brain Injury Medicaid Waiver Program. According to the TBI Waiver Program manual, the program is administered by the New York State Department of Health through Regional Resource Development Centers (RRDC) and Regional Resources Development Specialists (RRDS) who serve specific counties throughout the state. The manual notes that program uses Medicaid funds to provide support, services and assistance to individuals with a traumatic brain injury to successfully include them in the community, as opposed to being institutionalized.

Waiver services are provided based on the participant's unique strengths, needs, choices and goals. The individual is the primary decision maker and works in cooperation with providers to develop a plan for services. This process leads to personal empowerment, increased independence, greater community inclusion, self reliance and meaningful and productive activities.

Defendant PHCI, a subsidiary of defendant PHHCSI was authorized as a Service Provider Program and as such it provided home and community support staff, independent living skills training and service coordination to participants of the TBI Waiver Program. PHCI became the service provider for the plaintiff in July of 2006.

In October of 2006, the plaintiff requested assistance from PHCI in finding a new residence. The plaintiff lived in a pet free building in the Bronx and was being evicted because he owned a dog.

In accord with the programs guidelines, PHCI submitted a written housing referral locator form to defendant CUCS. CUCS had an agreement with the New York State Office of Mental Health to provide locating services for the traumatic brain injury waiver program in New York City. The Referral indicated that the plaintiff sought a one bedroom apartment in the same neighborhood, or close to current neighborhood, which is within walking distance or a short commute from Jacobi Hospital. With regard to his accessibility needs, the referral forms stated that the plaintiff required an apartment with a bathroom modified for individuals with disabilities, a walk-in shower. In addition, the plaintiff required an apartment with elevator access or on the ground floor of a multiple dwelling or in a private house.

To Be Cont...

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CPLR §5501

May 3, 2015,

A Bronx Trip and Fall Lawyer said that, third party defendant moves pursuant to CPLR §4404 and §5501, to reduce the damages awarded to the plaintiff, after a jury trial, contending that the award is excessive and materially deviates from fair and reasonable compensation. The plaintiff sustained serious and catastrophic injuries when he fell while transversing a trench at a construction site in the Bronx. As a result of plaintiff's fall into a trench at the job site he became impaled on a reinforcement bar (rebar) that was surgically removed several hours after his admission to the hospital. It is in this setting that the jury, after a trial and after hearing testimony from plaintiff's physicians and other experts (that was largely uncontroverted) regarding the devastating and traumatic nature of the injury he sustained, rendered a verdict in the sum of $86 million including $20 million for past pain and suffering and $55 million for future pain and suffering.

A Bronx Spinal Personal Injury Lawyer said that, plaintiff's treating physician, the Director of Spinal Cord Services at Hayes Hospital, described in explicit detail the nature and effect of the spinal injuries plaintiff incurred. The physician provided the court and jury, inter alia, with a graphic picture of plaintiff's suffering, stating in part, that the pain plaintiff continues to experience "is of two types. He has nerve pain in his legs, and that nerve pain is perhaps one of the worst pains that you could think of. Imagine somebody stabbing you with a knife, a gazillion times, or with a pin all over the place. That numbness, that tingling, that stabbing sensation" is "present all the time, but it is a constant pain and that pain will not go away." The physician depicted plaintiff's chronic pain by providing the jury with a vivid description of the damage to plaintiff's spinal column when the rebar went into the area of his spinal cord and the compression fracture also caused by the pipe entering his body. He described the emotional pain sustained by the plaintiff caused by the distress of no longer having the ability to walk and the nerve pain emanating from his legs which hetestified was permanent. The jury also heard testimony regarding plaintiff's chronic bed sores, his catherization in order to urinate, his inability to control bowel movements, constant urinary track infections and repeated hospitalization for the conditions described by the medical physician.

The issue in this case is whether the damages awarded to plaintiff is excessive and materially deviates from fair and reasonable compensation.

Manifestly, pain and suffering awards are not subject to precise standards that permit a purely mathematically evaluation in order to determine whether a verdict deviates materially from what is reasonable compensation. CPLR §5501 requires that: "In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation."

To Be Cont...

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Lawrence Hospital Center

May 1, 2015,

A Bronx Birth Injury Lawyer said that, plaintiff, on her and her deceased daughter's behalf, sues defendants for medical malpractice and the daughter's wrongful death. The remaining defendants, defendant and Lawrence Hospital Center, separately move for summary judgment dismissing plaintiff mother's claims for emotional distress and lost society, comfort, and affection. Defendant also seeks dismissal of the mother's claims for lost support, services, and protection.

A Bronx Injury Lawyer said that, in opposition to defendants' motions, the mother maintains that her action is closer to the 2004 case decision, and the current record raises a factual issue whether her child was stillborn, since defendants do not show that the child took a breath or had a heartbeat. Defendants point out, however, that insofar as they failed to make that showing, it was unnecessary, because the mother pleaded a Sheppard-Mobley claim. Consequently, plaintiff mother now moves to amend her complaint and bills of particulars to clarify her alternative theories.

The difficult issue concerns the mother's claim for emotional distress: whether it falls under the 2004 case decision where a mother may recover for emotional distress when her child is stillborn due to medical malpractice, or where a mother may not recover for emotional distress when her child is born alive and then dies due to malpractice. In the latter instance, the court must dismiss the mother's claim for emotional distress, but may retain her claims for lost support, services, or protection, insofar as they are of pecuniary value, and other pecuniary loss from the child's wrongful death.

For the reasons explained below, the court determines defendants' motions for partial summary judgment and plaintiff's subsequent motion to amend her pleadings as follows. The court grants plaintiff's motion to amend her complaint and bill of particulars as specified, on the condition that the note of issue is vacated to provide defendants an opportunity to move again for partial summary judgment on her claim for emotional distress, unless defendants stipulate that the note of issue not be vacated. Therefore the court denies defendants' current motions for partial summary judgment without prejudice, insofar as they seek dismissal of her claim for emotional distress.

Regarding the claims that remain unaffected by plaintiff's proposed amendments, the court denies defendants' current motions, with prejudice, insofar as they seek dismissal of the mother's claims for lost support, services, or protection that are of pecuniary value or other pecuniary loss from the child's wrongful death. The court grants defendants' current motions insofar as they seek dismissal of the mother's claims for loss of the child's services during the child's life and for loss of the child's society, comfort, and affection, whether during the child's life or due to the child's wrongful accident death.

If plaintiff ultimately prevails on her claim that her child was stillborn due to medical malpractice and never born alive, then the expectant mother may recover for her resulting emotional distress, but may not recover on behalf of the unborn child, who, having not been born alive, would have no estate. Currently, however, plaintiff still maintains her alternative theory of relief: that her child was born alive and then died due to malpractice. If plaintiff instead prevails on this claim, then she may not recover for her resulting emotional distress, but may recover on behalf of her deceased child's estate for any pecuniary losses resulting from her child's death.
Pecuniary losses may include medical and funeral expenses and loss of future voluntary support and assistance that the child would have provided to her mother, even of only a nominal value. The child's immediate death does not totally extinguish the claims for lost services or pecuniary loss, as long as the birth injuries are not speculative.

To Be Cont...

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Mental Hygiene Law section 81.07...cont

April 30, 2015,

The court evaluator stated that when he met with the person, the person was not able to state why he wanted a guardian or what the guardianship proceedings were about. The court evaluator pointed out that the medical records did not indicate what the cause of his medical problems was. In one report, a medical expert states that he is unsure if the person's memory problems are due to the depression he suffers from or if they are the result of the brain injury he sustained in the accident.

The court evaluator stated that even though the person indicated that he was having difficulty managing his finances, he admitted that he has not had any problems paying his bills. The court evaluator further indicated that there may be a conflict with having R.K. appointed as the guardian since the person is claiming to be a vulnerable person who needs help and his personal injury attorney is the one who introduced him to the potential guardian. The court evaluator further stated that the person should be designated a person in need of a guardian and the guardian should have the limited power of assisting the person with the litigation only.
The person's income and assets at the present time consist solely of Workers' Compensation benefits in the amount of $ 1,600 per month.

The issue is who is rightfully maybe appointed as legal guardian of the incapacitated person.
Upon the testimony adduced at the hearing and the documents submitted as well as the court evaluator's recommendation, this court finds that the person is a person in need of a guardian of his property for a limited duration. This court will not accept the person's nomination of R.K. as his guardian due to the apparent conflict involved. The person met R.K. through his personal injury attorney with whom R.K. has a professional relationship. Zealously representing the interests of his proposed ward at a time when his own financial interests might be directly tied in with his associate attorney's financial interests can amount to competing and conflicting endeavors. Even the appearance of impropriety must be avoided at all costs.

The role of the guardian is to represent the person's best interest that includes obtaining a favorable settlement for the person in his personal injury action, if the action reaches that stage. Since R.K. was introduced to the person by his personal injury attorney, it is unclear whether or not R.K. would be able to be objective since the personal injury attorney has introduced him to potential wards in the past and will likely continue to do so in the future. The financial incentive to go along with the attorney's recommendations thereby creating the likelihood of continuing this practice of generating lucrative referrals as guardian in the future cannot be discounted.

Additionally, this court is disturbed by R.K.'s reference to the fact that he was essentially auditioning" for the role of guardian when he was called to M.F.'s office to meet with the person and his family. That there may have been a certain amount of "acting" involved in that meeting is a great possibility and further firmly establishes to this court the fact that an independent guardian should be appointed for the person and not an individual he met through his personal injury attorney who very well might have a monetary stake in the outcome of the litigation.

Accordingly, this court hereby appoints D.L., Esq., as the guardian of the property of the person for a limited duration. D.L.'s powers are limited to assisting the person in the personal injury litigation and limited to the duration of the litigation. However, the guardianship can be extended beyond the duration of the personal injury litigation upon good cause shown. These powers constitute the least restrictive form of intervention consistent with the person's functional limitations. Parenthetically, this decision in no way constitutes an evidentiary ruling in the event that the Noseworthy doctrine becomes an issue at the trial. Whether to reduce the burden of proof due to this brain injury will rest solely within the sound discretion of the trial judge. The bond that is normally required pursuant to Mental Hygiene Law §81.25, is hereby waived as the guardian will not be managing any of the person's assets. The guardian shall file an interim report and annual report, in accordance with Mental Hygiene Law §§81.30 and 81.31, with the Guardianship Department of Bronx County, 851 Grand Concourse, Bronx, New York. Failure to file said reports may result in the removal of the guardian. Petitioner is directed to submit an order and judgment on notice, along with a copy of this decision, in accordance with Mental Hygiene Law §81.16( c) and the guardian is directed to file his designation in accordance with Mental Hygiene Law §81.26. Said order and judgment shall be submitted in a timely fashion due to the exigency of these proceedings.

Mental Hygiene Law section 81.07

April 28, 2015,

A self-petition has been filed for the appointment of a guardian of the property of B.H., an alleged incapacitated person, hereinafter known as the ‘person’. This Court is obviously satisfied that the person was duly served with the order to show cause and petition and that all other necessary interested persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition. Mental Hygiene Legal Service (MHLS) was appointed to serve as the court evaluator.

The hearing was held on December 15, 2009. At the hearing the person was present and testified and consented to the appointment of R.K., Esq., as his guardian. R.K. also testified at the hearing.

The person is 32 years of age. The person presently resides with his wife and two (2) children at Bronx, New York 10467. The person stated that he was involved in an accident on Hudson Street in New York County on April 12, 2000, while he was working and fell off a scaffold. He hit his head when he fell and suffered a brain injury. The person has a lawsuit currently pending in Bronx County. He stated that he wants a guardian to help him because he has memory problems and he needs someone to make decisions for him. The person further stated that he has attention and concentration problems, anger issues, depression and suicidal thoughts. He takes medication for his various ailments. As a result of his limitations, the person wishes to have a guardian appointed for his property. He nominated R.K., Esq., whom he met at his personal injury attorney's office, as his guardian. His personal injury attorney is M.F., Esq. He further stated that he was voluntarily asking to have R.K. appointed as his guardian.
R.K., Esq., stated that he was nominated by the person and his family to serve as the guardian after meeting with all of them at M.F.'s office. R.K. further stated that he had previously met with the person a few years ago at M.F.'s office when a guardianship proceeding was being contemplated. R.K. then met with the family more recently in order to see if they were comfortable with him and would be willing to nominate him as the guardian. R.K. referred to his meeting with the family as an audition to see if the family liked him. R.K. admitted that he has a professional relationship with M.F. and that M.F. has introduced him to other individuals in the past with a view toward R.K. being nominated their guardian.

R.K. stated that the person and his family, including the person's father, who is a major player in making decisions for the family, was comfortable with him and asked him to serve as the guardian. R.K. stated that he has served as a guardian in New York and he has knowledge of what is involved in the person's personal injury action. When asked by the court evaluator if he thought it would be a conflict for him to serve as the guardian in light of how he came to meet the person, R.K. indicated that he would leave that up to the court.

To Be Cont...

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The defendant moved for summary judgment to dismiss the complaint...cont

April 26, 2015,

Contrary to the concurrence's claim, the courts are not suggesting that, in all cases, a professional registered nurse must possess the same knowledge of pharmaceuticals that the court properly demand of those who are authorized to prescribe them. Nor are the courts creating any new duty for registered professional nurses. Rather, our holding is informed by the fact that, in this case, as concerns the lack of epinephrine, plaintiff’s allegation of malpractice does not depend on a finding that The personal injury defendant should have taken extraordinary steps or made inquiry into an area of medicine that far exceeded the knowledge ordinarily expected of a nurse. To the contrary, the notion that a nurse should be aware of the importance of having epinephrine available when administering medication in the home setting is not a difficult one to embrace. After all, the fact that epinephrine is the antidote to anaphylaxis is widely known among laypeople. Indeed, many individuals who care for a child with severe allergies, or who have a spouse or partner prone to anaphylatic shock, are known to carry a dose of epinephrine in pockets and purses, regardless of their medical background.

Moreover, the administration of epinephrine is far from a radical procedure. Rather, the medicine is easily transportable in the form of auto-injector devices, commonly known as epi-pens, and apparently easily administered, as evidenced by the fact that the Legislature has expressly authorized summer camp personnel to use them. This fact further undermines the already inconsequential statement by the concurrence that the monograph LH cited, saying that epinephrine should always be available when Solu-Medrol is administered, does not establish that this recommendation has actually been followed in the general practice of home infusion therapy. In other words, the idea of having a dose of epinephrine available in cases where, as here, a person may encounter a substance known to cause anaphylaxis, is so obvious that common sense would seem to dictate that it be routine. Indeed, it is so intuitive, even to a layperson, that the antidote for anaphylaxis should accompany a medicine known to cause anaphylaxis, that lack of empirical proof that this recommendation is followed by the medical community should hardly compel the dismissal of the complaint. This is especially true in this case, where defendant has not offered any plausible reason why a physician would not prescribe epinephrine for use by a home infusion nurse if, in her role as coordinator of the delivery of patient services, the nurse suggested that it was medically indicated.

The concurrence invokes Education Law § 6902 in arguing that, by holding that the defendant should have inquired into the availability of epinephrine, the court are holding her to a standard in excess of what is required by statute. As conceded by the concurrence, however, the definition of the practice of the profession of nursing as a registered professional nurse, as provided by § 6902, encompasses a wide variety of tasks.

That the definition does not mention prescription medication is irrelevant to the issues in this case. Certainly that part of a registered professional nurse's job which the Legislature has identified as the provision of care supportive to or restorative of life and well-being is broad enough to embrace inquiring into the availability of epinephrine during home infusions of medications known to cause anaphylaxis. Moreover, the court notes that the definition of nurse practitioner also does not include any mention of prescription medication. Although the court recognized that nurse practitioners are separately authorized to prescribe medicine under certain circumstances, it is evident that these definitional sections were not intended to provide exhaustive descriptions of what nurses can and cannot do.

That a home infusion nurse live up to the standards established by the Court of Appeals in B v B is critical. Home infusion nurses work without the resources normally available in a medical office or hospital setting. The issue in this case is what steps must a nurse with no readily available support take to ensure that any and all reasonably foreseeable problems can be addressed so as to minimize patient harm. Nurses have become a crucial element in the provision of medical care. As recognized by the Court of Appeals in B v B, no longer are they automatons who operate by rote, but professionals who are expected to be proactive in their work, while always deferring to the reasonable directives of the doctors they work with. There is sufficient evidence in this record that The defendant failed to comport herself in accordance with this more modern model of nursing, and that if she had, the disaster that befell plaintiff and her family could have been averted. Consequently, the court finds that the motion court correctly denied the defendant summary judgment.

Accordingly, the order of the Supreme Court, Bronx County, entered on or about October 29, 2009, which denied defendant the defendant's motion for summary judgment dismissing the complaint and all cross claims as against her, should be affirmed, without costs.

The defendant moved for summary judgment to dismiss the complaint...cont

April 24, 2015,

The issue is whether or not the motion of the defendant should be granted.

Supreme Court denied the defendant's motion. It found that questions of fact existed as to where The defendant was at the time plaintiff first complained of trouble breathing and whether her location may have rendered her incapable of intervening quickly enough in case of an emergency. The court rejected AH's affidavit, finding that her lack of experience as a home infusion nurse rendered her opinion meaningless in a case where the standard of care to be applied was that of a home infusion specialist and not a generalist. The court credited the affidavits of both LH and the doctor, and expressly rejected the defendant's argument that plaintiff falls short of defeating her entitlement to summary judgment because it is irrefutable that Nurse The defendant had no authority to order or administer epinephrin.

Plaintiff’s expert submissions raised triable issues as to whether the defendant's alleged failure, after the onset of plaintiff's reaction, to properly maintain plaintiff's airway, to flush the IV, to perform CPR on a rigid surface, and to ensure a prompt response from emergency medical services, contributed to the severity of plaintiff's brain injury. The defendant moved for summary judgment to dismiss the complaint. Further, the defendant failed to even shift the burden to plaintiffs on the issue of whether she breached a professional duty by administering Solu-Medrol without an available supply of epinephrine.

It is basic that the party moving for summary judgment has the burden of establishing the absence of any factual issues to entitle it to judgment as a matter of law. Here, it was the defendant's obligation to establish the absence of a departure from good and accepted practice. However, AH's affidavit is completely silent regarding plaintiffs' allegation that the defendant had a duty to request a dose of epinephrine before beginning to infuse plaintiff with Solu-Medrol. As such, AH's affidavit is insufficient to shift the burden to plaintiffs to submit evidence creating an issue of fact. To the extent that AH states that the defendant acted in accordance with good and accepted nursing practices, without addressing specific personal injury allegations, such bare conclusory statements are also insufficient.

The concurrence has confused the parties' respective burdens on a summary judgment motion by arguing that the defendant should have been awarded summary judgment because plaintiffs failed to establish that it is common practice for Solu-Medrol infusion kits to include epinephrine. It ignores the fact that even AH's affidavit, which the motion court correctly determined, in relevant part, lacked probative value, does not state that epinephrine is not ordinarily prescribed by physicians in conjunction with the administration of Solu-Medrol. Rather, it states only that the defendant would have needed a specific order from a doctor. This statement is clearly insufficient to shift any burden to plaintiffs.

re epinephrine failed to shift the burden on that issue for the additional reason that, as the motion court correctly determined, AH was not qualified to render such an opinion. The court notes that our review of this issue is limited to whether the court providently exercised its discretion, and that the court will not disturb its determination absent a serious mistake or an error of law. Here, the motion court was correct as AH did not have any experience in home infusion. There is no evidence that her general nursing experience afforded her any insight into those skills unique to home infusion nurses. That absence is critical here. Because none of the experience AH did purport to have was necessarily transferable to the issue of whether The defendant should have carried out the infusion on plaintiff without having epinephrine available, and because she failed to lay any other foundation tending to support the reliability of her opinion, the motion court properly rejected AH's affidavit when considering the epinephrine issue

Even if AH had succeeded in shifting her burden on the epinephrine issue, plaintiffs amply demonstrated the existence of an issue of fact. Plaintiffs do not contend, as the defendant suggests, that the defendant should have prescribed epinephrine herself or otherwise obtained it without the proper authorization. Rather, plaintiffs claim that the defendant had a duty to inquire if epinephrine was available before she proceeded with the infusion. To impose such a duty on a nurse is not, as the defendant also suggests, to grant the nurse a license to practice medicine. Rather, it recognizes the critical role of nurses as a check against medical error.
The Court of Appeals discussed the crucial job nurses perform in B v B. In that case, the plaintiff suffered an eye injury at work and went to the emergency room the next day. An emergency room nurse and the supervising physician both separately took medical histories which failed to elicit information that would have led to proper treatment of the eye. The plaintiff sought to hold the hospital vicariously liable for the misconduct of the doctor and the nurse. The Court of Appeals had to consider whether the applicable statute of limitations was for negligence or for medical malpractice.

The court concluded that by not taking a proper medical history of the plaintiff, the nurse failed to carry out her role as an integral part of the process of rendering medical treatment to a patient.

Here, there is no evidence that the physician who prescribed the Solu-Medrol affirmatively decided that it was unnecessary to direct that epinephrine be included in the supply box that was delivered to plaintiffs' apartment. Consequently, it cannot be said as a matter of law that the defendant was simply carrying out a prescribed treatment plan. If, on the other hand, the physician's failure to ensure the availability of epinephrine was an oversight, or the result of a mistaken assumption by the doctor that Accuhealth would independently procure an epinephrine prescription, the defendant could have served as a critical backstop by assuring that epinephrine was available. After all, the injuries plaintiff suffered were a medically recognized consequence of the infusion. Again, the Court of Appeals in B v B identified one of the crucial roles of the modern professional nurse as that of one who coordinates the delivery of a myriad of patient services. Here, the allegation is that the defendant failed in that role, and that her actions constituted those of a passive, servile employee. Plaintiffs have certainly submitted sufficient evidence to require that a jury determine the issue.