Child Injured in Car Accident

August 18, 2012,

On October 31, 1958, a little girl was waiting in a mobile x-ray truck to be x-rayed. She was unaware that just behind the truck, a panel van was attempting to pull away from the curb. The panel van’s rear bumper became interlocked with the bumper of the car that was parked behind him. As the driver pulled around the x-ray van which was also parked against the curb, it pulled the car that was hung onto the bumper forward. The car was forced into the back of the x-ray van. The car accident caused the child to become injured. Her guardian filed a lawsuit against the driver of the van and the company that he worked for.

The driver of the panel van died of natural causes before the case came to court. The company that employed him and owned the panel van that he had been driving on that date admit that the van was there. They admit that the accident was reported to them. They do not know the specifics of the accident because the driver is no longer available to testify. The company asked the court permission to not be held to as high a standard of proof for their case because they are unable to know the details that led up to the accident. The court points out that following the accident, the company asked for and obtained a statement from the now deceased driver in reference to the circumstances surrounding the accident. A Nassau County Personal Injury Lawyer said the court also contends that the company is in fact in possession of an affidavit made by the driver and a copy of the accident report.

The company states that it is their understanding that the vehicle that became hung up on the panel truck was parked illegally. They maintain that there was no contact between their truck and the x-ray truck. They feel that they should not be blamed for the accident. They contend that the driver of the vehicle that was illegally parked and thus was the proximate cause of the accident.

The injured child’s guardian contends that the evidence as to the fault in the accident is overwhelming. The police report, and the statements taken from the driver when he was alive, all demonstrate that the accident was caused by the panel van when he backed into the parked vehicle behind him. A Suffolk County Personal Injury Lawyer said he then failed to stop and pulled the vehicle into the x-ray van where the child was located. The court contends that in this case even though the driver of the panel van is unable to testify at trial because of his death, there would be little to argue in his defense.

The guardian for the injured child filed a motion for summary judgment on the child’s behalf. That means that the court is able to determine at this point that there is no doubt that the driver of the panel van was at fault in the accident. The remaining litigation would only focus on the amount of damages that would be awarded from a jury. The court is always resistant to granting summary judgment rather than sending a case before a trial jury. Summary judgment is a last resort when a party to a litigation has proven beyond a doubt that there are no triable issues of fact that need to be settled by a trial. It is because there are no triable issues of fact that are left for a jury to settle that allowed the court to award a summary judgment in favor of the child who was injured. A New York Injury Lawyer said the company of the driver will have to pay damages to the girl.

At Stephen Bilkis & Associates with its truck accident Lawyers, have convenient offices throughout New York and the metropolitan area. Our personal injury lawyers can provide you with advice to guide you through difficult situations. Without an accident attorney, you could lose precious compensation to help your family.

Plaintiff Claims She was Defrauded

August 7, 2012,

The plaintiff in the case is Willie B. Sosa. The defendants in the case are Lorenzo Hines, Eddie Meyers, Harold Hall, and the Estate of Dessie Ree Meyers. The judge in the case is Arthur M. Schack.

About the Case

This is a case that involves a real estate dispute. The real estate in question is the property located at 363 Monroe Street, in Brooklyn, New York. A New York Injury Lawyer said the plaintiff moves to show cause for three branches of relief in the case. The first branch of relief is to stay the thirty-day notice of termination which is dated the 27th of April, 2006. The plaintiff states that this notice violates the notice requirements for ending a tenancy.

The second branch of relief is for a declaratory judgment that the notice of termination is a nullity as there is not lease agreement or tenant/landlord relationship between the two parties and the plaintiff is the rightful owner of the property.

The third branch of relief is for the court to issue a restraining order for all actions and proceedings on behalf of the defendants Hines and Myers in respect to the collection of rent and the transfer of the property, pending the outcome of the action of the plaintiff to recover her interest in the property through rescission of deeds that are dated the 28th of December, 1999, and the 31st of March, 2006.

Plaintiff’s Argument

The plaintiff states that she was defrauded in December of 1999 when she deeded the property on 363 Monroe Street to her niece Dessie Ree Myers and her husband Eddie Myers. At the time the plaintiff and her niece were joint tenants with the right of survivorship. A Brooklyn Personal Injury Lawyer said the deed in question is exhibit C of the order to show cause. The witness who signed the deed is Harold Hall, Esq.

The plaintiff states in her affidavit to support her order that she only has a third grade education that she received in the 30s in the state of Mississippi and that she has no experience in legal and financial matters. In the verified complaint, the plaintiff’s attorney states that the plaintiff is 83 years old and that she did not realize at the time that she was signing away her rights to the property, which was a life long investment, her home, as well as her sole asset. The only professional representation at the signing was the lawyer of her niece, Harold Hall, who she states assured her that she was not giving up her property.

Defendants Argument

Mr. Meyers in his defense presents a number of bills, cancelled checks, and other related documents to show that after December of 1999, he and his wife acted as the owners of the premise. The couple paid the real estate taxes, water charges, and the property insurance.

Dessie Ree Myers passed away in March of 2006 and at this time, Mr. Myers deeded the property to Lorenzo Hines, Dessie’s nephew. Hines then proceeded to serve the plaintiff with an eviction notice, which is the premise of the case.

Case Results

The court has found that in the case of the thirty day termination notice, the stay is granted to the plaintiff. A Manhattan Personal Injury Lawyer said the order to show cause that the plaintiff is the rightful owner of the property is denied. The order for a temporary restraining order is also denied.

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Court Discusses Doctor Patient Privledge

August 6, 2012,

On 17 March 1979, infant plaintiff was born. Allegedly, infant plaintiff suffered brain damage, a brain injury, as a result of negligent obstetrical care.

Thus, a medical malpractice action was brought by the infant and his father on the basis of the birth injury or birth injury accident.

At an examination before trial, plaintiffs produced the infant's mother, a nonparty witness.
Defendants subsequently moved for an order directing the infant's mother to appear for further examination before trial and to answer questions concerning her prior health history and the birth and physical condition of her two eldest children.

A New York Injury Lawyer said that although Special Term expressed its view that disclosure should be directed, it denied the motion on constraint of the Second Department's holding in a similar case.
The Appellate Division reversed and granted the motion for further examination before trial. The court held that there is no physician-patient privilege in testimony as to what actually happened. The privilege applies to confidential information given to the physician which enables him to act in his professional capacity.

Under the State's liberal discovery scheme: there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action. However, upon objection of a party, privileged matter shall not be obtainable. Therefore, a Bronx Personal Injury Lawyer said that potentially shielded from discovery are communications deemed privileged under the Civil Practice Law and Rules (CPLR 4504), which provides in part that: Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, or dentistry shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

Although the physician-patient privilege did not exist at common law, New York became the first jurisdiction to adopt the privilege by statute in 1828. A Brooklyn Personal Injury Lawyer said its enactment was based on the belief that fears of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment. The privilege has been severely criticized because of serious doubts that its truth-inhibiting effect can be justified by any real promotion of the public health. The privilege applies at examinations before trial and it covers both oral testimony and documents, such as hospital records, which presumably are drawn up in large part based on communications imparted by the patient to the treating physician.

Although the statute is phrased in terms of not allowing a medical professional to reveal information acquired in a professional capacity from a patient, it serves also to protect the patient from being compelled to disclose the substance of a communication made to the medical professional in an attempt to obtain treatment. Otherwise, little practical protection would be accorded patient-doctor communications. That which the privilege seeks to protect, however, and thereby foster, are confidential communications, not the mere facts and incidents of a person's medical history.

In a similar case, the court has held that: The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, "What did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.

Thus, just as a party cannot conceal a fact merely by revealing it to his lawyer, a witness may not refuse to answer questions regarding matters of fact, such as those posed in this case, as to whether her children had any physical or congenital problems, whether she was in the care of a physician or was taking medication during a certain period of time, or concerning the facts surrounding an abortion merely because those topics relate to events that required medical care or advice from a physician.

In determining whether certain information is protected under the physician-patient privilege, the burden is on the party asserting the privilege to show the existence of circumstances justifying its recognition.

The court finds that there is no need to decide, on the instant appeal, whether the information sought by defendants is relevant. Such a determination must be made by the trial court based on the circumstances of each case with due regard for the policy favoring broad pretrial discovery. The court interprets the certified question of law as asking only whether the Appellate Division had the power to allow further examination of the witness at defendants' option. The certified question is answered in the affirmative because the court holds that physician-patient privilege does not provide a basis for the witness to refuse to reveal the information sought.
Therefore, a witness at an examination before trial in a medical malpractice action may invoke the physician-patient privilege (CPLR 4504) to avoid revealing the substance of confidential communications made to her physician, but may not refuse to testify as to relevant medical incidents or facts concerning herself or her children.

Accordingly, the court finds no error in the Appellate Division's decision granting defendants' motion for further examination of the nonparty witness.

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Birth Injury Action May be Barred by Statute of Limitations

August 5, 2012,

On 3 July 1970, an infant was born at the General Hospital. Allegedly, as the result of the defendants' negligence, the infant suffered permanent neurological injury or brain injury, resulting in mental retardation and cerebral palsy. She was discharged from the General Hospital on 10 July 1970, and the hospital's discharge record contained a notation to the effect that no further treatment was needed. A New York Injury Lawyer said during the ensuing 20 months, the infant received periodic outpatient medical care, including treatment for an apparent heart murmur, at another Hospital, a private facility, and, during that same period, she was treated on several occasions at the General Hospital emergency room for medical problems that were unrelated to the injuries caused by the alleged malpractice.

On 29 February 1972, the infant was admitted to the private Hospital for evaluation, and she remained there through 13 March 1972. During her stay at the private Hospital, the infant was diagnosed, for the first time, as suffering from psychomotor retardation.

On 17 March 1972, four days after she had been discharged from the private Hospital, the infant was seen as an outpatient at the pediatric clinic of the General Hospital. Significantly, the purpose of this visit, i.e., for treatment of fever, vomiting and diarrhea, was unrelated to the infant's newly-diagnosed retardation, although the hospital's record of the visit described the infant as obviously retarded and contained a suggestion that perhaps an ear, nose and throat evaluation should be made in order to assess the 20-month-old infant's speech difficulties.
Thereafter, and during the ensuing eight-year period culminating with the service of a notice of claim on 8 February 1980, the infant made numerous intermittent visits to the General Hospital for emergency-room treatment for unrelated injuries and illnesses, regular pediatric medical care and examinations and consultations related to her retardation. The intermittent nature of these visits is evidenced by the fact that on 1 May 1973, the infant was brought to the General Hospital because she had exhausted the medication that had been previously prescribed by a hospital physician for treatment of an upper respiratory infection. A Staten Island Personal Injury Lawyer said the infant did not return to the General Hospital until 2 December 1974, approximately 19 months later, when she was seen at the pediatric clinic.

It appears that, as of 1974, the infant was utilizing a private Hospital as the primary provider of treatment related to her neurological problems, and the General Hospital was simply providing intermittent emergency and routine care, as needed, for problems which were, for the most part, unrelated to the injuries allegedly sustained at the time of the infant’s birth. Thereafter, during 1975, she received an electroencephalogram at the General Hospital, the results of which were described as abnormal. This was followed by an examination by the hospital's developmental evaluation clinic, which assessed the infant to be a severely retarded child functioning at no more than one year of age, and placed her on medication subject to further monitoring. She was subsequently seen by the hospital's neurology department on 4 June 1975, 8 October 1975, and 20 November 1975, and, on 7 and 8 of December 1975, additional electroencephalograms were administered.

In January 1976, the infant was admitted to the General Hospital as a result of increased seizure activity. Another electroencephalogram was performed on 7 May 1976, and she received another neurological examination on 9 September 1976. On 28 February 1977, the infant's neurological condition was again reviewed, and her medication was changed. After that date, she was seen at the General Hospital several times between March and June 1977 regarding medical problems unrelated to her retardation and seizures. The infant's next visit to the General Hospital occurred in November 1978, 17 months later, when she was admitted, through the emergency room, with a diagnosis of seizures and cerebral palsy. The infant was thereafter seen intermittently at the General Hospital during 1979 through 1981 for a variety of ailments, including her neurological disorders.

The General Hospital, at the time of the infant’s birth, was owned by the defendant, City of New York, and operated through the defendant, New York City Health and Hospitals Corporation.
Subsequently, a medical malpractice action ensued.

Plaintiff did not serve a notice of claim until 8 February 1980, and the medical malpractice action was thereafter commenced by service of a summons and complaint on or about 6 August 1982, although plaintiff alleged that the infant's neurological injuries or birth injuries resulted from negligent care and treatment rendered on the date of the delivery,.

Defendants interposed an affirmative defense that the action had not been timely commenced and was barred by the Statute of Limitations.

Following joinder of issue, defendants moved to dismiss upon the ground that the plaintiff had failed to serve a notice of claim on behalf of the infant within the time prescribed by General Municipal Law.

Plaintiff opposed the motion and cross-moved for an order dismissing the affirmative defense.
Plaintiff contends that the infant received continuous treatment for those neurological disorders at the General Hospital from the date of the infant’s birth at least through 31 December 1979 and, therefore, the service of a notice of claim on her behalf on 8 February 1980, was timely.
In a memorandum decision, Special Term held that the plaintiff's notice of claim had not been timely served, and that the time in which to apply for leave to serve a late notice had expired, thereby requiring dismissal of the action and rendering academic the issue of the Statute of Limitations defense. A Suffolk County Personal Injury Lawyer said on 24 May 1984, Special Term granted the defendants' motion to dismiss the action and denied the plaintiff's cross motion.

The issue here is whether the service of a notice of claim almost 10 years after the date of the alleged malpractice was timely by reason of the tolling provisions for infancy or the continuous treatment doctrine.

It is uncontroverted that the alleged malpractice in this case occurred on 3 July 1970, at or about the time of the infant's birth. Thus, pursuant to the provisions of General Municipal Law, the plaintiff was required to serve her notice of claim within 90 days of that date. Clearly, the service of the notice by the plaintiff on 8 February 1980, almost 10 years later, was untimely, and the action must therefore be dismissed unless the plaintiff establishes that the time for serving the notice was tolled, either by reason of infancy or by virtue of the continuous treatment doctrine.

Here, the plaintiff may not avail herself of the more liberal provisions of the post-1976 statute. The amendment, which became effective on 1 September 1976 is not applicable to claims which arose more than one year prior to its effective date; such claims have passed beyond the power of judicial recall. Thus, the timeliness of the plaintiff's service of her notice of claim must be determined on the basis of the prior law, which required that an application for leave to serve a late notice of claim be made within one year after the event from which the claim arose, and which was not tolled by infancy. Measured by this standard, the service of a notice of claim on 8 February 1980 was untimely.

Next, the court must consider her contention that the service was timely by reason of the continuous treatment doctrine, for it is settled that, in a medical malpractice case, the 90-day period for serving a notice of claim, which runs from the date on which the claim arose is tolled by a continuous course of medical treatment relating to the same original condition or complaint. It is the plaintiff's burden to establish the continuous nature of treatments which take place after the date of the alleged negligence.

The court agrees with Special Term that there is no basis for application of the continuous treatment doctrine. This judicially-created rule, which has now been codified, is premised on the basis that it would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician or hospital superintendent or by filing a notice of claim in the case of a city hospital. The doctrine's rationale rests, in part, on the further premise that the trust and confidence that marks the physician-patient relationship puts the patient at a disadvantage to question the doctor's techniques and gives the patient the right to rely upon the doctor's professional skill without the necessity of interrupting a continuing course of treatment by instituting suit. Consequently, where the relationship between the patient and the provider of treatment has been severed, or where continuing treatment for the same or related illness or injury, after the alleged malpractice, has been terminated, the continuous treatment doctrine loses its efficacy; there is simply no reason for a patient to defer the commencement of legal action to recover damages for the alleged malpractice.

Thus, in order to effectuate the purpose of the continuous treatment doctrine and, at the same time, to prevent a complete abrogation of the Statute of Limitations and the applicable notice of claim requirements, the doctrine is limited in two important respects.

First, continuous treatment may not be based solely on the finding of a continuing physician-patient or, as in this case, hospital-patient relationship; and it is necessary that there be an ongoing course of treatment for the same or related illness or injury continuing after the alleged negligent act or omission. Visits concerning matters that are unrelated to the original condition, including visits for routine examination, do not implicate the continuous treatment doctrine.

Second, the treatment for the illness or injury must, in fact, be ongoing and continuous. The continuous treatment doctrine does not contemplate intermittent treatment where substantial gaps of time exist between consultations. Once the provider of medical services considers the patient's treatment to have been completed and does not contemplate further examinations or treatments, the Statute of Limitations (and the time for service of a notice of claim) may begin to run, although a complete discharge of the patient will not preclude the application of the doctrine where the patient timely returns to the hospital or physician to complain and seek further treatment of the same condition for which treatment had initially been rendered. In the absence of such a timely return, i.e., soon after the initial treatment, subsequent visits may be viewed as intermittent rather than continuous medical services. The existence of substantial temporal gaps between visits or treatments serve to break the continuity which is essential for the application of the doctrine; each such medical service may be deemed to be discrete and complete, and the latter visit may be viewed as a resumption of treatment rather than a continuation of the prior treatment. Moreover, it is the rule in the Second Department that the continuous treatment doctrine is inapplicable where the interval of time between visits or treatments exceeds the applicable period of limitations.

Clearly, the treatment afforded to the infant at the General Hospital for her neurological injuries and related disorders was plainly intermittent and constituted, for the most part, separate and discrete treatments. The existence of substantial temporal gaps between visits militates against the application of the continuous treatment doctrine. In particular, the infant was released from the General Hospital on 10 July 1970, and no further treatment was contemplated at that time. Although she returned to the General Hospital on several occasions for emergency-room treatment that was completely unrelated to the injuries in question, the hospital did not undertake to render care and treatment related to the infant's neurological condition until 17 March 1972, at the earliest, more than 20 months after she had been released. Thereafter, the infant did not visit the hospital at all during the 19-month period between May 1973 and December 1974, and during the 17-month period between June 1977 and November 1978. In each instance, these intervals between treatments exceeded the applicable one year and 90-day Statute of Limitations, thereby rendering the continuous treatment doctrine inoperative. Moreover, the remaining visits were, for the most part, sporadic and intermittent. In fact, it appears that during much of the time in question, the infant was receiving treatment for her neurological disorders at other institutions having no nexus with the General Hospital.
Accordingly, the cause of action for medical malpractice arose on 3 July 1970, the date of the commission of the alleged acts of malpractice and, because the period in which to serve a notice of claim was not tolled pursuant to the continuous treatment doctrine, the service of a notice of claim by the plaintiff in 1980 was clearly untimely, and the action was properly dismissed.

The Order of the Supreme Court of Queens County is affirmed.

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Midwife Sued for Medical Malpractice

August 4, 2012,

A woman was found to be pregnant and she went for an ultrasound. It was determined that she was carrying twins. The pregnant woman opted for a home birth instead of giving birth at a hospital. She wanted to be assisted by a midwife and nurses.

A New York Injury Lawyer said she nurse/midwife who had her own clinic and lying-in clinic diagnosed one of the twins to have a weak heart sound: the baby’s heart rate decelerated at times. The nurse/midwife recommended that a follow-up sonogram be done at a hospital. The hospital found that the baby’s heart rate had already stabilized. The woman wanted to give birth at the hospital but she also wanted to be assisted in the birth by her own nurse/midwife. The doctors at the hospital told her that her nurse/midwife did not have credentials or birthing privileges at their hospital. They told her that if she were to decide to give birth at the hospital, she would be cared for by one of the obstetricians on their staff.

The woman left and her pregnancy progressed. She stuck it out under the care of the nurse/midwife. She gave birth at her home on July 1, 2004. One of her twin babies was stillborn. The death certificate as filled out by the nurse/midwife listed the cause of death as undetermined.

The mother and the father of the dead twin sued the nurse/midwife for medical malpractice. It is their contention that the child sustained a birth injury which caused his death. They included in the suit all the nurses who attended the birth as well as the birthing/lying-in clinic where all the nurse/midwives and nurses were all employed.

One of the nurses filed a motion for summary judgment. She asked that the complaint against her be dismissed on the ground that she was a mere student-nurse at the time and she was more of an observer and not an active participant in the birth. A Manhattan Personal Injury Lawyer said she said she was the photographer and she wrote down entries in the birth log. She also admitted to having injected Pitocin into the mother after her delivery to prevent hemorrhage. She claims that there is no tie between her and the nurse/midwife or the firm. She never attended or assisted in the actual birth and had no contacts with the mother or the dead child.

The nurse submitted an affidavit of a board-certified maternal-fetal specialist. He opined that the death of the child can be attributed to the failure of the nurse/midwife to document the fetal heart rate during the home birth. A Queens Personal Injury Lawyer said he also asserted that the nurse who filed the motion for summary judgment had no role in the pre-natal or post-natal care of the mother or the twins. The injury which caused the death of the twin cannot be attributed to any of the acts of the nurse.

The birth mother stated in her deposition testimony that the nurse actively participated in the home birth. She resuscitated the twin that died. The co-owner of the birthing clinic who was also present during the home birth asked for the nurse’s opinion: she asked the nurse’s opinion if the mother should be transported to the nearest hospital seeing that there were complications with the birth. From this, the birth mother insists that the nurse was present at the birth more than as a mere student/observer or photographer.

The only question was whether or not the nurse has proven that she is entitled to a summary judgment of dismissal.

The Court first reiterated the rule that the person who moves for summary judgment has the burden of proving that there are no material issues of fact that need to be tried before a jury. Her burden was to prove that she did not depart from good and accepted medical practice or that the mother and her child were not injured by any of her acts.

The mother submitted not only her deposition testimony as to the extent of the actual participation of the nurse; she also submitted an affidavit of an expert. The expert stated that the nurse was present at the birth as a registered emergency nurse. Her expertise is in the field of trauma. It was her duty to determine if the mother or the babies’ condition necessitated being transferred to a hospital because of the inadequacy of the home birth setting to deal with the complications of the birth. When she failed to assert that the mother should be brought to the hospital, her failure to act caused the child’s death.

It cannot be denied that there are material issues of fact that have to be tried. The question of the extent of the participation of the nurse; what her actions were; what her omissions were; these are all material issues of fact that have to be tried.

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Court Discusses Legal Concept of Res Ipsa Loquitor

August 2, 2012,

On 26 September 1981 at 9:29 A.M., a mother gave birth to a baby girl, the infant plaintiff, at a Medical Center. She was attended by an obstetrician-gynecologist. The delivery was difficult because the baby had shoulder dystocia, i.e., although the head had emerged, the shoulders were stuck on the pelvic bone and the sacral promontory. After birth, the infant was found to have a birth injury or a birth injury accident: an Erb's palsy or brachial plexus palsy to the right shoulder and arm caused by tearing of the nerve roots that controlled the right upper extremity. A New York Injury Lawyer said the plaintiffs contended that this condition was caused when the obstetrician-gynecologist applied excessive pressure during traction to the baby's head when trying to dislodge the shoulders. The doctor’s explanation was that during the dystocia a retraction caused by the natural forces of labor put a stretch on her right shoulder.

Thereafter, a medical malpractice action to recover damages for personal injuries, etc., ensued. The Supreme Court of Westchester County, upon a jury verdict, rendered judgment in favor of the respondents and against the plaintiffs.

The plaintiffs appeal from the judgment.

The plaintiffs contend that the trial court erred in refusing to charge the jury on the theory of res ipsa loquitur; that the trial court committed reversible error in limiting them without prior notice to one expert witness; that a certain remark made by the defense counsel in his summation was highly prejudicial and mandates reversal.

The court finds the plaintiffs' contentions to be lacking in merit.

Under the law, the doctrine of res ipsa loquitur permits a jury to infer negligence, based upon circumstantial evidence, from the mere occurrence of an event where the injury is of a character which would not ordinarily occur in the absence of negligence. A Long Island Personal Injury Lawyer said as a general rule, submission of the case on the theory of res ipsa loquitur is warranted when the plaintiff can establish the following elements: (1) the event must be of a kind that would not occur absent someone's negligence; (2) the event must be caused by an agency or instrumentality within the defendant's exclusive control; and (3) the plaintiff must not have voluntarily contributed to the event. Only when these essential elements have been established may the doctrine of res ipsa loquitur be charged to the jury.

In a medical malpractice case, the doctrine may be applicable where an inference exonerating the physician is improbable as a matter of fact. Thus, where an unexplained injury occurred in an area remote from the operative site while the patient was anesthetized, the doctrine of res ipsa loquitur has been applied. Additionally, where a foreign object is left in the body of a patient after an operative procedure is completed, a charge with respect to res ipsa loquitur would be warranted.

Here, the court finds that the facts adduced at trial were insufficient to establish the requisite elements so as to warrant a jury charge on the doctrine of res ipsa loquitur. Although, the plaintiffs' expert testified that the infant plaintiff's injury could not have occurred absent the respondents' negligence, the respondents' expert presented credible testimony that the injury was precipitated by the force of labor placing a strain on the infant's shoulder. This is not a case where the appraisal of the circumstances attendant upon the injury-causing event is within the competence of the ordinary lay jury even as supplemented by the testimony of the expert witness.

The court does not find that the trial court erred in limiting the plaintiffs' expert testimony. The plaintiffs' claim that the trial court limited them to one expert witness is inaccurate. The plaintiffs presented the testimony of a neurologist as well as that of an obstetrician-gynecologist. A Brooklyn Personal Injury Lawyer said the trial court did not deny the plaintiffs the right to present a third expert witness. Rather, following an offer of proof and a finding that the prospective testimony would be largely repetitive, the trial court limited the area about which the expert witness could be questioned. Whether or not evidence should be limited as cumulative is within the sound discretion of the trial court. Upon the record, the court perceives no improvident exercise of discretion.

Moreover, on the plaintiff’s last contention, the defense counsel in summation compared the plaintiffs' expert obstetrician-gynecologist to the television "gunman Palladin", stating that the expert's hallmark was "Have opinion, will travel". Although the remark may have been prejudicial, this isolated comment was followed by the court's prompt curative instructions. The court is satisfied that the improper remark did not influence the jury's verdict and, therefore, the error, if any, was harmless.

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Couple Sues for Birth Injury

August 2, 2012,

The Facts:

In March 1983, plaintiff was admitted to the labor and delivery unit of defendant Hospital. During the course of her labor, plaintiff's attending physician, defendant-doctor, prescribed pitocin to stimulate her contractions. A New York Injury Lawyer said the drug was administered intravenously to plaintiff and, as a result, her contractions increased in intensity and frequency. Subsequently, plaintiff gave birth to a baby boy. The infant was in respiratory distress at birth and died approximately 6 1/2 hours later (a birth injury or birth injury accident).

Plaintiff and her husband commenced an action alleging negligence and medical malpractice against the hospital, doctor and nurse, who attended to plaintiff throughout her labor and delivery.

Plaintiff seeks recovery for serious personal injuries, physical and emotional pain, disappointment, sadness, anxiety and psychological trauma; a derivative claim interposed by plaintiff's husband; against the hospital only for negligent hiring and supervision; recovery for the infant's wrongful death and the infant's conscious pain and suffering.

After the discovery proceeding had been completed, defendant-doctor moved for partial summary judgment dismissing the first two causes of action for failure to state a claim; defendant-nurse cross-moved for the same relief in a separate notice of motion; and the hospital sought dismissal of plaintiffs' first three causes of action in its motion for partial summary judgment. In support of their motions, defendants contended that plaintiff had not sustained any physical injury, a necessary predicate to plaintiff's recovery for the negligent infliction of emotional harm.
A Suffolk Personal Injury Lawyer said the Supreme Court granted defendants' motions for partial summary judgment dismissing the first, second and third causes of action contained in the complaint.

Hence, an appeal by plaintiffs ensued.

The Issue:
Was the partial summary judgment warranted under the circumstances? Are defendants absolved of any liability to plaintiff?

The Ruling of the Court:
First, plaintiffs contend that defendants' motions pursuant to the Civil Practice Law and Rules (CPLR) were essentially motions to dismiss and that the Supreme Court erred in failing to give them notice; that it intended to treat the motions as seeking partial summary judgment.
The court disagrees. Each defendant's notice of motion specifically requested partial summary judgment pursuant to CPLR. Moreover, plaintiffs' responding papers demonstrate that they were fully aware of the nature of the relief sought by defendants. Therefore, in the court’s view, no additional notice by the court was necessary.

Second, plaintiffs also contend that the Supreme Court erred in granting summary judgment dismissing their first three causes of action. In order to maintain an action for emotional injuries occasioned by the death of a newborn, the mother must be shown to have suffered a physical injury as a result of the alleged malpractice. In support of his motion for summary judgment, defendant-doctor submitted an excerpt from plaintiff's deposition wherein she stated that she suffered no physical injury from the delivery except for an episiotomy. Moreover, in his examination before trial, defendant-doctor rendered his opinion based on plaintiff's medical records that her labor pains were not excessively intense.

It has been ruled by a variety of courts that an episiotomy will not constitute a physical injury unless it is also alleged to be the cause of the infant's death. The foregoing proof prima facie established that plaintiff suffered no physical injury as the result of any alleged malpractice. In response, plaintiffs submitted only an attorney's affidavit alleging that plaintiff was physically injured by an excessive dose of pitocin. A Nassau County Personal Injury Lawyer said this allegation, however, unsubstantiated by any expert medical evidence, is insufficient to create a triable issue of fact.

Consequently, the Supreme Court did not err in granting defendants' motions for partial summary judgment.

The court has considered plaintiffs' other contentions and finds them to be without merit.
For a free consultation with regard to problems similar to the above, contact Stephen Bilkis & Associates. An experienced and well trained New York Birth Injury Lawyer from our firm can assist you. Our New York Medical Malpractice Attorneys are highly competent, determined to win every case and fight for your rights before courts of law.

Woman with Lung Cancer Sues Tobacco Company

August 1, 2012,

In 2005, the family of a woman who had died of lung cancer filed a civil suit against four cigarette manufacturing companies for her untimely death. The family stated that the woman had been enticed to start smoking at just 14 years of age and that she had smoked heavily throughout her life. A New York Injury Lawyer said the suite claimed that cigarette manufactures that were named in the suit had enticed her with attractive advertising that displayed cigarettes as harmless and in some situations in the early years of her addiction, the advertisements portrayed cigarettes as a healthy way to prevent illness.

Her family maintains that she was always concerned about her health and that she had taken several steps over the years to improve her risks based on more advertising by the tobacco companies. When the tobacco companies marketed lite cigarettes, they implied that these cigarettes had less tar and carcinogens than regular cigarettes. She switched to lite cigarettes to be more healthy. The family testified that she had tried unsuccessfully to stop smoking on numerous occasions and that she was not successful because she had become addicted to the cigarettes.

The family further stated that the tobacco companies knowingly manufactured these cigarettes that are dangerous, even though there were less dangerous alternatives that they could have produced. The suit specifically stated documentation that showed that the tobacco companies were aware of several options that could be less hazardous to the health of persons who chose to smoke and negligently dismissed producing them. These options included cigarettes made with coarser tobacco so that less of the tar is ingested. Another option that had been dismissed was manufacturing cigarettes without tar or other chemicals that are specifically dangerous. The family noted that the woman had specifically chosen filtered and lite cigarettes in an attempt to make her habit less damaging to her health. That was used as an example of the strength of her addiction as well as her desire to not harm herself with the use of cigarettes.

In 1969, the federal government of the United States began requiring tobacco companies to place warnings on their cigarette boxes stating that smoking has been proven dangerous to the health of people who smoke. Later, a Suffolk County Personal Injury Lawyer said very specific warnings were required on these boxes including warnings that cigarettes can cause birth defects, birth injuries, emphysema, and lung cancer. Since the woman died of lung cancer, her family maintains that the company should have been aware that they were endangering people’s lives with their products and that they should be liable for their actions.

The court maintains that it is true that much of the advertising prior to 1969 for cigarettes was deplorably misinformed, any action must relate only to that time period and not to the time period following 1975. The term between 1969 and 1975 was a transitional period in the marketing and control of the tobacco industry. A Bronx Personal Injury Lawyer said much of the advertising prior to 1969 did not display the facts about the health risks associated with tobacco use. By 1975, most people were aware of the dangers of cigarette smoking and many were taking steps to stop smoking entirely. The tobacco industry was under fire for their previous attempts to entice people with misleading and just plain untrue advertising that they had used prior to 1969. The fact that this woman became addicted prior to 1969 is a major issue in this case.

The family of the victim, testified that during the time period of 1964 to 1969, the woman had become addicted to the cigarettes and was not able to rid herself of her addiction until she sought medical assistance in the 1980’s only five years before her death.

This case demonstrates that there was a need for more guidelines and investigation into the advertising practices of tobacco companies long before the laws were written. However, the court determined that many of the motions made on both sides were not valid under the circumstances to the case at hand. Ultimately, the tobacco companies had requested that a summary judgment be granted to them to dismiss the case in its entirety because the family of the victim testified that no one knew why the woman had begun smoking at 14 years of age. The husband testified that when he met his wife, they were both smokers. He stated that they had changed brands multiple times over the years that followed. His wife usually changed to whatever brand that he was smoking at the time. He testified that they had switched to lite cigarettes in order to be healthier about smoking. He testified that they had switched to one brand because he remembered that the add had enticed him to switch and that she had followed his example. He testified that she had attempted to stop smoking each time that she became pregnant with one of their children, but that her attempts had only lasted a week or so each time. He stated that he believed that the tobacco companies were aware of the fact that their products were addictive and that they had intentionally pursued customers in an attempt to get them addicted to their products even with the knowledge that they were endangering their client’s lives. They demonstrated that this active pursuit was evident by much of the advertising in the 1950’s and 1960’s which involved candy and bubblegum cigarettes to encourage children to want to smoke real cigarettes when they got older. They produced advertising campaign examples that cited cigarette smoking as a means to prevent health problems. The family maintains that advertising like this, was not just misguided, it was criminal.

The family believes that the tobacco companies committed acts of fraud against the citizens when they began these campaigns. They feel that the tobacco companies should be held accountable for their behavior by the courts. The tobacco companies countered with the fact that the woman had chosen to follow her husband’s lead in smoking. They maintain that if anyone is to blame for this woman smoking, it was her husband who chose the brands and led the way. They also maintained that two of the tobacco companies named in the suit should be granted summary judgment excusing them from the suit because no evidence was produced to show that the woman had smoked any of their brands of cigarettes prior to 1969 when they were made aware of the health hazards of smoking.

The Supreme court agreed with the two companies that had proven that the woman did not start smoking their brands until after 1969 and they were vacated from the law suit and granted their request for summary judgment. In the case of the other two tobacco companies, the courts determined that the family had created a case with triable issues of fact that was appropriate for a jury to determine. Based on the evidence that was provided, the case was sent to trial on most of the basis precented.

Stephen Bilkis & Associates a New York personal injury attorneys are available to represent you from convenient offices throughout New York and Metropolitan area. There is no need to suffer from an injury that could have been prevented, whether it involves medical malpractice or a car accident. Our New York slip and fall lawyers can provide you with advice to guide you through difficult situations.

Mother brings Medical Malpractice Action for Birth Injury

July 30, 2012,

A woman was pregnant with her second baby in 2003. She gave birth to her first baby in 1997 and all went well. She saw the same obstetrician regularly for her pre-natal check-ups. He found that she was suffering from gestational diabetes during her second pregnancy. He notified her that her baby may be bigger than her first baby.

A New York Injury Lawyer said this was the second pregnancy, the doctor had already established that the woman’s pelvis was sufficient and adequate to allow her to give birth normally. As the woman was delivering her second baby, she was lying flat on the delivery table and her legs were spread apart with her heels hitched onto the stirrups, the woman’s pelvis broke. The bones where the two halves of her pelvis met were relaxed by the hormones of childbirth but the doctor performed a hyper flexion-abduction maneuver after she was given an epidural. She delivered her baby vaginally but after the child’s birth, the mother was rushed for surgery in the same hospital to repair her fractured pelvis with plates and screws. The mother sued the hospital and her obstetrician for medical malpractice for the injury she herself sustained in the course of her delivery and childbirth.

She maintains that her pelvis would not have fractured if the doctor had done his job (medical malpractice) and determined the baby’s delivery weight. The baby was huge because of her gestational diabetes and the mother’s pelvis would not have fractured if the baby were delivered via a cesarean section.
The defendant obstetrician and hospital moved for a summary judgment alleging that the break in the woman’s pelvis was due to the softening of the bones when the hormones of pregnancy work to loosen the joints to allow the pelvis to spread and allow the fetus to pass through the birth canal. They disclaim any departure from commonly accepted medical practice. They also cite the timely surgical intervention to repair the woman’s broken pelvis.

A Westchester County Personal Injury Lawyer said the trial court granted the summary judgment in favor of the defendant hospital and obstetrician. This is because the woman failed to submit her opposition to the motion for summary judgment. The woman appealed the dismissal of her cause of action but the Court of Appeals upheld the granting of the motion for summary judgment and the dismissal of the medical malpractice cause of action she had filed.

The woman then asked that she be allowed to re-litigate the motion. She cites that she had fired her lawyer who did not get along with the expert and this was the reason why she was unable to present the expert’s affidavit and deposition testimony. The trial court allowed the woman to re-open the issue of the motion for summary judgment.
The expert provided by the woman opined that the epidural given to the woman was unusually dense: the epidural should only block the sensation of pain but would not render her numb or insensitive to any other sensation. The expert asserts that force was used on the woman’s legs to allow her hips and pelvis to spread more so that the big fetus could be delivered. The expert also noted that the woman was not given an episiotomy ( a cut that would enable the head of the fetus to slip through the vaginal canal more easily). The expert also noted that the obstetrician left his patient to the care of a resident and that these were departures from commonly accepted medical practices.
After having heard all the deposition testimonies and all the opinions of the experts from both sides, the court decided to reinstate the complaint for medical malpractice. The hospital and the obstetrician appealed the reinstatement of the medical malpractice complaint.
The only issues before the court are: whether or not the trial court properly reinstated the complaint for medical malpractice; and whether or not there are still material issues of fact that need to be tried before a jury.
The Court upheld the trial court’s reinstatement of the complaint for medical malpractice. The Court also found that there are issues of fact that need to be tried. The case is set down for pretrial conference.
Did you suffer bodily injury as childbirth or delivery like this woman? Are you wondering if you have sustained a legal injury that can be subject of a case for damages? Call Stephen Bikis and Associates and ask to speak to any of their New York City Birth Injury Lawyers. Their New York Birth Injury attorneys are ready to listen to your story and render an opinion as to the viability of filing a medical malpractice suit. Their NYC Birth Injury attorneys can advice you as to your legal options. Their NY Birth injury lawyers can also represent you in settlement proceedings as well as in trial. Call Stephen Bilkis and Associates today.

Court Hears Medical Malpractice Case Concerning a Birth Injury

July 29, 2012,

A mother and her child filed a medical malpractice legal action against a hospital and three doctors. The mother allege that the hospital and the doctors basically failed to timely schedule a cesarean section as well as her delivery to her infant which was in double footling breech presentation. A double footling presentation is a condition whereby the fetus' both feet are the presenting part. As a result, it caused the infant to suffer a spinal injury during delivery, produce bleeding and swelling, and ultimately segmental spinal cord atrophy resulting paralysis and severe low muscle tone to the lower extremities, hydronephrosis, neurogenic bladder transverse myelopathy, and a marked spinal kyphosis. A neurogenic bladder transverse myelopathy is a condition indicating that there is something wrong with the spine. The mother claim that her infant, now four years old, was unable to walk, suffers from frequent urinary tract infections, requires continuous antibiotic therapy and urinary catherization. The mother further states that all of her infant’s injuries are permanent.

A New Injury Lawyer said the mother alleges that the hospital and the three doctors failed to perform a cesarean section when an external version was unsuccessful. Bases on records, an external version is known as a procedure used to manually turn a fetus from a breech position into a vertex position which is a normal presentation wherein the fetal head is the presenting part before labor begins. It is usually done to make vaginal delivery possible. The mother claims that the hospital and the doctors were negligent in performing the external version. She further claims that they failed to perform pelvimetry studies. A pelvimetry refers to the measurement of the diameters of the pelvis and it also recognizes a footling breech caused by a frank breech to become a footling breech. A frank breech has been described as the position of the fetus whereby the fetus' buttocks are present at the maternal pelvic inlet, legs are straight up in front of the body, and feet are at the shoulders. Additional, she claims that they failed to perform vaginal exams at 36 weeks.
During the mother’s pregnancy, she went to the said hospital for a prenatal visit. Thereafter, an ultrasound revealed a pregnancy and the estimated due date was calculated. The mother appeared for her scheduled prenatal visits until the time of birth. The mother then visited the hospital for a prenatal check-up at 37 weeks gestation wherein she was checked by a doctor. At that time it was noted that the baby was in breech presentation. The doctor advised the mother about her options of external version, a cesarean section, or vaginal delivery. The mother opts to attempt an external version.

Consequently, the mother was presented to the hospital for the attempted external version. The doctor who checked her performed the external version under ultrasound guidance. The external version was not successful and the mother was scheduled for a cesarean section after 9 days at which that time the pregnancy would be at 39 weeks gestation.

After 6 days, the mother was presented to the hospital with a reported spontaneous rupture of membranes. The mother testified that she spoke with another doctor on the phone when her water broke and he directed her to go to the hospital. A Suffolk County Personal Injury Lawyer said the triage record indicates that the doctor was notified and the patient was being scheduled for a cesarean section. The hospital provide that the Admitting Note documented that the mother was admitted at 38 4/7 weeks gestation due to spontaneous rupture of membranes with particulate meconium and footling breech presentation, and noted that a doctor was in route to the hospitals. A fetal heart monitor was applied, the mother was brought up to the delivery room and anesthesia was started. The surgery commenced and the infant was delivered.

After the mother filed the complaint, the hospital and the three doctor’s move for an order to grant a decision without trial and ask to dismiss the complaint. The hospital also submits a memorandum of law in support of their motion.

In the expert’s opinion presentation, an obstetrical physician opines that at all relevant time, the doctor’s care and treatment of the mother and the infant was within good and acceptable standards of medical practice. The doctor’s care of the mother and the infant did not proximately cause the infant's claimed injuries. The obstetrical physician also provides that pelvimetry is not presently routinely used and is not a useful diagnostic tool for cephalopelvic disproportion, a condition when the pelvis is inadequate to allow the fetus to negotiate the birth canal. The obstetrician states that the mother’s pelvis was assessed and her pelvic measurements were adequate and any claimed failure to perform pelvimetry studies is irrelevant.

A Nassau County Personal Injury Lawyer said the obstetrician further state that the hospital and doctors timely appreciated a footling breech and appropriately offered the mother about the option of performing an external version after 35 weeks gestation. The obstetrician also states that the attending doctor of the mother conformed to good and accepted standards during the external version and didn’t cause the claimed injuries during the procedure. The attending doctor of the mother performed a sonogram prior to the external version to confirm the position of the fetus and to ensure that the version was not contraindicated. The hospital set forth that the doctor explained to the mother that he was not optimistic that the version would be successful due to both the size of the baby and the size of the mother. As per the obstetrician's review of the records, the mother was given the appropriate information to allow her to make an informed decision as to whether to proceed with the external version.

The obstetrician submits that although the mother allege that the doctor should have immediately proceeded to a cesarean section delivery when the external version failed , the hospital's protocols do not permit elective cesarean section prior to 39 weeks gestation for breech presentation unless the mother has a rupture of membranes.

The obstetrician also opines that it is within a reasonable degree of medical certainty, that the attending doctor conformed to good and accepted standards during the cesarean delivery of the infant and while performing the low transverse incision. While the mother’s allege that a classical incision should have been made, the obstetrician maintains that a classical incision would have created more potential complications and during future pregnancies.

The mother however submits contrary to the opponents' submissions. The mother’s pediatric neurologist explained that the infant suffered a traumatic spinal cord insult as a result of the delivery process involving excessive traction, hypertension of the cervical spine, and distraction of the spine, producing bleeding and swelling and ultimately resulting in transverse myelopathy and spinal cord atrophy with resulting paralysis and/or severe hypotonia in the lower extremities, bilateral hydronephrosis and a neurogenic bladder. The mother's pediatric neurologist states that the injury suffered by the infant is a known complication of the use of undue traction during a breech delivery, whether performed vaginally or through an insufficient uterine opening, and that the facts are most consistent.

Consequently, the court found that the hospital and the three doctors' motion for decision without trial are denied. As the mother has discontinued the instant action against one of the doctor and it was revised.

It is very hard for any medical practitioner to handle a life threatening condition and they can never assure anyone what will happen after a medical procedure. If you are a medical practitioner who faces a client’s complaint, you can ask help from a NY Medical Malpractice Lawyer. If your child experience injury during birth, the NY Birth Injury Lawyers can provide you with most sound legal assistance. The New York Birth Injury Accident Lawyer at Stephen Bilkis and Associates can also be the most credible choice to help you maintain your rights and preserve your right to practice medicine.

Plaintiff Brings Action for Botches C-Section

July 28, 2012,

A mother and her child filed a medical malpractice legal action against a hospital and three doctors. The mother allege that the hospital and the doctors basically failed to timely schedule a cesarean section as well as her delivery to her infant which was in double footling breech presentation. A double footling presentation is a condition whereby the fetus' both feet are the presenting part. As a result, it caused the infant to suffer a spinal injury during delivery, produce bleeding and swelling, and ultimately segmental spinal cord atrophy resulting paralysis and severe low muscle tone to the lower extremities, hydronephrosis, neurogenic bladder transverse myelopathy, and a marked spinal kyphosis. A neurogenic bladder transverse myelopathy is a condition indicating that there is something wrong with the spine. A New York Injury Lawyer said she mother claims that her infant, now four years old, was unable to walk, suffers from frequent urinary tract infections, requires continuous antibiotic therapy and urinary catherization. The mother further states that all of her infant’s injuries are permanent.

The mother alleges that the hospital and the three doctors failed to perform a cesarean section when an external version was unsuccessful (medical malpractice)l. Bases on records, an external version is known as a procedure used to manually turn a fetus from a breech position into a vertex position which is a normal presentation wherein the fetal head is the presenting part before labor begins. It is usually done to make vaginal delivery possible. The mother claims that the hospital and the doctors were negligent in performing the external version. She further claims that they failed to perform pelvimetry studies. A pelvimetry refers to the measurement of the diameters of the pelvis and it also recognizes a footling breech caused by a frank breech to become a footling breech. A frank breech has been described as the position of the fetus whereby the fetus' buttocks are present at the maternal pelvic inlet, legs are straight up in front of the body, and feet are at the shoulders. Additional, she claims that they failed to perform vaginal exams at 36 weeks.
During the mother’s pregnancy, she went to the said hospital for a prenatal visit. Thereafter, an ultrasound revealed a pregnancy and the estimated due date was calculated. The mother appeared for her scheduled prenatal visits until the time of birth. The mother then visited the hospital for a prenatal check-up at 37 weeks gestation wherein she was checked by a doctor. At that time it was noted that the baby was in breech presentation. The doctor advised the mother about her options of external version, a cesarean section, or vaginal delivery. The mother opts to attempt an external version.

Consequently, the mother was presented to the hospital for the attempted external version. The doctor who checked her performed the external version under ultrasound guidance. The external version was not successful and the mother was scheduled for a cesarean section after 9 days at which that time the pregnancy would be at 39 weeks gestation.

After 6 days, the mother was presented to the hospital with a reported spontaneous rupture of membranes. The mother testified that she spoke with another doctor on the phone when her water broke and he directed her to go to the hospital. A Nassau County Personal Injury Lawyer said the triage record indicates that the doctor was notified and the patient was being scheduled for a cesarean section. The hospital provide that the Admitting Note documented that the mother was admitted at 38 4/7 weeks gestation due to spontaneous rupture of membranes with particulate meconium and footling breech presentation, and noted that a doctor was in route to the hospitals. A fetal heart monitor was applied, the mother was brought up to the delivery room and anesthesia was started. The surgery commenced and the infant was delivered.

After the mother filed the complaint, the hospital and the three doctor’s move for an order to grant a decision without trial and ask to dismiss the complaint. The hospital also submits a memorandum of law in support of their motion.

In the expert’s opinion presentation, an obstetrical physician opines that at all relevant time, the doctor’s care and treatment of the mother and the infant was within good and acceptable standards of medical practice. The doctor’s care of the mother and the infant did not proximately cause the infant's claimed injuries. The obstetrical physician also provides that pelvimetry is not presently routinely used and is not a useful diagnostic tool for cephalopelvic disproportion, a condition when the pelvis is inadequate to allow the fetus to negotiate the birth canal. The obstetrician states that the mother’s pelvis was assessed and her pelvic measurements were adequate and any claimed failure to perform pelvimetry studies is irrelevant.

The obstetrician further state that the hospital and doctors timely appreciated a footling breech and appropriately offered the mother about the option of performing an external version after 35 weeks gestation. A Suffolk County Personal Injury Lawyer said the obstetrician also states that the attending doctor of the mother conformed to good and accepted standards during the external version and didn’t cause the claimed injuries during the procedure. The attending doctor of the mother performed a sonogram prior to the external version to confirm the position of the fetus and to ensure that the version was not contraindicated. The hospital set forth that the doctor explained to the mother that he was not optimistic that the version would be successful due to both the size of the baby and the size of the mother. As per the obstetrician's review of the records, the mother was given the appropriate information to allow her to make an informed decision as to whether to proceed with the external version.

The obstetrician submits that although the mother allege that the doctor should have immediately proceeded to a cesarean section delivery when the external version failed , the hospital's protocols do not permit elective cesarean section prior to 39 weeks gestation for breech presentation unless the mother has a rupture of membranes.

The obstetrician also opines that it is within a reasonable degree of medical certainty, that the attending doctor conformed to good and accepted standards during the cesarean delivery of the infant and while performing the low transverse incision. While the mother’s allege that a classical incision should have been made, the obstetrician maintains that a classical incision would have created more potential complications and during future pregnancies.

The mother however submits contrary to the opponents' submissions. The mother’s pediatric neurologist explained that the infant suffered a traumatic spinal cord insult as a result of the delivery process involving excessive traction, hypertension of the cervical spine, and distraction of the spine, producing bleeding and swelling and ultimately resulting in transverse myelopathy and spinal cord atrophy with resulting paralysis and/or severe hypotonia in the lower extremities, bilateral hydronephrosis and a neurogenic bladder. The mother's pediatric neurologist states that the injury suffered by the infant is a known complication of the use of undue traction during a breech delivery, whether performed vaginally or through an insufficient uterine opening, and that the facts are most consistent.

Consequently, the court found that the hospital and the three doctors' motion for decision without trial are denied. As the mother has discontinued the instant action against one of the doctor and it was revised.

It is very hard for any medical practitioner to handle a life threatening condition and they can never assure anyone what will happen after a medical procedure. If you are a medical practitioner who faces a client’s complaint, you can ask help from a NY Medical Malpractice Lawyer. If your child experience injury during birth, the NY Birth Injury Lawyers can provide you with most sound legal assistance. The New York Birth Injury Accident Lawyer at Stephen Bilkis and Associates can also be the most credible choice to help you maintain your rights and preserve your right to practice medicine.

Plaintiffs Contend Exposure to Lead Paint

July 27, 2012,

The plaintiff in the case is Rickie Scott, et al. The defendant in the case is the City of New York. The judge for this case is Martin M. Solomon.

The Case

The defendant in the case, Bertram Fields, is moving for an order to grant him a summary judgment that dismisses the complaint by the plaintiff. Through a separate motion in the case, the defendant Merco Properties, Inc., is moving for the same relief. The City of New York submits an affirmation that joins in the plaintiff’s opposition to the respective judgments of summary motions made by the defendants.

Case Background and Facts

A New York Injury Lawyer said the plaintiffs in this case are seeking an action to recover the damages they incurred from being exposed to lead based paint while residing at the Brooklyn Arms Hotel. The plaintiffs in the case are the entire Scott family, which includes Ruby, her children, and her grandchildren. There are a total of 19 children involved in the case.

The Hotel in question is located in Brooklyn and is owned by the defendant Fields and is described as a building that is between 12 to 16 stories high and consists of between 267 to 361 rooms. Fields bought the hotel in 1950 and has owned it throughout the period that is relevant to the instant action.

The Hotel was leased to Merco through a written agreement that is dated the 18th of October, 1966. The lease ends on the 31st of May, 2011. In 1981, Joseph Merolla, Sr., who was the president of Merco, passed away. In the same year, the plaintiffs were placed in the hotel by the City of New York, who supervised housing for homeless persons, which included the Scotts.

Plaintiffs Complaint

The plaintiffs claim that from the years 1981 through 1984, infants Christopher, Allan, Manuel, David, Shamar, Jamie, Jimmie, and Janice were all exposed to lead paint while at the hotel. The plaintiffs also claim that while they lived at the hotel there were no attempts made to fix the issue of the hazardous lead paint condition. The plaintiffs assert their causes of action based on negligence, recklessness, gross negligence, and allege that the Housing and Maintenance Code for New York City was violated.

Defendants Arguments

To support their motion, the defendants rely upon affirmation from counsel, the testimonies of Fields and Slattery, and the lease agreements. The lease agreements are to prove that liability cannot be imposed upon them, pursuant to the lead paint law of the city. A Queens Personal Injury Lawyer said the defendants also argue that the deposition of Slattery establishes that he had not visited the hotel prior to purchasing his share and he was not aware of any complaints about lead paint. He also states that he was not aware of any emergency repairs or requests made by the Scotts while they resided in the building.

Conclusion

The Court will grant the defendants Fields and Memo a portion of the motion, to the extent that the plaintiffs will not be allowed to recover claims related to the breach of warranty of habitability or their claims of nuisance. However, a Staten Island Personal Injury Lawyer said relief from all other claims made against the defendants is denied.

Finding yourself in a situation that involves legal expertise can be intimidating. If you are in this type of situation and are seeking advice, Stephen Bilkis & Associates can help. We have offices conveniently located throughout New York City and offer free consultations. No matter what type of situation that you are in, including premises liability,, medical malpractice or product liability, we have experts willing to help you determine the next steps that you should take.