August 7, 2012

Plaintiff Claims She was Defrauded

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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August 6, 2012

Court Discusses Doctor Patient Privledge

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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August 5, 2012

Birth Injury Action May be Barred by Statute of Limitations

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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August 4, 2012

Midwife Sued for Medical Malpractice

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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August 2, 2012

Court Discusses Legal Concept of Res Ipsa Loquitor

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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August 2, 2012

Couple Sues for Birth Injury

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.
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August 1, 2012

Woman with Lung Cancer Sues Tobacco Company

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.

July 30, 2012

Mother brings Medical Malpractice Action for Birth Injury

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.

July 29, 2012

Court Hears Medical Malpractice Case Concerning a Birth Injury

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.

July 28, 2012

Plaintiff Brings Action for Botches C-Section

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.

July 25, 2012

Physicians Claim They Did Not Depart from Reasonable Practices

An action for medical malpractice alleges that the medical professionals negligently departed from good and accepted standards of medical/obstetrical care and treatment and failed to give informed consent to a woman during her admission to a University Hospital relating to her pregnancy, labor and delivery of her infant.

It is further claimed that the physicians failed to provide the infant with proper medical care and treatment causing the infant to suffer serious and severe injury. It is claimed that the infant suffered preterm labor, brain damage, cerebral palsy, non-coordination of muscles, global developmental delays, respiratory distress syndrome; persistent pulmonary hypertension, chronic lung disease, translucent membrane disease, abnormally high pigment amount, stomach reflux, pronated lower extremities with difficulty walking, reactive airway disease, cognitive impairment and delays, communicative impairment and delays, difficulty seeing with his left eye, pervasive development disorder, autistic spectrum disorder, loss of enjoyment of life, social-emotional developmental delay, and impaired earning capacity. It is claimed that the infant has been caused to require early intervention services, physical therapy, occupational therapy, speech therapy, and may require custodial care, medical care including therapies and equipment and special residential accommodations and modifications.

A New York Injury Lawyer said it is noted in the University Hospital record that the mother of the child, then a twenty-eight year old female, was admitted with a diagnosis of premature labor, to the service of a female gynecologist. It was her second pregnancy with a prior confidential termination of pregnancy. She was noted to be 33 1/7 weeks pregnant and the infant was estimated to be about five pounds. She complained of feeling pulling in her upper abdomen followed by rupture of the membranes with clear yellow-tinged fluid. Fetal movement was reported well and there was no vaginal bleeding. She had been seen at a town hospital where she was ruled/in for rupture of the membranes and transported to the University Hospital. At the University Hospital, the plan was to monitor her for contractions and if persistent, proceed with medication for at least 48 hours to obtain maximum benefit of steroids for the infant's lung maturity. The nurse's note written indicates a family member alerted the nursing staff that the mother was in the bathroom with the umbilical cord hanging out. One nurse placed her hand to relieve pressure on the cord and another nurse called a doctor. She was transferred to the labor and delivery room and an emergent caesarean section was performed. The birth report indicates that a male was delivered. Resuscitation was noted and he was intubated. Uneven chest excursion was noted.

The mother testified to the effect that she saw a gynecologist for prenatal care for the subject pregnancy. She was at home with her sister-in-law when her water broke. She called her doctor and went to a town hospital right away. The gynecologist examined the mother and had her transferred to the University Hospital as there was no NICU at the town hospital. He advised her that she would be delivering within the week. Upon arrival at the University Hospital, she was seen by a female doctor, and then transferred to labor and delivery, where she was seen by a male doctor. A sonogram was performed. Her catheter, which had been inserted at the town hospital, was removed. She was attached to the monitor and was advised she could use the bathroom and was assisted by the nurse when she first used it, and thereafter was permitted to use it without assistance. Another sonogram was performed because she was cramping and she felt something when she was wiping herself when she went to the bathroom and saw blood. She thought it was the baby coming out. Her sister-in-law, who was visiting with her, went for help which took about five minutes. A nurse came and told her just to sit there and went to get other assistance. A couple minutes later, the nurse returned with a stretcher and several people. She was still on the toilet so they told her to get on the stretcher and to get onto all fours. A nurse then inserted her hand into her vagina to hold the baby's head up from the cord. She was taken to the operating room and three days later she was told that her baby had a lot of lung problems, that he was intubated, and that he was critical.

A physician opines that cerebral palsy associated with prematurity is associated with indicative destruction of brain tissue seen on imaging studies or brain hemorrhage during or after birth. The records demonstrate that the child suffered from none of these conditions and his brain ultrasound tests were normal. A Brooklyn Personal Injury Lawyer said the infant’s toe walking improved and such physical improvement is not compatible with the diagnosis of cerebral palsy. Other symptoms related to PDD or pervasive developmental disorders include socialization and communication deficits. The child’s education support services consist of organizational skills and a child with low normal intelligence does not usually later improve to near genius IQ levels particularly if the child had allegedly suffered obstetrical brain damage. The physician opines that the medical records do not reflect any significant delay in reaching early developmental milestones. He further opines that there is overwhelming evidence that indicates that hypoxia-asphyxia was not present at the infant’s birth as he had an arterial cord blood pH and a base deficit which are not compatible with pH levels seen in asphyxiated infants, which would be a pH of less than the infant had during birth and a base excess of greater than the infant had. The Apgar scores of the infant during birth are also higher than the Apgar scores of an asphyxiated infant. Any oxygen desaturation suffered by the infant in the nursery was related to his translucent membrane disease and chronic lung disease due to the preterm birth rather than trauma or hypoxia.

Based on records, the court finds that the physicians have demonstrated legitimate entitlement to court ruling without trial dismissing the complaint on the issue that they did not depart from good and accepted standards of medical care and that they did not proximately cause any of the birth injuries which is claimed that the infant suffers from.

The complainants, in opposing the motions by the accused parties have submitted the affidavit of their expert physician. The affidavit is not notarized and therefore is not in admissible form to be considered. The mother and her infant have failed to raise factual issues on the issue of proximate cause of the claimed birth injuries to the infant in response to the opinions expressed by the physician and conclusion that the infant's claimed injuries were not proximately caused by hypoxia or birth trauma.

The complainant’s expert has indicated that the opinions in the affidavit do not address any claimed anesthesia departures. Therefore, a Bronx Personal Injury Lawyer said no factual issue has been raised with regard to the doctors. Counsel for the complainant’s claims that they are not opposing the branch of the motions for summary judgment related to the physicians. The mother and her infant's opposition are determined to be asserted against the physicians and resident doctors from the University Hospital.

A resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice so long as the doctor's directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene. A private physician may be held vicariously liable for conduct of a resident physician where the resident is under the direct supervision and control of the private physician at the time of the conduct; the key is whether the resident exercises independent medical judgment.

The record supports that the physicians were each working under the supervision and control of their respective doctor mentors and only acted within the scope relating to what care and treatment was approved by the doctor mentors. The complainants have not raised a factual issue to preclude summary judgment dismissing the complaint as to the resident doctors.
Doctors are sworn to make sure that people are given the best treatment that medicine can offer. They make sure that they preserve life and provide patients encouragement and hope but if your experience otherwise while in the care of medical professionals consult a NY Medical Malpractice Lawyer or New York Injury Attorney from Stephen Bilkis and Associates.

July 24, 2012

Plaintiff Contends Physician Did Not Operate Under Proper Standard of Care

A medical malpractice action is premised upon the alleged negligence of the physicians relating to the care and treatment rendered to a mother and her infant son during their hospitalization at the hospital. It is alleged that the physicians negligently departed from good and accepted standards of care in treating the infant, commencing with his birth and continuing through his discharge proximately causing the infant to suffer serious and permanent injury.

The pediatrician seeks summary judgment dismissing the complaint on the bases that he appropriately evaluated the infant for hypoglycemia or abnormally low sugar level and that he appropriately ordered treatment and that he did not depart from the hypoglycemia protocol. He also claims that he fully complied with the standard of care during his treatment of the infant. It is further asserted that his care and treatment of the infant was not the cause of the infant's alleged birth injuries.

A New York Injury Lawyer said the obstetrician seeks order without trial to dismiss the complaint as asserted against him on the bases that there is no evidence that he participated in the prenatal care and treatment of the mother, and therefore, the claims asserted against him pertaining to the prenatal period should be dismissed. He also contends that there is no evidence that he participated in the care and treatment of the mother other than between approximately 11:15 a.m. and 6:00 p.m. on May 23, 2003, and that any claims pertaining to any other time period should be dismissed. A fellow obstetrician contends that there is no evidence that he participated in the mother’s prenatal care other than one office visit on February 13, 2003, and a consultation on April 10, 2003, and therefore, all other claims asserted against him should be dismissed. Both obstetricians contend that the prenatal care and treatment provided to the mother was appropriate and within good and accepted medical practice, and that there is nothing that they did or did not do that proximately caused the infant to suffer the injuries claimed in the legal action.

In support of motion, A Queens Personal Injury Lawyer said the pediatrician has submitted an attorney's affidavit, copies of the summons and complaint, his answer and the complainant's verified bill of particulars; the complainant’s medical records; the affirmation of the pediatrician’s expert, an uncertified, partial hospital record; and the unsigned transcripts of the examination before trial of the pediatrician. The uncertified copy of the hospital record and the unsigned copy of the deposition transcript of the expert is not in admissible form. The court considered the pediatrician's deposition transcript, as submitted by him, and as adopted by him, as accurate. However, even if the evidentiary submissions were in admissible form, it is determined that the pediatrician has failed to establish a legitimate entitlement to a court ruling without trial.

The pediatrician testified that the infant had a low blood sugar, which increased after feeding. He also stated that the record indicated that there was meconium stained fluid or newborn’s first feces after the infant was delivered, which meant the infant had a bowel movement when it was being delivered. A Suffolk County Personal Injury Lawyer said he then noted that there was meconium with delivery of the infant's head. He continued that stress can cause meconium at any time during the pregnancy, not just terminal meconium. He stated that meconium is usually of no concern, as long as the baby starts breathing appropriately. He then testified that terminal meconium could be indicative of fetal distress. He stated that between 10 and 20 percent of deliveries had meconium. The infant was suctioned with a bulb syringe, and breathed with stimulation. He was admitted to the newborn nursery as opposed to NICU. He also testified that the mother of the infant had a history of high blood pressure and Lupus, and took 500 mg medications every 12 hours. Prior to delivery, the mother was administered Ampicillin as she was positive for strep B.
He further testified that there are conditions which alert the practitioner to potential problems in the infant. He set forth that hypoxia or oxygen deficiency and fetal hypoxia can cause meconium stained amniotic fluid, and that meconium can alert a physician to the possibility that the infant may have suffered some oxygen deficiency during labor and delivery. He testified that after delivery, the infant was seen by the neonatal nurse practitioner, who recommended routine care and blood glucose monitoring however, he did not have an understanding as to what, if any, indications there were for blood glucose monitoring after the infant was born. He continued that the newborn feces fluid would not be an indication for doing blood glucose monitoring, but that blood glucose monitoring is one way of evaluating how the baby is doing, and might be an indication of stress that the baby may have gone through. He continued that, physiologically, if there is stress, the baby would use up its glucose, and as a newborn, the infant may not have the mechanism physiologically to respond to the low glucose level. He stated that a low glucose level in a newborn infant can be consistent with the newborn having suffered some fetal distress. He believed he wrote his note, signed off on routine orders, and added that the hypoglycemic protocol be continued.

He further testified that he was not sure of the hypoglycemic protocol in existence at the time, and stated that all babies were getting blood sugars at one, two and three hours of age. He also thought that there might be a screening test, by heel stick, and the blood would be sent to the lab for confirmation. He thought the normal glucose level was approximately 40, plus or minus five, but the criteria changes and he did not know the criteria for 2003. He also testified that signs of hypoglycemia in the newborn would be listlessness and/or lethargy (just lying there, not responding or crying, attempting to feed but may not nipple), seizures, rapid breathing, and tachypnea or abnormal rapid breathing. He continued that apnea or absence of breathing could be a sign of hypoglycemia in a newborn infant. Prolonged hypoglycemia over an extended period can cause brain damage and seizures, as it would deprive the brain of the sugar that is needed for it to function. He stated that the blood sugar of 21 was abnormally low. The pediatrician states that did not know the glucose protocol at that time, but stated that the infant would be given glucose water or formula, and the blood sugar would then be repeated afterwards within the hour. If the infant did not respond, there would be an indication for starting an intravenous. He did not know the level the blood sugar was expected to rise to, to be satisfied that the infant responded, however, he felt 50 was an acceptable level. He did not know the time frame in which follow-up glucose levels were to be tested, or the time frame in which the glucose level should respond.

The pediatrician also testified that he did not consider starting an intravenous when he learned of the blood sugars on the morning of May 24, 2003. Thereafter, multiple attempts were made at starting an intravenous, peripherally, without success. He continued that if the nurse had been successful in starting the intravenous the infant would have been transferred to NICU at that time, but since the attempt was unsuccessful, the infant was not transferred. Thereafter, when he saw the infant's blood sugar was responding, he did not consider transferring the infant to NICU. He continued that if the intravenous was not started, the infant should be fed more frequently, but he did not indicate how frequently or the times the infant was fed. At 1 p.m., the infant's blood sugar was 29. He was not sure if that was an indication to transfer the infant to NICU or to have the infant seen by a neonatologist. He did not know if the glucose protocol called for intravenous dextrose, but stated that the glucose protocol, under certain circumstances, called for the transfer to the neonatal intensive care unit. However, he did not recall the protocol. At some point on the afternoon of the following day, the infant was transferred to NICU. There were no feedings between 2:00 a.m. and 10:20 a.m. The pediatrician testified that he did not have an understanding as to whether hypoglycemia in a newborn can lead to metabolic acidosis. He continued that there could be other causes for the metabolic acidosis, such as apnea, which leads to metabolic acidosis.

The attending physician of the mother ordered that a nurse practitioner be present for the delivery of the infant based upon the whole clinical picture including the woman’s being a 41 year old with chronic hypertension. The attending physician set forth the Apgar scores of the infant as 8/9, as evaluated by the nurse practitioner, who advised that the baby should be admitted to the normal newborn nursery, with glucose monitoring. The attending physician states that such glucose monitoring is a function of the hospital staff and any pediatric/neonatal consultants, and not the obstetrician. The attending physician opines that the fellow physician acted in accordance with good and accepted medical care and treatment in inducing labor to deliver the baby vaginally; that neither the biophysical profile with the non-stress test, nor any other results required delivery by caesarian section. The attending physician continues that the fetal monitor strips showed long term variability with no decelerations, however, the absence of decelerations is not supported by the fellow physician's interpretation of the tracings, raising a factual issue.

However, the attending physician does not state how the fetal status was evaluated without the monitor tracings, or upon what he bases his opinion that the infant was not in distress, or the cause of the meconium at delivery.

Based upon the foregoing, it is determined that although the attending physician stated that there was no departure from the standard of care and set forth the events and progress of the pregnancy, labor and delivery, no opinion was stated as to the significance and indications of the non-reactive stress tests, the low biophysical assessment results, and the standard of care when such results are obtained. The attending physician has not commented upon the mother's blood pressure during the pregnancy and labor although a history of hypertension has been noted, as well as on the vital sign sheet prior to delivery. The attending physician opines in a conclusive manner that although the fetal monitoring strips are missing for the indicated time periods, the mother and the fetus were appropriately monitored during those periods regardless of the availability of the strips. However, he does not state how the mother and the fetus were appropriately monitored. Importantly, the attending physician does not address the presence of meconium with the delivery of the infant's head, thus raising a further factual issue concerning whether the infant suffered fetal distress prior to delivery. Such factual issues preclude court order without trial.

Accordingly, the motion for an order relating to granting summary judgment dismissing the complaint is denied.

Parents always want the best for their children. If your child experience pain and injuries because of other people’s negligence, consult a NY Birth Injury Lawyer or a New York Birth Injury Accident Attorney. When such negligence is a result of wrongful medical practice, call a NY Medical Malpractice Lawyer from Stephen Bilkis and Associates.

July 19, 2012

Court Hears Birth Injury Case

On September 4, 1998, a pregnant woman was admitted to St Charles Hospital with complaints of severe, headaches swollen legs, fatigue and decreased fetal movement. She was promptly transferred to the University Medical Center at Stony Brook, in Stony Brook, New York. She was a lupus patient and had a history of preeclampsia with a prior pregnancy. The doctors at the University Medical Center at Stony Brook, were concerned because she was only at 24 weeks gestation. They administered some steroids in the hope that they could encourage better lung development in the infant in the event that the infant would have to be delivered prematurely.

In 1998, the administration of steroids to encourage lung development was a standard practice. A New York Injury Lawyer said the steroids were delivered in two doses normally. The first dose would be delivered and then the doctors would wait 12 hours before delivering the second dose. Following the second dose, another 12 hours would go by before they would deliver the infant. In the case of this particular woman, the infant was showing signs of fetal distress and lowered heart rate. The doctors made several attempts to determine the exact cause of the issues that the woman and child were suffering before taking any action. The doctor waited one hour in particular so that the father of the child could arrive at the hospital. At this point, the lives of both the mother and the severely premature infant were at risk. Nine hours after arriving at the University Medical Center at Stony Brook, the child was delivered by caesarian section. The infant showed relatively good Apgar scores at the time of delivery. However, within the first few years of birth, he suffered from obvious signs of fetal hypoxia and other issues related to the delay in his delivery.

The hospital maintained that the child was so severely premature, that any issues that he developed were tempered by the fact that they are obvious expectations of a premature infant. They state that the parents were advised that these were possible risks to early delivery at the time that the delivery was done. A Staten Island Personal Injury Lawyer said they also advise that any delays were necessary and within proper treatment guidelines based on the situation. They stated that the fact that the woman suffered from other medical conditions had at first blurred the fact that she was preeclampsic a second time. They contend that most of the delay was an attempt to give the infant as much of the benefit of the steroid as possible, to allow a neonatal specialist to be called in, and to ensure that a team of neonatal intensive care specialists were standing by to help the infant when he was born.

The parents maintain that the unnecessary delay in delivering the infant placed him at more risk. That, these actions in fact, had he been delivered immediately, he would not have suffered from the lack of oxygen to his brain that caused him to have developmental issues. A Queens Personal Injury Lawyer said the doctors maintained that any infant who is born as premature and tiny as he was, he weighed only one pound at birth, is expected to experience many developmental issues in life. The parents contend that the doctors were negligent in failing to recognize that the mother was suffering from preeclampsia immediately and treating her for it by delivering the child without delay.

Both sides had presented motions for summary judgment in their favor, the court determined that the questions at hand in this case could only be determined by a jury. The motions for summary judgment were denied and the case was sent forward to trial.

Stephen Bilkis & Associates has New York personal injury attorneys who are available to represent you from convenient offices throughout New York and Metropolitan area, whether your case involves medical malpractice, personal injury or slip and fall. There is no need for your child to suffer from an injury that could have been prevented. Our New York birth injury lawyers can help you through difficult situations.

July 11, 2012

Court Hears Medical Malpractice Action

This case is being heard in the Bronx County Supreme Court in the state of New York. The case involves the deceased infant, Kayla Kesse Madison Charles. The plaintiffs are the administrix of the estate of the deceased infant, Dionne Charles and Dionne Charles on her own. The defendants in the case are Doctor Chaisurat Suvannavejh, Doctor, Fergal D. Malone, Doctor Michael J. Orfino, Elizabeth Riley, R.N., Susan Zucchero, R.N., and the Lawrence Hospital Center.

Case Background

The plaintiff on behalf of herself and her deceased daughter is suing the defendants for medical malpractice that resulted in the wrongful death of her daughter. A New York Injury Lawyer http://www.newyorkcriminallawyer24-7.com/lawyer-attorney-1834428.htmlsaid the defendants of the case, Suvannavejh, Zucchero, and the Lawrence Hospital Center all separately move for a summary judgment that dismissed the claims made by the mother in regard to emotional distress, and loss of comfort and affection. Additionally, the defendant Suvannavejh seeks for the claim made by the mother in regard to lost support, services, and protection be dismissed.

Plaintiff’s Argument

The plaintiff opposes the motions made by the defendant. The plaintiff states that her daughter was stillborn because of medical malpractice of the defendants. She argues that as the mother of the stillborn infant she has the right to recover for the emotional distress that was caused by the death of her infant.

The plaintiff also is claiming loss of services or society on behalf of her child. However, this claim is not acceptable as the child did not live long enough to be capable of providing any services.

The plaintiff is moving to amend her complaints and bill of particulars for the case as the new proposed claims have merit and the amendments that are being proposed do not unfairly prejudiced the defendants. The plaintiff states that the records of her infant daughter raise a factual issue in the case as it is not clear whether or not her daughter was stillborn or if she had a heartbeat and took breaths before her death.

Defendant’s Argument

The defendants argue that the plaintiff by delaying this cause of action is cause for prejudice against them. However, the defendants fail to indicate the type of prejudice that has been caused by the delay.

The defendants have also obtained an official transcript of the infant’s birth from the State Department of Health. However, this document is not verified by the plaintiff or any one else that was present at the time of the birth.

Court Discussion and Decision

The court is partially granting the motion for summary judgment for the defendants. Additionally, Suffolk County Personal Injury Lawyer said the court is granting the plaintiff the right to amend her pleas as specified. The plaintiff may amend her bill of particulars and complaint on the condition that the note at issue is vacated and provides the defendants the opportunity to move again for the partial summary judgment against the claim for emotional distress.

We do agree that the excuse for waiting so long to serve the motion for amendment by the plaintiff is lacking. However, we do not feel that there is any prejudice against the defendants in regard to the changes being requested. A Staten Island Personal Injury Lawyer said the court is denying the motions for summary judgment made by the defendant as it is felt that there are triable issues in this case.

Medical malpractice suits can be time consuming and difficult. If you feel that you have received inadequate care from your physician contact the law offices of Stephen Bilkis & Associates. We offer free consultations to discuss the relevant facts of your case and help you determine what your next steps should be. Our offices are located throughout the city of New York.

July 9, 2012

Respondents Claim Petitioner in Violation of Public Health Laws

The petitioner for this case is Lena Bagels, Inc. The respondent of the case is The City of New York and the New York City Department of Consumer Affairs. The case is being heard in the New York Supreme Court. The judge overseeing the case is Philip G. Minardo.

Case

Lena Bagels operates a corporation and the main place where business occurs is located on Richmond Avenue in Staten Island, New York. The company is authorized by the state to transact business. Lena Bagels was incorporated in 2001. A New York Injury Lawyer said the petitioner, Lena Bagels has been found guilty of selling tobacco products to a minor. The petitioner states that the fine of $3500 is void and requests the renewal of their application for their tobacco license. The petitioner is seeking to annul the recommendation made by Judge Mitchell B. Nisonoff.

Case History

The previous court that heard this particular case recommended that the petitioner be fined $3500 and assigned a point to their tobacco products registration card. The petitioner already had two points on their card and now has three points. For this reason the license to sell tobacco products was suspended for six months. This suspension included the sale of lottery tickets.

When this action occurred Lena Bagels held a valid registration for the sale of cigarettes and tobacco. At the initial case, Hany Nasralla, who is an inspector for the Department of Consumer Affairs in New York City, stated that Suzanne Ford, an employee of Lena Bagels, sold cigarettes to a person who was a minor. No ID was requested from the individual who purchased the cigarettes.

Petitioner Argument

The petitioner states that the particular transaction between Suzanne Ford and the minor is questionable as they believe the company was tricked into selling tobacco to a minor who was undercover. A Suffolk County Personal Injury Lawyer said the petitioner also states that Ford had been trained and had taken a class through the New York State Department of Health as required for the certificate in sales training for tobacco.

Ford testified that she sold Parliament Lights to a person who stated he was over 18. She admits that she did not ask for ID because the individual appeared to be over the age of 27 as he was tall, with a full beard, and a very deep voice.

The petitioner states that the individual was told by the Department of Consumer Affairs to misrepresent how old he was. The defense for the petitioner is based on the appearance of the minor as well as his misrepresentation of his age. Additionally, the birth certificate was not introduced into evidence for the case.

Two witnesses who were in the store at the time of the transaction both state that the individual in question seemed to be over the age of 25.

Respondents Argument

The respondents state that the petitioner was in violation of the Public Health Law 1399 and the New York City Administrative Code 17-620. A Staten Island Personal Injury Lawyer said the respondents state that the determination in the case was reasonable, rational, and lawful in all respects and should be upheld.

Court Decision

The Court finds that the previous judgment in regard to the suspension and fine were not capricious or arbitrary and were imposed within the framework of the law. The issue involving substantial evidence will be transferred to the Appellate Division for further review.

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July 7, 2012

Defendant Seeks to Amend Cause of Action in Malpractice Case

This case is being heard in the Queens County Supreme Court. The plaintiff of the case is the infant Jasan Stuart. He is represented by his natural guardian and mother, Ann Ashmeade. The defendant in the case is the New York City Health and Hospitals Corporation.

Case at Hand

This is a motion for an order to allow the plaintiff to amend the complaint as it was filed by adding Ann Ashmeade, the mother, as an individual plaintiff in the case. A cause of action is requested based on the emotional distress Ashmeade suffered as a result of her son’s birth on the 8th of August in 1996, while in an impaired state because of the medical malpractice and negligence of the defendants.

Case Background

The case started from the care that the plaintiff received during the delivery and birth of her son, the plaintiff while at the Queens Hospital Center on the 8th of August in 1996. The plaintiff was born with several impairments including cerebral palsy and brain damage. The instant action was started in March of 2000 and claimed that the injuries were caused by the malpractice of the defendants’. A New York Injury Lawyer said the original case had one cause of action which sought recover for the pain and suffering of the infant and the lack of informed consent.

In cases in 2004, the Supreme Court decided that even without physical injury, impairing a child is a violation of the care that is owed to the mother and entitles her to damages for emotional harm. The plaintiff is now seeking to add a cause of action based on this ruling. The defendant opposes.

Plaintiff Argument

The plaintiff argues that she could not have brought forth this motion any sooner as the amended cause of action statute was only recently created. She states that requesting this amendment is appropriate. The plaintiff claims that the new cause of action has merit and is sufficient in the matter of the law.

Defendant Argument

The defendant argues that the cause of action is time-barred and the rulings from the Supreme Court case cannot be applied retroactively. A Queens Personal Injury Lawyer said the defendants also argue that there is no merit to this proposed cause of action case.

Case Discussion

The court finds that the causes of action are not barred by time as the rule allows relation back to the date of service or to the filing of the original complaint. All of the complaints in this case come from the same conduct and for this reason the statute of limitations does not apply. Since the cause of action was only just created, the plaintiff had no way to make a timely service for the notice of claim.

The question for this court is whether or not the new law can be applied retroactively. A Nassau County Personal Injury Lawyer said when reviewing the new law and comparing it to the issues at hand in regard to this case, the court finds that retroactive application of the law are appropriate. For these reasons, the court finds in favor of the plaintiff and the motion to amend the original complaint and add the mother to the case as an individual plaintiff is allowed.

If you are in any type of medical legal matter, contact Stephen Bilkis & Associates. Our team of expert lawyers can help you determine what your best course of legal action will be. We have offices located conveniently throughout the metropolitan area of Manhattan. You may get in touch with us at any time to set up a free consultation in order to discuss your case.

July 5, 2012

Court Discusses Mental Hygiene Law

This is a case of appeal. The appellant of the case is Miguel M. The respondent in the case is Charles Barron. The case is being heard in the Second Department of the New York Supreme Court, Appellate Division.

Court Opinion

A New York Injury Lawyer said this is an appeal case where the court is asked to determine if a physician can obtain medical records for a patient without the authorization of the individual or a court order in regard to the Health Insurance Portability and Accountability Act or HIPAA in specific situations.

Case History

The petitioner of the case, Charles Barron, M.D., works for the Elmhurst Hospital Center. He is the Director for the Department of Psychiatry. He began this case pursuant to Kendra’s Law that authorizes an AOT of Miguel M., the appellant. To support his case, Dr. Barron offered the testimony from Dr. Garza. Dr. Garza is the director of the AOT department at Elmhurst Hospital Center. Dr. Garza testifies that as part of his duties as the director of AOT for Elmhurst, he evaluates and investigates referrals for the program. He goes on to explain that when evaluating the records of the appellant, he diagnosed Miguel with schizoaffective disorder.

The court received the clinical records as evidence in Dr. Barron’s case. The counsel then asked how Dr. Garza gained possession of these records. Dr. Garza testified that as part of the process of investigation, through the AOT, his office obtains records from health care facilities that have treated people under this type of investigation. He states that the records were received by request for Miguel and the hospitalizations that were in question.

Dr. Garza states that the records did contain the full name of the appellant along with other personal information including his date of birth, home address, his social security number, and his Medicaid number. A Long Island Criminal Lawyer said he states that the personnel from each of the hospitals that released the records verified that they were authentic.

It was at this point that the counsel for the appellant made an oral plea to preclude the admission of these clinical records as evidence and the testimony of Dr. Garza as the records were received in violation of the regulations that are set by HIPAA and that authorization was not made by Miguel for these records to be used. A Brooklyn Personal Injury Lawyer said the court allowed the counsel of the appellant to examine Dr. Garza and he then stated that he was not employed by either of the hospitals as the medical records director and that he did not obtain authorization to obtain the clinical records and he had not obtained a court order to allow him access to the clinical records.

Dr. Barron states that the clinical records are admissible through CPLR 4518. The defense stated that they were not arguing that the records were inadmissible under CPLR 4518, but rather challenging the way the documents were obtained. Dr. Barron argues that through the Mental Hygiene Law the records were legally obtained.

Case Discussion and Conclusion

Our conclusion is that an AOT investigation qualifies as a public health intervention or a public health investigation. While Kendra’s Law is designed to protect people who have a mental illness, it also seeks to protect the health and safety of the public by reducing the risk of violent threats posed by patients that are mentally ill.

We find that the case of Miguel M. qualifies as a public health investigation and for this reason find that the disclosure of his medical records to Dr. Gaza was allowed under the guidelines of HIPAA. We affirm the original verdict of the case.

For those in need of legal advice, whether it is for medical malpractice, a car accident or bike accident, contact Stephen Bilkis & Associates to set up a free consultation. Our offices are located conveniently throughout the metropolitan area of Manhattan.

July 4, 2012

Claimant is Requesting Notice of Late Claim

In this case the claimant is Timothy C. Clark and the defendant is the Roswell Park Cancer Institute Corporation. The claimant is represented by Micheal R. Drumm from Brown, Chiari, LLP. The defendant is being represented by Michael E. Hudson J. from the law office of Gibson, McAskill & Crosby LLP. The case is being heard in the Court of Claims of New York.

Case History

A New York Injury Lawyer said the Court has reviewed several documents pertaining to this case. These include the Notice of Motion that is dated the 20th of July, 2010 and filed the 23rd of July, 2010. The attorney’s affidavit from Michael R. Drumm, with a notice of claim and attached exhibits, the affidavit of Timothy C. Clark and the affidavit of Fred Berkowitz M.D., and the affidavit in opposition for the motion for leave to file a late notice of claim for Jennifer L. Noah.

Case Facts

The claimant is making a medical malpractice claim in regard to the care he received from the 10th of March in 2009 through the 28th of April 2009 at the Roswell Park Cancer Institute Corporations. The claimant, Mr. Clark, was admitted to Roswell Park on the 10th of March, 2009, for surgery to remove a cancerous mass located on the lower part of his colon.

The hospital records along with the affidavit from Michael R. Drumm, show that Clark developed several symptoms, including a fever, on the 14th and 15th of March. CAT scan was conducted on the 15th to assess the site of the surgery.

The CAT scan showed an anastomotic leak at the site of the surgery and a surgery to address this leak was scheduled for the 16th. Clark claims that he underwent additional surgeries at this time as well, including a colostomy. He was held in the hospital until the 28th of April. He was then sent to Buffalo General Hospital. At Buffalo General Hospital he was in rehabilitation treatment until the 8th of May. After he was released from Buffalo General Hospital, he had outpatient treatment done at Roswell Park through the end of June, 2009.

The claimant is now requesting a late notice of claim pursuant of General Municipal Law 50. The defendant is opposing this motion for several reasons. First, a New York City Personal Injury Lawyer said the defendants state the claimant has not demonstrated a reasonable excuse for this late notice claim and they also state there is lack of knowledge of the facts of the case.

Case Decision

During his written submissions, Mr. Clark did not address the prejudice issue. However, a Staten Island Personal Injury Lawyer says he states that he believed it was the burden of the defendants to address this issue. It is found that Roswell Park had access to the facts of the case based on their own records and therefore it was unnecessary for the claimant to address this issue.

In regard to the late notice claim, the Court finds in favor of the claimant. The claimant has issued enough evidence to show that the reason for the delay in making the claim is because he was too ill to do so. For this reason, the court finds in favor of the claimant in this case.

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July 3, 2012

Court Contends Notice of Claim Filed Too Late

This is a case for appeal being heard in the Second Department of the Supreme Court Appellate Division. The appellant for the case is Carman Grellet. The respondents for the case are the City of New York et al. The appellant is represented by Ellen M. Saunders. The respondents are represented by June A. Witterschein and Marvin Kwartler. The case is being heard before Lazer J.P., Bracken, Kooper JJ., and Niehoff.

Case

This is a medical malpractice action and the issue at hand before this court is whether or not the service of notice for the claim of the alleged malpractice suit was timely. The service of notice occurred ten years after the alleged malpractice took place.

Case Background

The infant whose injuries are in question was born at Elmhurst General Hospital on the third of July in 1970. The hospital was owned by the City of New York at the time and operated by the New York City Health and Hospitals Corporation.

The plaintiff states that the neurological injuries suffered by the infant were a result of negligent care and treatment on the day of delivery. However, the plaintiff did not deliver a notice of claim until the 8th of February, 1980, ten years after the child was delivered. The service of the summons and the complaint was not delivered until the sixth of August in 1982.

A New York Injury Lawyer said the defendants provided an answer to the notice of claim stating that the claim had not been commenced in a timely fashion and was therefore barred by the statute of limitations. The defendants move for dismissal of the case based on the fact that the plaintiff failed to file notice of claim within a reasonable amount of time. The plaintiff opposed the motion for dismissal.

In a memorandum, the Special Term held that the notice of claim made by the plaintiff was not applied in a timely manner and therefore ruled in favor of the defendants for the case to be dismissed.

Case Discussion

There is no argument to the fact that the allegations made by the plaintiff refer to the time the infant was born in 1970. The provisions provided under the General Municipal Law section 50 states that the plaintiff is required to serve notice of claim to the defendant within 90 days of this date. It is clear that the notice of complaint made by the plaintiff almost ten years after the fact is untimely. A Queens Personal Injury Lawyer said the action must be dismissed for this reason unless the plaintiff establishes that the time for serving the notice was tolled either by virtue of continuous treatment or reason of infancy.

We have determined that the plaintiff’s time to serve the notice of claim was not tolled by infancy in this particular case. The other option is that the untimely fashion in which the claim was made was because of the continuous medical treatment in regard to the same original complaint or condition.

Court Decision

After reviewing the facts of the case, the court affirms the original order from the Supreme Court. It is found that the notice of claim that was made by the plaintiff was clearly untimely as it occurred nearly a decade after the fact. A Staten Island Personal Injury Lawyer said there is no evidence to support the continuous medical treatment clause of the statute or the infant clause.

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July 2, 2012

Plaintiffs File Notice of Claim Too Late

This case involves the infant Zachary Velazquez, who is represented by his natural guardian and mother, Evelyn Segarra. They are the respondents of the case. The appellant in the case is the Jacobi Medical Center part of the City of New York Health and Hospitals Corporation. The case is being heard in the First Department of the New York Supreme Court, Appellate Division.

Previous Case

The original case was heard in the Supreme Court located in Bronx County. The judge in the case was Douglas E. McKeon, J. Judge McKeon granted the plaintiff’s motion for order that deemed their notice of claim was timely served, was reversed unanimously, and the facts were within the law and were discreet. The motion by the defendants was denied.

Case History

This case involves Zachary Velazquez, who was born weighing 1 lb 9 oz in March of 1998 at the Jacobi Medical Center. Zachary was in the neonatal intensive care unit at the medical center until the sixth of July in 1998. A New York Injury Lawyer said when Zachary was four he had been diagnosed with asthma and spastic cerebral palsy.

In October of 2006, a notice of claim was issued to the defendant notifying them of claims of medical malpractice, negligence, and failure to obtain informed consent for the neonatal care that was given at the time of Zachary’s birth. The respondents claim that the injury sustained by their son was a direct result from birth trauma.

An instant motion dated the 30th of August, 2007, seeks an order that states the notice of claim was made in a timely fashion or grants the leave to serve a late notice of claim.

Case Discussion

There are several factors that must be considered when determining whether a notice of claim is deemed timely. A Queens Personal Injury Lawyer said the key factor is whether or not the movants have provided a reasonable excuse for not serving the notice of claim within the time frame that is provided. Additionally, it must be shown whether or not the municipality received adequate notice of the essential facts in regard to the case within 90 days after the claim was made or within a reasonable amount of time. However, the presence or absence of either of these factors is not determinative in the case. This means that not providing a reasonable excuse is not fatal to the application.

The medical records of this case are required in order to properly assess the treatment that was given by the defendant. This record does not demonstrate enough evidence for the alleged malpractice suit. The complications of a premature birth do not alert the defendant that the infant would develop cerebral palsy years later. A Nassau County Personal Injury Lawyer said there is no evidence to show that any injury was inflicted on the infant during his care at the medical center. For this reason, not filing a timely notice has deprived the defendant of being able to conduct an investigation into the matter.

There are no excuses provided by the plaintiffs as to why they waited eight and a half years to make the claim. The plaintiffs have also not provided a reason for the additional year delay for seeking the file of late notice.

Court Decision

The Court finds that there was no evidence that the defendant should have been alerted about the malpractice claim and there was no reason for the considerable delay. The Court rules that the Supreme Court acted correctly in the previous case.

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July 1, 2012

Court Decides if Parent Exercised Impaired Judgment

The respondent for the case is Ivelisse T. This case concerns the alleged abuse and neglect of two children under the age of eighteen, Rosaly S. Marcos S, and Wesley R. The case is being heard in the Kings County Family Court. Daniel Fraidstern, Esq., is the Special Assistant Corporation Counsel for the Administration of Children’s Services. The attorney for the respondent mother is Michael S. Somma Jr. The Attorney for the children is Fred Allen Wertheimer.

Case Background

The respondent in the case is the mother of Wesley R., Marcos S., and Rosaly S. Before this case the children all lived in Brooklyn with the respondent and Christian A., her husband.

Wesley R. was born and resided in the Dominic Republic with his paternal grandmother and aunt when his mother moved to the United States of America when Wesley was just a year old. He later moved to the states and went to live with the respondent when he was 12.

A New York Personal Injury Lawyer said after the petition was recorded, Wesley has been in the care of Mercy First. Wesley’s father still lives in the Dominican Republic. His two half siblings, Rosaly and Marcos, have been released temporarily to live with their father and his spouse in New Jersey.

Case Proceedings

The case begins in early 2008 when abuse petitions were filed against the respondent. The petitions state that the respondent allowed Wesley to sleep with her in bed, kiss her, put his finger in both her vagina and anus, and have intercourse with her. The mother states that she did not prevent this from happening because she wanted to see how far he would go and could not believe that he was doing this to her.

When the petitions were recorded the NYCCS was granted approval to remove all three of the children from the home. Wesley was placed for evaluation in a diagnostic residential center.

The respondent requested that Rosaly and Marcos be returned. After several dates in court, Rosaly and Marcos were temporarily released to the respondent with the stipulation that she cooperates with a mental health evaluation, parenting skills classes, and individual counseling. She was also under supervision from the NYCCS.

Wesley was placed in a residential treatment center based on the recommendations from the Mercy First Treatment team. A Queens Personal Injury Lawyer said the respondent has had no contact with Wesley since filing the petition. Wesley does not wish to have any type of contact with the respondent. He has also had no contact with his step father or half siblings. He has contacted his aunt and uncle who live in Florida and have visited him several times in New York.

Case Arguments

The NYCCS and Wesley’s Attorney are seeking a sexual abuse charge against the mother. The NYCCS is also seeking a charge of derivative abuse of Rosaly and Marcos. They state that the respondent’s actions with Wesley show impaired judgment as a parent.

The respondent seeks a dismissal of the petitions stating that she was raped by her son. She states she did not resist because she was in shock.

Court Orders

According to a Suffolk County Personal Injury Lawyer, after reviewing the case the court found the respondent guilty of sexual abuse against her son Wesley. The court also charges the respondent with derivative abuse against Marcos and Rosaly.

Legal battles where children are involved can be very intense and for this reason it is important to have a quality lawyer on your side. If you are in need of legal advice, whether it is for medical malpractice, a construction accident or a dog bite, contact Stephen Bilkis & Associates to set up a free consultation to discuss your case. We have offices located throughout the city of New York for your convenience.




June 29, 2012

Case Involves Medical Indemnity Fund for Medical Malpractice Case

Birth Injury 126

The plaintiffs of this particular case are Miles Mendez, who is an infant, who is represented by his natural guardian and mother, Melina Mendez, and Melina Mendez individually. The defendant of the case is the New York and Presbyterian Hospital.

Case Facts

The plaintiffs in the case claim that the medical staff at the hospital where their son, Miles Mendez, was born failed to deliver him by cesarean even though the fetal monitors suggested a hypoxic event. Additionally, a New York Injury Lawyer said the plaintiffs claim that the while attempting to deliver Miles vaginally, they used forceps unsuccessfully and fractured the right temple of the skull, which caused a bleed in the temporal area of the infant’s brain. While the plaintiffs do assert that the infant was ultimately delivered through a cesarean section, but not before the infant suffered a traumatic injury and a hypoxic event.

Dr. Ingrid Taff, a pediatric neurologist from Presbyterian Hospital issued a report that states Miles Mendez is sixteen months old and has microcephaly, Cerebal Palsy, and a global developmental delay. Both parties agree that Miles Mendez is severely damaged, unemployable, and will require custodial or home assistance for his entire life.

Case Discussion

The previous medical malpractice action was awarded to Miles Mendez in the amount of $5,500,000. The infant’s order of compromise was recently finished. This case is to determine the application of the statute referred to as the New York Medical Indemnity Fund and how the settlement will be allocated.

This particular case is considered a “baby case” as it involves the medical personnel in charge of delivering an infant. The parties in this case agree that this particular case is subject to provisions that were set by the Medical Indemnity Fund. This fund was enacted in order to lower the costs of premiums for insurance coverage in medical malpractice suits.

In order for this goal to be achieved, the defendants are relieved from having to pay the medical expenses in a malpractice suit in specific types of obstetrical actions. The statute mandates that the plaintiffs must be part of a program that will pay for health expenses as they occur. Additionally, the plaintiffs must first use their private insurance before using the Fund.

The Fund will pay for any future hospital, medical, dental, nursing, surgical, custodial, rehabilitation, home modifications, vehicle modifications, assistive technology, and all medications that are obligatory to meet the healthcare needs of the plaintiff that qualifies. A Westcheter County Personal Injury Lawyer said any action that is covered by the Fund, the courts must amend certain settlement agreements to comply with the terms of the Statute.

A Suffolk County Personal Injury Lawyer said tht in this particular case the plaintiffs were awarded a sum of $5,500,000 and the attorney fees are based on this amount. This comes to $700,000 for the lawyers of the case. In Fund cases the defendant will pay a part of the legal fees in the case and damages that are not medical expenses will be paid in a lump sum in cash.

For this case the parties have both agreed to the settlement being divided 50/50. This means that 50% for non fund damages and 50% for fund damages. This has been approved by the court.

Anyone that finds that they need legal advice, contact the law offices of Stephen Bilkis & Associates. Our team of lawyers is experts in every area of the law. You will find our offices located throughout the city of New York. You may contact us at any time to set up an appointment for a free consultation.

June 28, 2012

Court Discusses Release of Confidential Medical Records

Queens Birth Injury 4

This is a matter that involves, Stephen F. who is a child who is under the age of eighteen. It is alleged that Stephen has been neglected by the respondents, Carol/S.F. et al. The case is being heard in the Queens County Family Court. The law guardian of Stephen is Jerry Gruen. The petitioner in the case is represented by Frank J. Carabetta. The respondent is represented by Ulrich Fritsche. The Judge for the case is Mara T. Thorpe.

Case at Hand

This is a case of neglect that was started based on article 10 of the Family Court Act. The Beth Israel Medical Center is moving to end a subpoena that was served to the petitioner for all of the records in regard to their contact with either or both of the respondents in the case. The Medical Center states that in the absence of a court order being issued for justifiable cause, the disclosure of any of their records is prohibited under the U.S.C. section 1175.

Case Discussion

A Staten Island Personal Injury Lawyer said the U.S.C. in relevance to this matter states that the records of identity, prognosis, diagnosis, and treatment of any patient shall be kept confidential and disclosed only under the circumstances provided by the subsection of this act.

The subsection provides that records can be disclosed if it is authorized by direct order from the court. A New York Injury Lawyer said the court must have competent jurisdiction in the matter and show an application of good cause for the release of the records. Additionally, the section states that in order to show good cause the court has to weigh the public interest as well as the need for disclosure against possible injury to the patient and the physician patient relationship and the services provided.

The injury to the patient refers to disclosing records that may cause the patient to fail to participate in treatment as they fear that their records may be disclosed and that confidentiality is not available to them at the physician’s office.

The other issue that comes up in regard to this clause is the public interest to protect children from abuse or injury and to safeguard children’s mental, emotional, and physical well being. This is represented in several cases where medical records were disposed in relationship to alleged abuse or neglect.

A Queens Personal Injury Lawyer said that other courts that have been called to apply the federal statute in a child protective case have determined that where the information is material and the disclosure of the medical documents is necessary in order to establish the allegation of abuse or neglect, the public interest to protect the child’s well being outweighs the physician-patient relationship and treatment services.

Court Ruling

This court agrees with the conclusion that in the case of a child’s well being if necessary the medical records should be disclosed.

In this particular case, the confidentiality of a drug treatment program requires the court to scrutinize how absolutely necessary the medical records in regard to the safety of the child. In the four allegations of neglect of this case, the records are most relevant to the allegation that the mother is unable to care for her child adequately based on her misuse of drugs.

The court hereby grants the request to squash the subpoena as there is not any record stating that the child is neglected by the father.

Medical records should be kept confidential and if you feel that your rights have been violated in any way contact the offices of Stephen Bilkis & Associates. Whether you have a medical malpractice issue, have been in a car accident or construction accident, our team of lawyers will be happy to discuss your case with you and determine what steps you should take. You can contact one of our New York City offices to set up your free consultation.

June 27, 2012

Plaintiff Moves for a Frye Hearing in Medical Malpractice Action

This case is being heard in the Queens County Supreme Court in the state of New York. The plaintiff of the case is Judy Fernandez. The defendant in the case is the St. John’s Queens Hospital, et al. A New York Injury Lawyer said the judge overseeing the case is the honorable James P. Dollard.

Case

This is an action to recover damages for medical malpractice allegedly performed by the defendant Metropolitan Child Neurology, P.C. and Doctor Steven G. Pavlakis. The move is for a Frye versus United States hearing or to dismiss the action. Defendant, Dr. Raul Miquez makes a cross motion for the same relief. The plaintiffs have issued a cross motion for a Frye hearing in regard to the testimony of Dr. Robert A. Zimmerman, expert witness for the defendant as well as the testimony of Dr. Alfred J. Spiro. As an alternative the plaintiffs preclude that the testimony of these two doctors is unsupported by published articles, and lacks prevailing medical and scientific thought.

Plaintiff Argument

Judy Fernandez, the infant plaintiff was born prematurely on the 29th of April, 1991 at St. John’s Hospital. She remained at the hospital until the 10th of July, 1991. Dr. Pavlakis, the defendant, was placed in charge of her care after her release from the hospital. He is a pediatric neurologist. A Manhattan Personal Injury Lawyer said she was also placed under the care of the pediatrician, Dr. Miquez. Dr. Pavlakis diagnosed the plaintiff with obstructive hydrocephalus and he placed a shunt in order to remove the fluid from the brain. Films from the hospital show that there was damage that affected the periventricular white matter of the infant’s brain. There is argument over the extent of the damage and whether the hydrocephalus could or did cause any additional damage. The infant was transferred to the New York Foundling Hospital. She is still at the hospital at this time. The plaintiff suffers from seizures, is profoundly impaired with spastic quadriplegia, and suffers from severe mental retardation.

The expert witness for the plaintiff states that both of the defendants in the case did not provide proper care for the infant. The ultimate issue for this particular case is whether or not the sole cause of the infants present disability was caused by the hydrocephalus.

Defendants Argument

The defendants make the argument is that the infant would be in the same condition even if they had diagnosed and treated the hydrocephalus in a timely manner. They state that by not treating her in a timely fashion is not an act of malpractice for this reason.

Case Discussion and Verdict

Experts in the case state that there is no scientific evidence to support the theory that the plaintiff would be in the same condition if the hydrocephalus was treated in a timely matter. However, there is evidence to support the fact that the hydrocephalus could have caused her current ailments.

After reviewing the case and studying the facts at hand, the court finds in favor of the plaintiff. A Nassau County Personal Injury Lawyer said a Frye trial will not be granted and the case will not be dismissed. Additionally, the defendants will not be allowed to submit evidence at the trial in regard to every child that has damage to the white or grey matter of the brain will suffer from the type of injuries that the infant has and that a child cannot suffer additional damage if the hydrocephalus is left untreated.

Medical malpractice suits can become extremely difficult. For this reason, it is important to hire a lawyer to help guide you. Contact Stephen Bilkis & Associates and allow one of our expert litigators help you with your legal matters. You can set up a time to meet and discuss your case at any of our offices located in New York City.


June 26, 2012

Court Hears Allegations of Neglect

Queens Birth Injury 5

This is a case being heard in the Kings County Family Court. The case involves the children, Justin S., Brandon S., and Shyrelle F., all under the age of eighteen. A New York Injury Lawyer said the case is alleging neglect of the children by the respondent, Wendell S. The children, Brandon and Justin are represented by Michael A. Fiecter. Shyrelle is represented by attorney Kim Ostheimer. Christine Waer, Esq. who is the Special Assistant for the Corporation Counsel Administration of Children’s Services and is seeking charges of neglect. The respondent father is represented by Rhonda Weir, Esq. The non respondent mother is represented by Kim Ostheimer.

Case at Hand

After the initial fact finding case, the attorneys for the children have filed written summations. Additionally, the attorney for Brandon and Justin has moved for an order that dismisses the derivative neglect allegations of the case. A Brooklyn Personal Injury Lawyer said the Administration of Children’s Services is seeking a finding of neglect against the respondent in the case of Shyrelle and findings of derivative neglect of his two other children, Brandon and Justin. The respondent opposes both allegations and is seeking dismissal of both petitions. Brandon and Justin’s attorney seeks for the derivative neglect charges to be dismissed. The attorney for Shyrelle supports findings of neglect for her client.

Case Facts

The non respondent mother and the respondent father are married and have two children together, Justin and Brandon. The non respondent mother also has a daughter, Shyrelle. The father of Shyrelle does not live in the United States and the mother has full custody of the daughter.

Before this hearing, the respondent and the mother lived together with the three children in the city of Brooklyn. The respondent does not dispute the fact that he is legally responsible for the care of Shyrelle.

A petition was filed on behalf of Shyrelle by the Administration for Children’s Services stating that the respondent committed acts that constituted neglect. More specifically, it is stated that the respondent touched his step daughter inappropriately and also had conversations with her about sex that were uncomfortable. Bronx Personal Injury Lawyer said there is no allegation made in regard to sexual abuse and there is no allegation that the respondents actions were for the purpose of gratification sexually. The petitions allege that as a result of the actions of the respondent, the children are derivatively neglected.

When the petitions were filed the children were released to their mother under supervision from the Administration for Children’s Services. A protection order was issued for the children against the respondent, directing him to stay away from the children except for visitations with his sons that were supervised.

Court Decision

After reviewing the facts of the case and the credibility of the witnesses involved, the court finds that the testimony given by Shyrelle is sufficiently credible to find a support for neglect against the respondent. While there were some inconsistencies in her testimony, the court feels that her testimony is credible based on her demeanor while testifying. Additionally, the court found the respondents testimony in regard to the inappropriate touching lacking in credibility.

The court finds in favor of the child Shyrelle and grants the charges of neglect. In regard to the charges of derivative neglect for the two boys the court finds that the evidence is insufficient to establish this and dismisses the charges.

If you are in any type of legal battle, call Stephen Bilkis & Associates for help. Our lawyers are experts in every field of the law and can help you determine your best possible solution, whether you have a medical malpractice claim or have been injured in a car accident. We have offices located throughout the city of New York for your convenience. You may call at any time to set up your free consultation.


June 25, 2012

Court Confirms Improper Care of Infant Defendant

Queens Birth Injury 15

This case is being heard in the Special Term of the Queens County Supreme Court. The original plaintiffs of the case are John Joseph Shea III, who is an infant under 14 years old, represented by his guardian John Joseph Shea II and John Joseph Shea II individually. The defendants are Otto Gitlin, d/b/a Queens Memorial Hospital, Jane Stidolph (first name is fictitious), and Dr. John Uvetich. Stidolph and Dr. Uvetich are third party plaintiffs versus the third party defendants Dr. Samuel Weiner and Dr. S.J. Rosoff.

Third Party Case

The third party defendants, Dr. Weiner and Dr. Rosoff are seeking dismissal of the third party grievance based on insufficiency in the case.

Primary Cause of Action

The primary complaint in this case is the first cause of action brought against defendant Gitlin. A New York Injury Lawyer said this action states that the infant plaintiff was born at a privately owned hospital that is controlled by Gitlin. The infant was full and normally developed at birth. After the infant was delivered, defendant Stidolph took the infant into her care. Stidolph is not registered as a nurse and while the infant was in her care she carelessly treated him and caused him to be painfully, severely, mutilated, and disfigured and permanently injured (medical malpractice).

The plaintiff also states that Dr. Uvetich was employed by defendant Gitlin and Uvetich was not licensed for practice of medicine in New York. The plaintiffs state that Dr. Uvetich tried to conceal or mend the injuries inflicted on the infant, without consulting the infant’s parents. Additionally, the plaintiffs state that he was negligent in his care for the infant and caused injury to the baby. Gitlin is negligent in the case by failing to provide proper regulations in regard to the care of infants after they are delivered and for failing to hire personnel that are competent.

Second Cause of Action

The second cause of action is brought against defendant Stidolph alleges the previous facts and also alleges that the defendant Stidolph is negligent by taking a position at the hospital that she was aware that she was not qualified for. It is alleged that she did not perform her work with care and that she tried to cover up her wrongful act.

Third Cause of Action

The third cause of action is against defendant Uvetich and realleges the facts stated above. In addition, the plaintiffs allege that the defendant Uvetich is negligent by trying to perform an operation that he was not properly licensed to perform. Additionally, a Queens Personal Injury Lawyer said it is alleged that he failed to properly report the incident to the parents of the baby, and attempted to cover up the injury to the infant child.

Case Discussion and Verdict

The first three actions are all in regard to the infant plaintiff. There is a fourth cause of action made by the infant’s father that allege all of the above and claim of loss of services.

The third party plaintiffs and defendants allege that the two third party defendants are licensed physicians and were hired by the infant’s mother to perform a Caesarean operation. A Suffolk County Personal Injury Lawyer said they were given courtesy privileges at Gitlin’s Hospital. It is affirmed that the infant was born healthy, but alleged that the post birth treatment was not reasonable and at the time the injury to the infant occurred the third party defendants were still responsible for his care.

After reviewing the case the motion for dismissal for the third party defendants is granted.

If you are involved in any type of medical malpractice suit contact Stephen Bilkis & Associates for help. We are happy to discuss your case with you in a free consultation. Our offices are located throughout the metropolitan area of Manhattan.

June 24, 2012

Request for Summary Judgment Denied in Medical Malpractice Case

Birth Injury 136

This is a case involving Hanna Jesionowska Peterson versus Andrew Garber, M.D. The case is being heard in the New York State Supreme Court in New York County. The judge for the case is Sheila Abdus-Salaam.

Case Facts

This is a case of medical malpractice. The plaintiff claims that Andrew Garber, M.D., performed an art amniocentesis improperly and this resulted in the right eye of the infant Cole Peterson being penetrated by a needle. The infant now has a condition called microphthalmia, or small eye, as a result of the injury. He has no vision out of his right eye and has to wear an ocular prosthesis.

Defendants Argument

The defendant is moving for summary judgment in this case. He states that the condition of the infant is not related to the amniocentesis that he performed, but rather is a developmental anomaly. Dr. Steven McCormick was called as a witness for the defendant. He is a pathologist and states that the physicians that treated the infant found no evidence of any ocular injury or ocular rupture.

A New York Injury Lawyer said tht one of the physicians that treated the infant Dr. Millman, documented that the mother of the infant felt that the eye was injured during amniocentesis. Dr. Millman reports that he did not find any evidence to support this type of injury had occurred.

Dr. James Katowitz, gave a second opinion in the case and found that the infant has right microphthalmia. An ACT scan of the infants head revealed right microbulbia with right hypoplastic optic nerve. This is a small right globe with a lens that is enlarged and deformed.

Dr. McCormick states that these are developmental abnormalities that would have happened during the first trimester of the pregnancy. The amniocentesis was not performed until the second trimester. He also states that if the needle had punctured the eye the globe would have ruptured, which is not the case.

Plaintiff’s Argument

The expert witness for the plaintiff argues with the opinion of Dr. McCormick. He states that a needle injury may have caused the malformation of the eye of the infant. He also states that the gestational development of the eye of the infant coincides with the time that the amniocentesis occurred. The plaintiff’s expert also points out that while the microphthalmia of the infant could be a developmental anomaly that occurs with certain syndromes, the infant does not have any of these chromosomal abnormalities or conditions. He states that if this was in fact a developmental anomaly one would expect to see other congenital abnormalities as well. A Suffolk County Personal Injury Lawyer said the expert gives a reasonable degree of medical certainty that the condition that the infant suffers from is likely from the penetration of the needle.

Court Decision

After reviewing the arguments from both sides of the case, the Court has determined that there has not been enough evidence supplied by the defendant to support a summary judgment. A Westchester County Personal Injury Lawyer said that summary judgments may only be granted in cases where there is no evidence that some type of malpractice has occurred. The court schedules a pretrial conference for the eleventh of October.

There are many reasons that a person may be in need of a lawyer. If you have any type of legal question contact the law offices of Stephen Bilkis & Associates. We have a team of expert lawyers who can help you through any type of legal matter. Our offices are located all throughout the metropolitan area of Manhattan. We offer free consultations, so there is no need to delay getting the legal advice that you need.

June 23, 2012

Woman Contends High Risk Pregnancy Wasnt Managed Properly

The plaintiffs in this case are Angel Hunter, who is an infant and represented by his mother, Lisa Aveta, and Lisa Aveta for herself. The defendants in the case are Richmond University Medical Center, Michael Moretti, M.D. and Marino A. Poliseno, D.O. The case is being heard in the Richmond County Supreme Court.

Case Background

Angel, who is an infant in this case, is represented by her mother Aveta. During her deposition, Aveta said that there were diabetes, deafness, brain tumors, and Down’s syndrome, in her family history. A New York Personal Injury Lawyer said she personally has a history of asthma and seizure disorder. She has also had a gynecological surgery. Aveta has been pregnant 14 times and 9 of those times ended in a spontaneous abortion and one ended in neonatal death. Two of her children, including Angel, have seizure disorder. Aveta also has had deliveries that are premature.

Case History

Aveta started receiving obstetrical care for Angel’s delivery on January 18th of 2008. On the 14th of May in 2008, Aveta was admitted to RUMC and Angel was delivered this day. He had complications while at the hospital. He was not discharged until June of 2008.

Aveta alleges that she had a high risk pregnancy and that her pregnancy was not managed properly (medical malpractice). She states that because of this poor management, Angel was injured. She also states that there is injury to her as well because she has to provide special care for Angel and that adds expenses.

Case Discussion

The plaintiff has provided a bill of particulars that shows the defendants did not treat her high risk pregnancy properly. This lack of care caused Angel to be injured, which leads to the derivative claim made by Aveta.

It is clear to the court that the high risk pregnancy of the plaintiff has to be considered with her past medical history. Just as a mother’s exposure to a pharmaceutical agent or chemical while pregnant cannot be removed from the neonate, the mother’s prior health risks and history cannot be denied either. A Queens Personal Injury Lawyer said this history is what defines a higher risk along with the pregnancy at hand. For this reason the court finds that the past medical history of the plaintiff is relevant to the malpractice suit against the defendants. The plaintiff must waive her physician patient privilege in order for the records to be reviewed.

The infant’s medical records are also relevant in this case. Typically, a person is not required to disclose their medical history in a case such as this. While the plaintiff argues that she is only making a derivative based on the cost of her infant’s added expenses, we feel that her records are necessary for discovery in this case as well.

Case Decision

The motion made by Aveta for a protective order for her medical records is denied. She must provide the defendants with the necessary authorizations to obtain the relevant medical records from the past ten years in regard to her gynecological care and treatment. A Staten Island Personal Injury Lawyer said the court also orders that the protective order for the plaintiff is partially granted and the records after the infant was born are not eligible for discovery. The plaintiff and defendant will follow up in court at a later date.

Legal situations can become quite tricky very quickly. If you are in need of legal advice, contact Stephen Bilkis & Associates for help. We have offices located throughout New York City. You may call us at any time to set up an appointment for a free consultation.

June 22, 2012

Plaintiff Claims Damages for Pregnancy

The claimant in this case is Alice D. The defendant of the case is William M. The case is being heard in the New York County Harlem Small Claims Court. Both the claimant and the defendant are representing themselves in the case. The Honorable David B. Saxe is overseeing the case.

Case Introduction

This case revolves around the issue of a man and a woman having sexual intercourse that resulted in a pregnancy. A New York Injury Lawyer told the man told the woman that he was sterile at the time they had sexual relations. She is suing him for the cost of the abortion and related expenses as a result of the pregnancy.

Case Facts

The essential facts in the case are: The claimant is divorced and lives with her son who is 10 years old. The defendant works as a postal worker, is married, and has three children that are grown. The two become lovers in the fall of 1981 after a friendly relationship of a couple of years.

Before the couple had intercourse they discussed options of birth control as neither one wanted the claimant to become pregnant. The claimant had planned to use a diaphragm, but the respondent told her not to worry because he was sterile as a result of a medical condition. The defendant claims that he is sterile from hydrocele. Hydrocele is a collection of fluid that typically forms a mass around the testicles. It seems that the discussion about the male’s fertility took place before the parties first had intercourse.

It seems that they were in the heat of the moment at the time and the claimant believed the defendant and decided not to use any form of contraceptive. She became pregnant in December and had an abortion in January.

The defendant argues that he is sterile and the pregnancy must have been a result from the claimant having sex with another man. A Nassau County Peronal Injury Lawyer said the claimant denies having sex with anyone else and states that the defendant was the father of the aborted fetus.

Court Discussion and Conclusion

This is a sensitive and difficult issue and there is no expert testimony to help determine the case. A New York City Personal Injury Lawyer said the defendant testifies that he suffers from hydrocele, but offers no proof of this. He also has no other evidence to support his claim of being sterile. Additionally, even if the defendant does suffer from hydrocele, this does not confirm the fact that he is sterile.

After researching the issue, the court has discovered that hydrocele does not necessarily cause a man to become infertile. The court believes that the defendant is not sterile and engaged in sexual relations with the claimant knowing this. Additionally, the court does not believe that the claimant had sex with any other partners during this time.

After further reviewing the case and accusations made by the plaintiff, the court finds in favor of the plaintiff. This court has the discretion to limit the recovery for this type of case to a reasonable amount. The court believes that the reasonable amount for this case includes four days of lost wages, pain and suffering as a result of the pregnancy and abortion, and the cost of the abortion. This amount comes to a total of $564.35, which breaks down as $200 for the abortion, $210 for loss of earnings, $150 for pain and suffering, and $4.35 for transportation.

If you are in need of legal guidance, contact the law offices of Stephen Bilkis & Associates. Our team of lawyers will discuss your case with you during a free consultation, whether you have been involved in a medical malpractice action, premises liability or product liability. Our offices are located throughout the city of New York for your convenience.

June 21, 2012

Slip and Fall Results in Birth Injury


This is a case of appeal being heard in the Second Department of the Supreme Court Appellate Division. The appellant in the case is Rita Prado. The respondents of the case are the Catholic Medical Center of Brooklyn and Queens, Inc. et al.

Case History

The plaintiff is appealing a verdict from a medical malpractice suit that was heard in the Queens County Supreme Court. The original verdict made by the Supreme Court was in favor of the defendants, granting a summary judgment in the case. A New York Injury Lawyer said the complaint made by the plaintiff was dismissed.

Court Order

This court is modifying the previous judgments that were made in the case. The provisions that dismissed the second part of the cause of action that sought to recover damages that were suffered by the plaintiff from the slip and fall are deleted. The plaintiff suffered damages as a result of fearing her impending death and from the physical injuries she sustained as a result of the alleged malpractice made by the defendants.

We are substituting a provision in the original judgment that denied the motion and for the judgment that dismissed the second part of the action against the remaining defendants. We are adding a provision to the case and affirming the other judgments of the matter. There are no disbursements or costs.

The action was to recover damages inter alia for the still birth of the child of the plaintiff. Several years before her pregnancy, Rita Prado, the plaintiff, had undergone a rectocystocele repair. A Brooklyn Personal Injury Lawyer said during her prenatal visits with her doctor it was decided that a vaginal birth would be dangerous and it was decided that a caesarian section would be necessary. On the ninth of February, the plaintiff was admitted to St. John’s Hospital at 10 a.m. She was in labor when she arrived. The caesarian section was not performed until 1:30 p.m. This was because of a delay in performing an EKG even though there were other signs of fetal distress. As a result, the baby was delivered still born.

While the claim that Rita Prado suffered prolonged pain is not actionable because it was not permanent and not a pain that is naturally associated with the birth of a child. However, it is settled that even though there were no physical injuries, a mother may not recover emotionally and psychic harm as a result of giving birth to a still born baby. In this case it cannot be determined that the plaintiff’s fear of death or personal injury was a result of the birth.

We find that while Rita Prado may suffer from emotional injury as a result of her baby being still born, the issues of feeling an imminent fear of death or personal injury as listed in the bill of particulars for the plaintiff are not substantiated. A Bronx Personal Injury Lawyer said the court finds that the plaintiff cannot make a case based on emotional trauma. Three out of the four judges hearing this case agree.

Malpractice suits can be extremely difficult to navigate. If you have had a medical experience that you believe was the direct result of malpractice by a physician, you need an experienced lawyer on your side. At Stephen Bilkis & Associates we have a team of expert lawyers waiting to help you. You may contact any one of our New York City offices to set up a free consultation. Our litigators will discuss your case with you to determine what the best course of action will be.

June 20, 2012

Court Discusses Neglect of Children

This is a case of alleged neglect of two children; Kamiyah C. and Janiyah T. both are under the age of eighteen. The respondents of the case and the two people accused of neglecting the children are Amanda T. and Lateek C. The case is being heard in the Family Court of Kings County.

Case Background

A New York Injury Lawyer said the respondent mother, Amanda T. is the mother of both of the children in question. Lateek C., the respondent father, is Kamiyah’s father and is personally responsible for Janiyah. The two children were removed from the home of the respondents on the 30th of January, 2007.

In February of 2008, the NYCCS filed petitions of abuse against the respondents. The petitions stated that on the 30th of January the respondent father excessively used corporal punishment on Janiyah that left bruises, marks, and resulted in two black eyes. Additionally, the petitions state the respondent father had previously hit Janiyah in the face with a belt in November of 2007. The respondent mother is alleged to have neglected the children by not removing them from the home after the respondent father had inflicted excessive corporal punishment to them.

When the petitions were submitted, the NYCCS was granted custody of the children. The respondent mother requested a hearing to return the children to her. A Queens Personal Injury Lawyer said the matter was resolved without a hearing and the children were given to the respondent mother under the guidelines that she enroll in an anger management course, parenting skills class, and enforce the protection order against the respondent father. The protection order evicted the respondent from the home, and stated that he not commit any offenses toward either child, and that he was not allowed nearJaniyah. He was given supervised visitation rights with Kamiyah.

Court Discussion

In the instant case for neglect against Janiyah the NYCCS does not have to prove a course of conduct as it is considered that one incident is sufficient to establish neglect. There is no dispute that the respondent father hit Janiyah in the face with a belt and caused bruising in November of 2007. A Staten Island Personal Injury Lawyer said that Janiyah told the case worker that her father hit her again on January 30th. She stated that he hit her in the face, back, and legs. This corresponds with the testimony from the caseworker describing the bruises on the child.

In the case of the respondent mother neglecting Janiyah, the mother was not home when the incident in November occurred. She was told what happened when she returned home, but did not take any action to protect the child. The mother also tried to initially deny that the incident had occurred and Janiyah also tried to deny it stating that her mommy told her it was a secret and not to tell the truth.

Court Decision

After reviewing the case the court finds the respondent father guilty of neglect and the abuse allegations are dismissed. The respondent father is also accused of derivative neglect of Kamiyah. The children will be released to the respondent mother and the allegations of derivative neglect by the mother are dismissed. Upon release of the children to the mother a protection order will be placed against the respondent father. He is not allowed to come to the home and is only allowed supervised visits with Kamiyah.

If you are in need of legal advice, whether for an assault, broken bone or medical malpractice action contact Stephen Bilkis & Associates. We offer free consultations at all of your New York City offices. You may call or come in to set up a time to discuss your legal matter.

June 17, 2012

Plaintiffs Medical Malpractice Action Claims Lack of Informed Consent

Birth Injury 129

The plaintiffs of the case are Alexander Perez and Invannia Mieses- Perez. The defendants of the case are the University Hospital of Columbia and Cornell, Nicole Rodney, Jack Maidman M.D., Kimberly Mathis M.D., Sharmilee Bansal M.D., and Joshua Holden M.D. The case is being heard in the State of New York Supreme Court.

Case History

The medical malpractice action in this case involves the lack of informed consent in regard to a bilateral tubal litigation. This procedure was performed on the 16th of August in 2007 on Ms. Mieses-Perez. When she was pregnant the second time, Ms. Mieses-Perez informed her obstetrician, Dr. Maidman, that she did not want any more children.

Dr. Maidman discussed the option of tubal litigation with the plaintiff. He has testified that he informed Ms. Mieses-Perez that tubal litigation was irreversible and permanent and that there were other options for sterilization and that she could change her mind about having this surgery performed at any time before the surgery. A New York Injury Lawyer said he also states that he informed her that there were risks and complications of having this type of procedure. He claims that he fully explained how the procedure would work.

Ms. Mieses-Perez signed the Sterilization Consent form. A member of Dr. Maidman’s staff witnessed her signing the form.

Ms. Mieses-Perez had a normal pregnancy and had her child on the 18th of July, 2007. She was dismissed from the hospital two days after her child was born. She states that she was told that the tubal litigation procedure would take place immediately after delivery. However, Dr. Maidman was not there for the delivery and states that he had never planned on performing the surgery himself. A Queens Personal Injury Lawyer said his office provided a list of surgeons available for the surgery.

Dr. Holden was one of the surgeons on this list.

Dr. Bansal, who is a resident at the hospital and Dr. Holden who was to perform the surgery both state that they discussed the operation with Ms. Mieses-Perez and made it clear that the operation was permanent. She agreed to the surgery and signed the form of consent. Her husband was the witness of her signature.

There were complications during the procedure and the original plan for laparoscopic surgery had to be abandoned and an open laparotomy was performed. It was found that while trying to insert the trocar, the surgeons had nicked her aorta. The vascular team had to be called in to repair it.

Plaintiff’s Complaint

The plaintiff’s complaint raises a claim of lack of informed consent, medical malpractice, loss of services, and negligent granting of hospital privileges. A Bronx Personal Injury Lawyer said the plaintiffs state that they were not aware of the risks of the surgery, mainly that there was risk of her aorta being damaged and an open surgery that left scars.

Defendant’s Argument

Dr. Holden and Dr. Bansal offer support for their summary judgment in the form of an expert affirmation of the procedure that they performed and that Dr. Bansal only acted under the direction of Dr. Holden.

Case Discussion and Decision

In a medical malpractice action, a defendant that moves for summary judgment must show entitlement to this type of judgment without question. In this particular case, the defendants have not proven prima facie in this regard. It is ordered that the action will continue and the parties will continue with the pre-trial conference set for the 15th of March.

Stephen Bilkis & Associates can help in any type of legal case that you may be in. We have offices located throughout the city for your convenience. Contact us at any time to set up an appointment for a free consultation.

June 16, 2012

Infants Personal Injury Award Paid to Welfare Department

The female complainant was a public charge from the time of her birth and maintained by the County Welfare Department infants' homes and foster homes. She was married and was removed from the Welfare rolls.

A New York Injury Lawyer said in 1955 the complainant was involved in an automobile accident. By the order of the County Supreme Court, the infant's settlement was allowed and bills were ordered paid to the County Welfare Department as reimbursement as a fifty percent compromise for sums paid by said Department to the hospital and the balance was ordered paid over to the Commissioner of Social Welfare as general guardian of the infant, jointly with the Guardianship Department of the Surrogate's Court. The Welfare Department's allegation that the money was expended on behalf of complainant from the date of her birth to shortly before her marriage appears to be unchallenged. By an order of a Judge, the sum of $4,012.95 then in the infant's guardianship account was ordered to be paid to the Commissioner of Social Welfare as part reimbursement for the support, care and maintenance furnished by the County Department of Social Welfare. The pending proceeding is for an order setting aside the aforesaid order of the Surrogate's Court and directing an accounting by the Commissioner of Social Services and payment of the funds to the complainants.

There appears to be no question but that the sums of money involved were in the guardianship account as a result of the infant's settlement for personal injuries. The complainant's theory is that funds of an infant from a personal injury settlement may not be applied for care and maintenance. Many cases in the State promulgate the theory.

The infant's money was awarded to compensate him for his pain, for his suffering and for his incapacity occasioned by the accident, not to purchase necessaries for him during his minority. A Westchester County Personal Injury Lawyer said the law obligates the father to provide those necessaries. If he fails in this duty, those agencies should act that provide necessaries for infants without such funds.

I am not dealing with infants who possess inheritances but with crippled children each of whom happens to have a small sum of money in place of a normal body. When that money is withdrawn to purchase necessities, it is being misapplied. It is thus clear that no withdrawal is justifiable unless it be for an urgent purpose over and above the ordinary necessities of life, helpful to a reduction of the consequences of the injury.

Personal injury recoveries are not, in the Court's opinion, to be treated as sacred funds untouchable under all circumstances. A Suffolk County Personal Injury Lawyer said in a similar case, an affidavit was furnished by the infant's mother to the effect that the infant still suffered epileptic seizures as a result of the injuries she suffered from the accident.

Another similar case indicated by the court that it was dealing with crippled children each of whom happens to have a small sum of money in place of a normal body. The case indicates that the use of infant's monies would be justifiable if it were helpful to a reduction of the consequences of the injury.

Nowhere does it appear in the petition, affidavits or memoranda of counsel what injuries were sustained by the complainant; whether there was permanency or not; or the likelihood of the necessity of further medical treatment; whether monies expended by the Welfare Department covered any medical bills arising from injuries due to the accident.

The purpose of public assistance is for the protection of the public purse and not merely rendered gratuitously. Also with those statutes which were designed to relieve the public of part of its burden of supporting the indigent and the obvious purpose of the legislation is to permit recovery from persons responsible for such public relief as has been given.

If you have been a victim of medical malpractice and was caused to experience pain and sufferings due to other people’s negligence, you may call the office of Stephen Bilkis and Associates to discuss with the New York Injury Attorneys.

June 13, 2012

Court Decides if Insurance Co. Liable in Hospital Mishap

The wife of the complainant went to a Hospital where she had a normal delivery of a child and she remained for five days at which time she and the infant were discharged.

The facts further indicate that the child was born with a right congenital hernia. In the best interest of the infant's health, the operation was postponed for three months. A New York Injury Lawyer said that at that time, herniotomy was performed at another Hospital and the child was discharged after three days.

The services of the hospital and doctors during the confinement of the woman and her child amounted to $474.90 and the expenses incurred for correcting the hernia amounted to $288.00.

The insurance forwarded to the complainant two checks, one in the amount of $179.92 and the other for $30.40. These sums were arrived at in the following manner: $474.90 less $250.00, the deductible amount, leaving a balance of $224.90 of which $179.92 or 80% was paid for the confinement; $288.00 less $250.00 the deductible amount, leaving a balance of $38.00 of which $30.40 or 80% was paid for herniotomy.

The husband of the woman rejected both of the checks claiming that under the provisions of the policy there should be but one deductible amount applied to all the charges. A Suffolk County Personal Injury Lawyer said the husband contends, however, that the bills involved two separate charges and it was, therefore, proper to apply the deductible amounts to each one separately.

The provisions of the policy of insurance provide that when deductible amount shall apply separately to each insured family member, and to each accident or sickness, except that only one deductible amount shall apply as well as to all charges incurred as a result of childbirth, including charges incurred for the infant, until and including the fourteenth day after the date of such birth.

The law is established that when an insurance policy contains ambiguities, they must resolve against the insurer as the party who drafted the instrument. A Westchester County Personal Injury Lawyer said the meaning to be given to a contract of insurance must be the meaning that the ordinary business man must give it.

A contract of insurance is to be construed according to the sense and meaning of the terms used, which if clear and unambiguous, are to be understood in their plain, ordinary, and popular sense. However, if there is any ambiguity the provision will be construed most strongly against the insurer, and in favor of the insured.

When uncertainty and doubt arise from policy language susceptible of more than one meaning, we may adopt the oft-quoted but seldom decisive formula of resolving all ambiguity against the insurer.

The law is well established, and the cases too numerous to cite sustaining the principle, that if there is any doubt as to the meaning of its terms, the language in the policy of insurance should be given the meaning most favorable to the insured.

When reasonable men on reading the terms of an ambiguous insurance contract would honestly differ as to its meaning, the doubt should be resolved against the company and if the company desires to exclude from its general coverage or limit its liability, it has the responsibility of wording it in clear and unmistakable language so that no average person can be misled.

Contracts are to be interpreted in the light of the language which we commonly use and understand; in other words, our common speech. Such at least should be the rule applied to the interpretation of the policies, and which sometimes referred to as a liberal construction.
In seeking to ascertain the scope and meaning of the provision of the policy, a charge shall be deemed to be incurred as of the date of the service or purchase giving rise to the charge, we ascribe to it the ordinary and popular meaning, importing the construction that would be given it by the average assured when he purchased the policy.

In rejecting the claim of the insurance company that the use of the phrase expenses incurred, as used in the policy, meant expenses of services that had already been rendered or performed within one year from the date of the accident, the court held that the insurer was liable for all reasonable expenses for repairs of the child's injuries, whether the services correcting them were or were not performed within one year from the date of the accident.

The case held that Incurred means to become liable for, or subject to, to render liable or subject to; incur means something beyond contract, something not embraced in the word debt. In actions for injuries, recovery may be had for amounts shown to have been expended or incurred for hospital bills and medical treatment, provided such damages are properly pleaded; incurred means to become liable for.

In support of its conclusion, the court said that a debt has been incurred when liability attaches, and that a contingent promise to pay has been incurred when the contingency upon which the payment depends occurs, so that the insurance company became liable for all reasonable expenses caused by the accident on the day it occurred.

Viewed in their context and applied to the instant facts, we think the words 'giving rise to the charge' were intended to refer to the occurrence of the event giving rise to the claim of liability and not to the accrual of liability. This conclusion gives the contract a fair and reasonable interpretation and will not lead to harsh and unreasonable results.

It is not uncommon that an accident insurance policy which was in force at the time the insured suffered an accidental injury terminates while medical treatment or hospitalization are still being furnished to the insured. In such cases it is submitted that the view which is supported by the closely reasoned cases is that the liability of the insurer for medical expenses continues even after the termination of the policy. The viewpoint is based upon the theory that all claims under an accident policy originate at the time the compensable accident occurs.

It is stated when an accident policy is in full force and effect when insured sustains an accidental injury, the cause of action arises immediately, regardless of whether the policy is kept alive by subsequent payment of premiums, and he is entitled to recover the full amount of indemnity provided.

The apparent purpose of the clauses in question was to compensate the policyholder for charges incurred as a result of childbirth, including charges incurred for the infant, until and including the fourteenth day after the date of such birth. The sense and meaning of the words used indicate that the charges were incurred at the time when the claim of liability arose. The claim originated when the congenital hernia was discovered in the infant and it was well within the fourteen day period referred to in the policy. The fact that the medical expenses for the correction of this condition continued and extended beyond that time limitation did not acquit the accused from its responsibility of treating the expense as part of the charge of childbirth. The view seems to be supported by the authorities and there was unquestionably a continued service of required medical treatment which was uninterrupted and unbroken, except for the postponement of the operation required for the best interest of the infant's health.

It follows therefore, that the complainant is justified in his claim. Accordingly, the court finds that the confinement of the wife and the confinement of the infant are to be considered as one charge. From the amount will be subtracted the deductible amount leaving a balance of which the accused is to pay 80%. Judgment is granted to the husband of the wife against the insurance provider.

Insurance policies promise us assistance and help when we need them but most of the time, they do otherwise. If you have been declined of insurance coverage during hospitalization, or have suffered from medical malpractice, feel free to consult a NY Injury Lawyer or New York Medical Malpractice Attorney from Stephen Bilkis and Associates.

June 11, 2012

Court Dicusses Personal Jurisdiction Claim Regarding Child

Plaintiffs file a complaint raising a variety of civil rights claims under federal and state law against the County of Albany, the Albany County Department of Social Services ("DSS"), the Commissioner of DSS in his official capacity, and three other caseworkers.

A New York Injury Lawyer said the center of each of the claims is the fact that for the first five years of the child's life, his father, plaintiff-one, was not only denied custody of his child, but also, for the most part, unsupervised visitation. Over this five-year period, to gain child custody, plaintiff-one was required to undergo drug assessments, drug screenings, drug rehabilitation programs, psychological and mental health evaluations, parenting classes, supervision in his interactions with his child, the burden of protracted Family Court litigation and continual governmental interference with his right to parent his child all in the absence of proof that he was, or had ever been, an unfit, neglectful or abusive parent to his son (or any other child).

Defendants move for summary judgment dismissing the complaint and argue that plaintiffs' claims are foreclosed by various immunities, including: judicial immunity; discretionary function immunity; qualified immunity; and immunity for the reporting of suspected child abuse or neglect. Further, defendants contend that they are entitled to summary judgment on the merits of the various constitutional and statutory claims asserted by plaintiffs. One of the defendants also argues that service upon him of the complaint and summons have not been made, therefore, the Court lacks jurisdiction over him.

On the issue of Personal Jurisdiction:

A Bronx Personal Injury Lawyer said one of the defendants moves for dismissal of the claims against him, based on lack of personal jurisdiction; that he was never served with the summons and complaint. At oral argument, plaintiffs' counsel conceded as much. Given that defendant preserved his jurisdictional objection in the amended answer and in the absence of any dispute regarding lack of service of process, defendant must be dismissed from the action.

On the issue of Judicial Immunity on Federal Claims:

The Court begins, as it must, with the presumption that qualified immunity is sufficient to protect defendants in the exercise of their duties, and that defendants bear the burden of demonstrating an entitlement to absolute immunity. With that in mind, the critical inquiry is whether the functions performed by defendants were protected by absolute immunity at common law.

The primary injury alleged by plaintiffs supported by a variety of constitutional and statutory theories is unjustified interference with the right of plaintiff-one to raise his natural child (and the corresponding right of the son to be raised by his father). A Brooklyn Personal Injury Lawyer said the determinations to place the child in DSS custody, to deny the father's numerous petitions for custody, and ultimately to terminate the father's parental rights were that of Family Court, through a series of orders issued from July 1995 through June 1999. Plaintiffs nonetheless contend that defendants can be held liable for their role in procuring such orders from Family Court. Further, plaintiffs allege that defendants engaged in other conduct giving rise to liability that was not done pursuant to express court order.

Filing of Petitions in Family Court: Defendants filed petitions with Family Court seeking to place the child in their custody and to continue such custody. Defendants also filed a petition to terminate plaintiff-one’s parental rights. The initiation and prosecution of a proceeding by a child protective agency is protected by absolute immunity, since child welfare officials are engaged in a function that is similar to that of prosecutors, for which immunity was provided at common law.

Evidentiary Submissions and Recommendations to Family Court: Defendants are not protected by absolute immunity in connection with the evidentiary submissions and programmatic recommendations that they provided to Family Court. In a similar case, the Supreme Court has made it clear that the actions of a prosecutor signing an affidavit attesting to the facts supporting the issuance of a warrant are not protected by absolute immunity. The Court reasoned that the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause and does not enjoy the same absolute immunity as the preparation and filing of Information and a motion for an arrest warrant. Thus, as counsel for defendants acknowledged at oral argument, defendants are not protected by absolute immunity.

Evaluations/Preventive Services Requirements: Defendants required plaintiff-one to obtain a number of evaluations, including drug assessments, drug screenings and mental health evaluations. Further, defendants required plaintiff-one to participate in a variety of programs, including anti-drug education programs and parenting classes, ostensibly directed at uniting him with his son. The question is whether defendants are entitled to judicial immunity for the function of requiring plaintiff-one to participate in various evaluations and obtain the preventive services recommended as a result of such evaluations. In the absence of an express court order specifically directing these actions or a showing that such actions are functionally comparable to ones for which officials were rendered immune at common law, the Court concludes that defendants have not demonstrated an entitlement to immunity.

Terms & Conditions of Visitation: Defendants allegedly deprived plaintiff-one the right to visit his child while in foster care. The issue of visitation was addressed in the order of the Family Court, wherein the father was temporarily granted supervised visits with the child, upon his completion of a substance abuse evaluation and psychological assessment. Thereafter, the terms and conditions of visitation, including whether the visits were supervised or unsupervised, were established by DSS personnel, with periodic notification to Family Court. The Court concludes that defendants are not entitled to absolute immunity for their conduct in establishing the terms and conditions of visitation and in monitoring compliance therewith.

Other than the initial temporary order conditioning supervised visitation on the completion of the certain assessments, defendants' role with respect to visitation was not done pursuant to express court direction and is not functionally similar to activities protected by absolute immunity at common law.

Other Activities: Plaintiffs also identify a variety of other actions and omissions supporting their theories of liability. One such functional area is permanency planning, where plaintiffs allege that defendants failed to make appropriate efforts to unite father and child. Another broad functional area relates to the allegedly faulty investigations of plaintiff-one. Finally, plaintiffs complain that defendants failed to communicate adequately and keep plaintiff-one informed of relevant matters. It is clear that these types of activities are not protected by absolute immunity. There is no specific directive of Family Court that compelled defendants' activities. Defendants cannot identify a functional counterpart who would be provided judicial immunity at common law while engaged in such activities.

On the issue of Viability of Federal Claims:

Having determined that many of the functions performed by defendants are not protected by absolute immunity, the Court must then consider whether defendants are protected by qualified immunity. The threshold inquiry for a court ruling upon a claim of qualified immunity, however, is whether the facts alleged, taken in the light most favorable to plaintiffs, show that defendants' conduct violated a federally protected right. On a motion for summary judgment, the issue then is whether defendants have demonstrated an entitlement to judgment as a matter of law. If they have, there is no need for any further inquiries concerning immunity.

It is well established that summary judgment is a drastic remedy and should only be granted if there are no material issues of disputed fact. In evaluating a motion for summary judgment, a court should decide whether material issues of disputed fact preclude the grant of judgment as a matter of law. The party moving for summary judgment has the initial burden of coming forward with admissible evidence to support the motion, so as to warrant the Court directing judgment in movant's favor; the burden then shifts to the opposing party to demonstrate, by admissible evidence, the existence of any factual issue requiring a trial of the action.

Substantive Due Process: The first federal cause of action asserted by plaintiffs is interference with the father's fundamental liberty interest in raising his child (and the corresponding right of the child to be raised by his parent), as guaranteed by the Fourteenth Amendment of the U.S. Constitution. Plaintiff contends that as a proximate result of defendants' unlawful interference with this liberty interest, he and his son have suffered substantial monetary, emotional and psychological damage. The Court concludes that in order to succeed on their substantive due process claims, plaintiffs must demonstrate that defendants were deliberately indifferent to, or acted in reckless disregard of, the father's right to raise his child free of State interference absent proof of neglect, abuse or unfitness (and the corresponding right of the child to be so raised).

Substantive Due Process, Caseworker Liability: The Court concludes that plaintiffs have succeeded in raising triable issues of fact regarding the liability of one of the defendants, the primary DSS case worker from mid-1995 through June 1997 and the direct supervisor of DSS case workers, on the claimed substantive due process violations. On the other defendants, while proof will be examined in greater detail with respect to their assertion of qualified immunity, it is not sufficient to establish defendants' entitlement to judgment as a matter of law on the substantive due process claim. Clearly, the decision of the Third Department conclusively establishes that there was no legal basis for depriving plaintiff-one of the custody of his child. Further, while the Court agrees with defendants that they were entitled to a reasonable opportunity to ensure that the father did not pose a danger to the health or welfare of the child prior to seeking to unite them, a reasonable trier of fact could conclude that the individual defendants manifested deliberate indifference to, or reckless disregard of, the father's liberty interest in raising his child, based on their apparent long-term disregard of the primacy of the father-son relationship and their role in the five-year cycle of drug assessments, drug screening, drug rehabilitation programs, psychological and mental health evaluations, parenting classes, supervised visitation, protracted Family Court litigation and continual governmental interference with the father-son relationship all in the absence of proof that plaintiff-one was, had ever been, or would be an unfit, neglectful or abusive parent. In sum, the Court concludes that a reasonable trier of fact could find the individual defendants' conduct in keeping father and son apart for five years under the circumstances presented by this case to be "conscience shocking, in a constitutional sense."

Substantive Due Process, Municipal Liability: Under the law, a municipality cannot be held vicariously liable for the unconstitutional conduct of its employees. Rather, it may only be found liable where the municipality itself causes the constitutional violation in question. The municipality itself causes the injury when either: (1) the execution of the government's policy or custom causes the injury; or (2) the act of an employee with final policymaking authority in the particular area involved causes the injury. Here, the record demonstrates that DSS employees received substantial training regarding their responsibilities as caseworkers. It also demonstrates that the activities of defendants were subject to ongoing supervision and oversight. In addition, the caseworkers relied on consultations with DSS's legal staff and the recommendations of outside professionals. Under the circumstances, plaintiffs have failed to offer sufficient proof that the County had notice of any repeated, similar constitutional violations or that the DSS Commissioner was presented with facts and circumstances that give rise to actual or constructive knowledge of the need for additional training.

Procedural Due Process Claims: The Due Process Clause requires state actors to provide fair procedures before denying an individual a protected liberty interest. The deprivations of custody and parental rights complained of by plaintiffs ultimately were the product of determinations and orders of Family Court. While plaintiffs have come forward with evidence linking defendants' conduct to the substantive deprivations ordered by Family Court, they have not come forward with evidence establishing defendants' responsibility for the procedures used by Family Court. Accordingly, defendants are entitled to judgment as a matter of law.

Fourth Amendment Claims: Plaintiff-one claims that the Fourth Amendment applies in the context of the seizure of a child by a government agency official during a civil child-abuse or maltreatment investigation; that the continued retention of the child by defendants in foster care, pursuant to orders of Family Court, represents a violation of his Fourth Amendment rights. Under the circumstances, it is difficult to characterize defendants' conduct to have been a "seizure" of the child within the meaning of the Fourth Amendment. Given the substantial overlap between the substantive due process and Fourth Amendment claims, the Court finds that defendants' alleged misconduct in this unique set of circumstances is more appropriately analyzed under the generalized rubric of substantive due process.

Equal Protection Claims: The record is devoid of evidence establishing that defendants intentionally singled out plaintiff-one for discriminatory treatment. In addition, other than vague comparisons to the child's mother (who had her parental rights to the child terminated in 1997), the record fails to demonstrate a class of similarly situated persons receiving superior treatment. Accordingly, defendants are entitled to judgment as a matter of law.

Adoption Assistance Act: The Court concludes that the provisions of the U.S. Adoption Assistance & Child Welfare Act relied upon by plaintiff were not intended to confer individual rights enforceable in a private action under Section 1983. Accordingly, this claim must be dismissed.

On the issue of Qualified Immunity:

Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law. Qualified immunity generally is a question of law to be resolved by the court and, since it is immunity from suit rather than a mere defense to liability, it should be decided at the earlier possible stage of the litigation.

Clearly Established Right: Given the substantial variation between the facts of this case and the precedents establishing the generalized right to rear one's child, it is questionable whether the parties have articulated the right at issue in a sufficiently particularized manner.

Nonetheless, even accepting the right in the manner framed by the parties, the Court concludes that the individual defendants are entitled to qualified immunity on the ground that it would not have been clear to reasonable case workers that their actions violated such right.
Evaluation and Preventive Service Requirements: The Court concludes that the individual defendants are entitled to qualified immunity for their role in requiring plaintiff-one to participate in various evaluations and obtain the preventive services recommended pursuant to such evaluations.

Evidentiary Submissions and Recommendations: The Court concludes that the individual defendants are entitled to qualified immunity with respect to their submissions and recommendations to Family Court. It would not have been clear to a reasonable caseworker in the position of defendants that he or she would violate plaintiffs' familial rights by insisting that the father fully satisfy the prescribed evaluation and service requirements prior to recommending that plaintiff-one be given custody of his child. Further, defendants' reliance on the judicial process including a Law Guardian appointed to represent the interests of child, the procedural protections nominally available to Family Court litigants and the generous appellate remedies provided by the CPLR to strike an appropriate balance between the State's interest in protecting a minor child from harm and respecting the sometimes competing right of a father to rear his child, cannot be said to be unreasonable.

Visitation: Similar considerations compel the conclusion that the individual defendants are entitled to qualified immunity with respect to the issue of visitation. Defendants' actions in limiting father-son visitation were again based primarily on the reports and recommendations of the outside evaluators and the failures of the father to obtain the recommended preventive services. It would not have been apparent to a reasonable social service worker that they were violating plaintiffs' substantive due process rights by restricting visitation under these circumstances.

Other Conduct: While plaintiff complains that DSS officials and outside providers exhibited a bias against him, there is nothing in the record to support the contention that defendants had any personal animus towards plaintiff-one or that they were carrying out some predetermined agenda to deprive him of his parental rights. Further, while defendants may occasionally have relied on incorrect or suspect information in formulating their recommendations there is no basis to conclude that defendants, knowingly, submitted false information to the Family Court; turned a blind eye toward suspect information or otherwise acted in an unreasonable manner in investigating plaintiff-one.

Henceforth, defendants are not entitled to judicial immunity, except in certain limited respects; the individual defendants are entitled to summary judgment on all claims except for the substantive due process claims, where plaintiffs have succeeded in raising triable issues of fact; the municipal defendants are entitled to summary judgment on all claims; the substantive due process claims against the individual defendants must be dismissed on the basis of qualified immunity; with respect to plaintiffs' state law claims, the doctrines of judicial immunity and discretionary function immunity entitle defendants to summary judgment on all claims; and that the court lacks personal jurisdiction over one of the defendants. The plaintiffs' complaint is dismissed and the plaintiffs' motion for leave to amend the complaint is denied as moot.

In resolving family issues, one should get a very well trained New York Family Lawyer. Because with family issues, child custody issues usually come hand in hand. In this regard, a skilled and experienced New York Child Custody Lawyer is highly recommended. Whether you have a medical mapractice claim, or have been injured in a slip and fall or car accident, for help contact Stephen Bilkis & Associates. We have the best legal experts in the country.


June 9, 2012

Court Determines if Statute of Limitations Applies in Medical Malpractice Case

The Facts:

A New York Injury Lawyer said between 9 and 11 of November 1982, defendants allegedly failed to correctly and properly assess the significance of an ultrasound report and an amniocentesis test and permitted plaintiff to proceed beyond full term of her pregnancy, thereby causing the plaintiff’s child to be born on 30 November 1982 with severe and permanent injuries, birth injuries.

On 23 November 1992, plaintiff files a complaint for medical malpractice action stemming from defendants' prenatal treatment of her.

Defendants included two affirmative defenses relating to the Statute of Limitations in their answer because plaintiff did not commence the instant action until 23 November 1992.

Plaintiff moves to strike the aforesaid defenses.

On 9 March 1993, the Supreme Court of Albany County grants the motion.

Hence, defendants file an appeal.

The Issue:

Does the Statute of Limitations apply?

The Ruling:

Under the law, the Statute of Limitations for a medical malpractice action is 2 1/2 years, which may be tolled during a plaintiff's infancy for a maximum of 10 years from the accrual of the claim. A Manhattan Personal Injury Lawyer said as a general rule, a medical malpractice action accrues at the time of the commission of the alleged malpractice subject to the continuous treatment doctrine and foreign object exception.

Here, plaintiff would have the court create another exception for prenatal injury cases by establishing the date of birth as the accrual date. The rationale for her argument is that a cause of action for prenatal injuries cannot be pursued unless the child is born alive.

Plaintiff cites no authority supporting her position. In fact, in an analogous medical malpractice case arising out of the defendant's misreading of genetic test results of the child's father early in the mother's pregnancy, the First Department noted that Supreme Court was correct in its determination that the cause of action accrued on the date the test result was misread.

Likewise, in another prenatal injury case, the cause of action was deemed to have accrued on the date the plaintiff's physician negligently attributed her illness to food poisoning, rather than to rubella, the First Department holding that a medical malpractice claim accrues on the date of the original act, omission or complained-of failure. Thus, in the instant case, the court also concludes that plaintiff's cause of action accrued when defendants allegedly misread the test results on 9 and 11 of November 1982.

The court’s conclusion is in accord with the legislative intent expressed in the Civil Practice Law and Rules recognizing the continuous treatment doctrine and the foreign object rule as the only exceptions to the general rule regarding the accrual of a medical malpractice cause of action. Courts have been reluctant to broaden the narrow confines of the exceptions.

Moreover, there are no public policy reasons for creating an exception for prenatal injury cases since the infancy toll provision provides an injured infant with an ample period of time within which to seek redress.

Further, even if the Statute of Limitations is tolled under the continuous treatment doctrine to 30 November 1982, the date of the infant's birth, plaintiff would not benefit since the 10-year infancy toll runs from the date the act of malpractice occurred rather than from the end of the period of continuous treatment.

Accordingly, a Nassau County Personal Injury Lawyer said the court finds that the Supreme Court should have denied plaintiff's motion since the action was commenced more than 10 years after the accrual of the cause of action.

The dissent's reliance on another case is misplaced. There is nothing therein to indicate that the general proposition that a tort cause of action does not accrue until an injury is sustained or when all the elements of the tort can be truthfully alleged in the complaint overrides the recently reiterated rule that a malpractice cause of action accrues at the time of the commission of the alleged act of malpractice. There is a distinction between a cause of action and a right of action, the latter being the legal right to maintain an action based upon a given state of facts or transaction. The fact that an action for prenatal injuries cannot be pursued unless the infant is born alive is not a substantive element of a malpractice cause of action; rather, it is a limitation upon the infant's right to maintain such action. Thus, it has no relevancy to the accrual of plaintiff's cause of action.

For the foregoing reasons, the Supreme Court should have denied plaintiff's motion seeking to dismiss defendants' affirmative defenses asserting the Statute of Limitations.

Henceforth, the statute of limitations apply; the order is modified, on the law; the motion dismissing the third and fourth affirmative defenses in the answer is reversed; the motion denied to that extent; and, as so modified, affirmed.

If you have suffered injuries by reason of a medical malpractice, it is advisable that you act on your right as soon as practicable to avoid having your case barred by the Statute of Limitations. Your right of action to file a case before courts has its limits. You cannot file a case only when you feel like filing because if you do, you may lose your chance of being compensated for the injuries you have suffered. For a free consultation, you may contact Stephen Bilkis & Associates and talk to our NY Medical Malpractice Lawyers or our NY Birth Injury Lawyers.

June 8, 2012

Court Discusses Issue of Parental Drug Use

The Facts:

A neglect proceeding has been initiated pursuant to Article 10 of the Family Court Act ("F.C.A.").

A Medical Center ("Medical Center") moves to quash a subpoena, served upon it by the petitioner, for all records of its contact with either or both respondents in the proceeding. The Medical Center argues that in the absence of a court order issued for good cause shown, disclosure of its records is prohibited.

The Ruling:

In a case decided by the Court of Appeals, the court identified the injury to the patient and treatment services resulting from disclosure of such records as the deterrence of the patient in question, as well as of other present and potential patients, from participation in treatment services due to fear, prompted by knowledge of record disclosures, that confidentiality will not be available to them at the treatment facilities and that the assurances given them are not to be relied on. A New York Injury Lawyer said the court ruled that while there is no evidence that respondents are currently in a drug treatment program and, thus, it does not appear that disclosure would harm a physician-patient relationship or result in respondents' termination of treatment services, the impact on other present patients as well as all potential future patients must be given substantial weight. On the other hand, the court must consider the public interest in protecting children (in resolving child custody) from injury or mistreatment and in safeguarding their physical, mental and emotional well-being. This interest is reflected in such New York State legislative determinations as those embodied in F.C.A. setting forth the purpose of child protective proceedings, requiring hospitals and other agencies to supply to the court records in their custody relating to abuse or neglect for use in Article 10 proceedings, and barring application of the physician-patient and related privileges in child protective proceedings. Prior courts which have been called upon to apply the federal statute in child protective proceedings have held that where the information is material and its disclosure is necessary to establish an allegation of neglect or abuse, the public interest in protecting children from mistreatment and in safeguarding their well-being outweighs the interest in protecting from injury the patient, physician-patient relationship and the treatment services.

The court agrees with the aforesaid conclusion. However, in view of the high priority assigned to the maintenance of the confidentiality of drug treatment program records, it is incumbent upon the court to scrutinize the extent of petitioner's need for the records.

Here, the petition stated four allegations of neglect. A Queen Personal Injury Lawyer said the one to which the records in issue would be most relevant is that the mother is unable to adequately care for the child due to her misuse of drugs.

Petitioner argues that proof that the respondents are or were in a methadone program will help in proving they are or were drug addicts.

Since there is no allegation in the petition that the child is neglected due to the father's drug use, the court grants the motion to quash the subpoena insofar as it pertains to any records of his which may exist.

Moreover, a Staten Island Personal Injury Lawyer said a review of the evidence adduced at trial and an in camera inspection of the period of time covered by the records in issue also leads the court to conclude that the need for the records of the respondent mother is not sufficient to establish good cause for their release.

The records in issue do not cover any period of time subsequent to the birth of the child who is the subject of the proceeding, and there is testimony by the child's paternal grandmother that the respondent mother once admitted to her that she was in a methadone program. Further, there is evidence that the respondent mother admitted to the child-care agency caseworker that she was mainlining by the age of eighteen and there is a finding by a Family Court judge at a foster care review proceeding on 2 October 1981, concerning a sibling of the child in the herein proceeding that there was evidence of drug addiction by the respondent mother.

Additionally, a social worker at Mary Immaculate Hospital testified without objection that the respondent father told her that the mother had been on drugs and in many drug rehabilitation programs. Thus, it is evident that the records in question, even if they were to show that the mother had been in a methadone treatment program for drug addiction at the Medical Center, would be merely cumulative.

Various courts have held that where drug treatment program records would be cumulative only, they will not be ordered disclosed. This is true when they are sought for the purpose of impeaching a witness' credibility and the fact of drug use has already been disclosed and where such records would be more probative than the evidence of the same facts already adduced.

Therefore, since the records would not be probative of drug use subsequent to the birth of the child and would be merely cumulative on the issue of drug use prior to the child's birth, the court will not order them produced for use in establishing the allegation of drug misuse.

However, since one of the allegations in the petition is that the child was diagnosed as "failure to thrive" and the doctor who made that diagnosis has not yet testified, the court reserves decision on whether to grant the motion to quash the subpoena in its entirety until it ascertains from the doctor whether the records would be relevant to the cause of the failure to thrive.

Accordingly, the Medical Center is ordered to have the records available at trial, for an in camera inspection if necessary, as the court may direct, until a final disposition of the motion to quash.

Drug use may have a great impact when one is seeking child custody. Parents with substance abuse issues rarely get custody. It is in the child’s best interest that they are not exposed to such. If you are involved in similar custody issues, or have a matter concerning medical malpractice, or have been in a car accident or construction accident, speak to a New York Injury Lawyer from Stephen Bilkis and Associates.

June 6, 2012

Plaintiff Brings Action for Birth Injury

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 the 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. 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 Nassau County Personal Injury Lawyer said 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.

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. Contact Stephen Bilkis and Associates for sound legal guidance and a free consultation.

June 3, 2012

Plaintiff Contends Emotional Distress in Medical Malpractice Claim

A mother and on behalf of her deceased daughter, sued three doctors, two nurses and a hospital for medical malpractice and for her daughter's wrongful death. However, the hospital together with one of the doctors and one of the nurses separately move for a decision without a trial to dismiss the claims for emotional distress and lost society, comfort, and affection. The said doctor also seeks dismissal of the mother's claims for lost support, services, and protection.

In opposition to the medical practitioner’s motions, the mother maintains that her action is closer with the previous court case in which a mother may recover for emotional distress when a child is stillborn due to medical malpractice. Further, a New York Injury Lawyer said the current record raises a factual issue whether the mother’s child was stillborn, since the opponent didn’t show that the child took a breath or had a heartbeat. Based on records, the state’s public health law defines live birth as a product of conception which after separation breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. The medical practitioners point out, however, that as they failed to make that showing, it was unnecessary, because the mother pleaded another claim on which with that previous court case a mother may not recover for emotional distress when her child is born alive and then dies due to malpractice. Consequently, the mother moved to revise her complaint and bills of particulars to clarify her alternative theories.
The court grants the mother's motion to revise her complaint and bill of particulars as specified. Further, the court also denies the medical practitioner’s current motion for a decision without trial, without prejudice, as they seek dismissal of her claim for emotional distress.

Regarding the claims that remain unaffected by mother's proposed revisions, the court denies the medical practitioner’s current motions, with prejudice, as they seek dismissal of the mother's claims for lost support, services, or protection that are of financial value or other financial loss from the child's wrongful death. However, the court grants the medical practitioners’ current motions 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 death.

Even if the mother's excuse for waiting so long to serve her motion to revise her pleadings is lacking, prejudice is the overarching test for denying the modification in the pleadings. Based on records, allowing the modification will take the litigation a step back, but any prejudice to medical practitioners demonstrated or not, will be mitigated by doing so. A Queens Personal Injury Lawyer said confronted with the evidence supporting the mother's alternative theory of recovery, which denying the modification would preclude, and balanced all the factors discussed. The court grants the mother's motion to revise her complaint and bills of particulars. The court considers them served and filed when the motion was served and then filed. The medical practitioners answered the modified complaint within 30 days after service of the order.

The note of issue will leave behind to provide the medical practitioner’s opportunity to conduct disclosure and move again for a decision without trial on the mother's claim for emotional distress only. However, the court denies the medical practitioners' current motions for decision without trial seeking to dismiss that claim, without prejudice.

Consequently, a Staten Island Personal Injury Lawyer said the court grants the medical practitioner’s current motions in seeking for the 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 death.

It is excruciating for any mother to see her child die immediately after birth. If you believe that you suffered from a medical malpractice, call the NY Medical Malpractice Attorneys so they can assess your legal actions. If your child experienced medical conditions resulting from her delivery, don’t hesitate to ask help from the New York Birth Injury Lawyers or NY Injury Attorneys at Stephen Bilkis and Associates.

June 1, 2012

Plaintiff Brings Action for Birth Injury

On September 19, 1974, at 11:30 in the evening, a 41 year-old woman was admitted into the maternity ward at the hospital where she worked as a board certified physician, to deliver her second child. A New York Injury Lawyer said the woman was monitored upon her arrival by a nurse who determined that the infant was at -2 station and that his heart rate was 140 and regular. Her obstetrician was notified of her labor and advised that he would drive in to the hospital immediately. The nurse continued to monitor her labor. At 1:35 a.m. the nurse notified the obstetrician that the mother’s contractions were arriving at three-minute intervals and that the infant’s heart rate was 140 and regular. The obstetrician was not yet at the hospital, he prescribed several drugs to be administered to the mother over the telephone. One of those prescribed drugs was Demerol, a powerful painkiller.

The obstetrician arrived at the hospital at two in the morning. Her checked the woman and found that she was in her second stage of labor. At that point, the doctor noticed that the contractions had slowed and were four minutes apart. The woman had just been given the Demerol. He noted that the infant was at station -2. Station -2 means that the infant’s head is two centimeters above the pelvic spines that form the entrance to the birth canal. The obstetrician did not order an x-ray to determine if the infant’s head would fit through the woman’s pelvic spines. He ordered a Pitocin drip to speed labor. He testified in court that he had ordered the Pitocin because the labor had slowed from three minutes between contractions, to four minutes between contractions.

There was medical testimony at trial that Pitocin can cause the umbilical cord of the infant to be squeezed by the stronger contractions that it produces which can block the flow of blood and oxygen to the baby. A Nassau County Personal Injury Lawyer the law requires that if a physician prescribes Pitocin during a delivery, they must monitor the mother and child constantly while the drip is in progress. This monitoring is to ensure that the oxygen supply to the baby is not cut off which would cause a birth injury including cerebral palsy. The Pitocin drip in this case was on for more than an hour following the prescription to the actual delivery of the infant. According to the hospital delivery records, the Pitocin immediately increased the labor contractions to between two and three minutes apart and moderate in strength. At 2:30 a.m. the fetal heart rate was 136. All of the medical chart entries regarding this delivery were made by the nurse who stated that she was monitoring the woman every ten minutes, but that she had to leave the room several times to get items that would be needed for the delivery of the child.

At 2:45, the obstetrician left the labor and delivery area and went to the hospital cafeteria. In the cafeteria, he had a conversation with the patient’s husband, who was an anesthesiologist and was scheduled to anesthetize his wife for the delivery if it was required. A Manhattan Personal Injury Lawyer said the obstetrician first testified in court that he was in the cafeteria for only five minutes, he later testified that it could have been upwards of thirty minutes. When he did return to the labor and delivery area, he did not return to the woman’s room as prescribed by law. He testified in court that he monitored her labor from the hallway outside of her room.

At 3:00 a.m., the mother was taken to the delivery room. The Pitocin drip was still going. Her husband administered general anesthesia to her at 3:08 a.m. Everyone involved in the delivery was present in the delivery room for about 15 minutes prior to the child’s delivery. However, no one monitored the heart rate of the infant. The child’s father, who was the anesthesiologist, admitted in court that it was his responsibility monitor the baby’s heart rate so that he could correct any hypoxia that could result from anesthesia. Hypoxia means that the brain is deprived of oxygen which can cause cerebral palsy. At 3:16 a.m. the baby, who was named Hippocrates was delivered in obvious respiratory distress. At one minute following birth, he had no muscle tone, reflexes, or respiration. He was blue in color and his heart rate was 160. His Apgar score at one minute after birth was 3 out of 10.

There was no one in the delivery room with an expertise in infant resuscitation. The obstetrician cut the umbilical cord and turned his attention to delivering the placenta. The infant was left in the care of the nurse and the anesthesiologist. The anesthesiologist waited one minute to take the Apgar score before attempting to suction the baby’s airway and clear it so that the infant could breathe without obstruction. The anesthesiologist opted to use an ambubag to force air into the lungs of the child rather than intubate him. He took the child and put him on his mother’s chest and attempted to bag him while he was on his mother’s chest. Testimony at trial confirmed that bagging the infant does not ensure that any air goes into the child’s lungs, the air can go into the stomach or escape from around the edges of the mask that fits over the baby’s face. It is a much less effective method of getting oxygen directly to the lungs than intubation is.

It is important to note that the placenta and the umbilical cord appeared normal at birth. That means that oxygen depletion to the infant occurred as a result either of compression of the cord due to the Pitocin drip, or lack of oxygen at delivery due to bagging rather than intubation. It should also be considered that both could have been present in this case. The delivery record states that the baby suffered from protracted apnea which means that there was a long time with no respiration. The baby was not breathing. Four minutes after he was born, at 3:20 in the morning, Hippocrates took his first breath. He breathed before that for about two to three minutes according to testimony, but the records to not indicate a breath before that time. The anesthesiologist prescribed a drug called nalline for the baby. Although in court he adamantly denied that he had ever prescribed the drug. The nurse administered the drug, which is used to counteract the effects of Demerol.

In court, the nurse testified that she was the one who suctioned the child and that she had placed the child into a crib and attempted to give him oxygen through a forced pressure tube. She stated that she did not use an ambubag, and that there was no initial response to the pressurized oxygen. After that oxygen was administered, the child began shallow breathing on his own. The notations in the hospital log were made by the nurse and she testified that they were accurate. They described the resuscitation actions according to her testimony and described the infant as flaccid with irregular respiration and no crying. His color improved after the administration of the nalline. His muscle tone was described as apptonic. He demonstrated tremors and she notified the obstetrician who responded to the infant. The nurse testified that she had handled the resuscitation of Hippocrates until she had to leave the room, and the anesthesiologist took over. She was told by the obstetrician to go telephone the pediatrician on call, to respond to the baby.

At about four in the morning, the pediatrician came to the delivery room. His notes on the examination of the little Hippocrates, noted that his cry was weak or absent even after stimuli. His muscle tone was considered poor. His heart beat was regular. His reflexes were poor. His color was fair. He noted in the record that at the time of his examination, the infant was displaying tremors in his lower and upper left extremities that lasted for fifteen to twenty seconds at a time. The pediatrician noticed that the baby was flaring his nose, which indicated to the pediatrician that the child was trying to get more oxygen. The pediatrician noted in the chart in three different places that he believed that the child had suffered from hypoxia or lack of oxygen to his brain. He checked the baby for infections and did not find any. He checked the baby for metabolic imbalance and did not find any that would explain the condition of little Hippocrates.

He ordered that the child be transferred to a different hospital that had an intensive care nursery. The infant was also placed in an incubator under 40% oxygen. He did not order a blood PH test for acidosis. Acidosis is excessive carbon dioxide buildup in the brain. He had noted in his examination notes that one should be performed, but never informed anyone to do it. At five in the morning, the nurse noted in her report that the baby’s respiration was shallow but regular, his color was pink and his cry was weak. The tremors remained the same lasting twenty seconds at a time. The nurse feared for the baby’s life and baptized him. At 5:30 a.m. his tremors were more pronounced. At six in the morning, he began to improve and his color was pink. At 6:10 in the morning, the pediatrician cut off the oxygen and it was not restarted for about an hour. The pediatrician denied ordering that the oxygen be cut off when he testified in court. It was noted that at this time, the tremors were generalized throughout the baby’s body.

At 7:30 the infant was transferred to New York Hospital. The oxygen had been resumed at 7:10 a.m. The final diagnosis that the baby received was generalized tremors brought on by hypoxia. When he arrived at New York Hospital, they diagnosed him with perinatal hypoxia. By April 4, 1979, the infant was diagnosed with athetoid cerebral palsy.

The parents of the infant who are both physicians filed a medical malpractice lawsuit due to the fact that the hospital staff had departed from accepted medical procedures during the delivery of their child. The trial jury found in favor of the parents and awarded them compensation in the amount of $7,500.00. The defendants appealed the verdict because they claimed that some of the theories of negligence that were reported at trial were not supported by the evidence. The Supreme Court agreed and demanded that the verdict be overturned and a new trial ordered.

At Stephen Bilkis & Associates, New York medical malpractice attorneys can help you formulate your claim for recovered damages. We are located in convenient offices throughout New York and the Metropolitan area. A New York birth injury lawyer can evaluate your case and help you make the best decisions for you and your family.

May 31, 2012

Medical Malpractice Case Turns on Issue of Whether Child was Stillborn

In New York, civil lawsuit policy is dictated through case law that determines what if any compensation that a person is entitled to. In the case of an infant who is stillborn due to medical malpractice, the standard of policy is determined by Broadnax v Gonzalez 2 N.Y. 3d 148, 777 N.Y. S 2d 416, 809 N.E. 2d 645 (2004). It states that a mother may recover damages for emotional distress due to a delivery of an infant who is stillborn, or deceased at birth due to medical malpractice.

However, if that same infant is delivered alive and then dies, then the mother is not eligible to recover damages based on emotional distress. She is able to recover for lost support, services, or protection. She may also recover other pecuniary loss from the medical malpractice death of her child. These guidelines are established in Sheppard-Mobley v King, 4 N.Y.3d 627, 797 N.Y.S. 2d 403, 830 N.E. 2d 301 (2005).

Therefore, for a mother whose child is deceased, in order to file a lawsuit, she must know if the child was actually stillborn, or if the child died after taking a breath. A New York Injury Lawyer said that a single breath is proof that the child was born alive. Air in the baby’s lungs is considered proof that the baby was born alive. However, in a case where these lines are blurred, it can become difficult for a parent to know how to proceed. The case must be filed within a set time period of 90 days from the birth of the child. It can be difficult for a mother who has just lost her child to make decisions of this sort in this time frame.

In one such case, the mother filed for both in order to buy time to investigate what actually occurred. When the discussion came to trial, she requested permission from the court to amend her complaint and bill of particulars to encompass the new information that she had discovered. A Queens Personal Injury Lawyer said that information was that the child was stillborn due to medical malpractice and had not taken a breath on its own outside of the womb. The court allowed her to amend her complaint and dismiss her claims for loss of the child’s services, society, comfort, and affection during its lifetime. The claim as it stood before the court encompassed the theory that the child had not drawn a breath unassisted outside of the womb.

The defendants now maintain that the child was born alive and show that the infant was provided with an Apgar score of one at ten minutes after birth. They claim that the Apgar score demonstrates that the child was born alive and that the mother’s claims should be dismissed against them. The mother points to the hospital’s records and her delivery report that state intrauterine death and mother with single stillborn.

Medical experts were presented for both sides. A Staten Island Personal Injury Lawyer said the mother’s expert stated that in his opinion, the fetus died in utero because the placenta detached from the uterine wall. When the placenta detaches, there is no blood flow going to it and the oxygen is cut off to the infant. This lack of nourishment to the infant causes brain shock and death due to brain stem inactivity. He stated that the Apgar score showed no observable activity except for a low heartbeat that he maintains was the result of the resuscitation efforts and did not reflect any actual life outside of the womb.

The court determined that the mother would be allowed to amend her complaint. They determined that there was a triable issue of fact that would cause this case to go to trial, and that the court dismissed all claims associated with the theory that the child had been born alive.


At Stephen Bilkis & Associates, New York birth injury attorneys can help you formulate your claim for recovered damages. We are located in convenient offices throughout New York and the Metropolitan area. A New York birth injury lawyer can examine your case and help you make the best decisions for you and your family.

May 29, 2012

Mother Files Medical Malpractice Suit for Premature Labor

Anytime that a baby suffers a birth injury it is a traumatic experience for everyone involved. Sometimes, a birth injury is an act of medical malpractice. In that case, it is even more traumatic for the family. In one case which occurred at Harlem Hospital Center on October 23, 1997. A woman came into the hospital suffering from symptoms of early onset labor. She was only 28 weeks pregnant. The doctors gave her tocolytics in an attempt to stop her labor. However, the administration of the medication was not successful and her labor continued. The baby boy was born severely premature. The doctors advised the mother that the baby was born with an intestinal condition that required immediate surgery. She permitted the surgery on the baby.

A New York Injury Lawyer said the doctors at Harlem Hospital Center performed a left hemicolectomy and a temporary colostomy. The baby remained in the hospital until January 28, 1998 while he suffered from ongoing problems with his intestines. After being discharged from the hospital, the baby continued to have serious problems with his bowels and on January 8, 1999, the doctors at Harlem Hospital Center performed an anorectal pull through and colostomy closure. The child continued to have problems and continued to be a patient at the hospital off and on through the next several years, until 2001.

In 2001, his mother felt that it was time to get a second opinion because she had begun to doubt that the care that her son was receiving at Harlem was in his best interest. She took him to New York Presbyterian Hospital for an evaluation. At that time the doctors there informed her that the anorectal pull through had been performed improperly. On September 22, 2006, the child underwent intestinal surgery at Presbyterian to correct the damage that they told her had been done at Harlem.

The mother eventually filed two medical malpractice claims against the doctors at Harlem. A Brooklyn Criminal Lawyer said that one was that they failed to stop her premature labor that resulted in the child being delivered too early. Secondly, that the treatment and surgeries that were performed on the child due to his premature birth were conducted improperly so as to cause him undue pain and suffering. Since she filed her motions after the time limit that is determined by law, she had to file a request under General Municipal Law §50-e(1) for an extension to the 90 day limit. In her request for leave to file a late claim, the mother stated that the reason for the delay in filing was due to the fact that she was not aware that there had been medical malpractice involved in the case until the doctors at Presbyterian notified her.

The Court determined that the mother had notice of the possible medical malpractice from the time that she began taking the child to Presbyterian in 2001. However, a Bronx Personal Injury Lawyer said it was not until nine years later that she filed her lawsuit. The court was concerned that if they allowed a nine year old case to go forward that it would pose an undue hardship on the hospitals and doctors to investigate a case so long after the injury. Many if not all of the employees who were present at the procedures are no longer employed by the hospital and they would have to attempt to locate them. The hospital claimed that the inability to locate and present certain witnesses could prejudice a jury against them. The court agreed and determined that the petition is denied in its entirety.


Filing a medical malpractice lawsuit in a timely fashion is critical. Stephen Bilkis & Associates, New York medical malpractice attorneys can help you determine what time constraints are recorded in the statutes. We are located in convenient offices throughout New York and the Metropolitan area. A New York medical malpractice lawyer can review your case and determine if there is a triable issue of fact surrounding the events of your child’s birth.

May 27, 2012

Court Decides of Statute of Limitations Has Run

In September of 1993, a woman entered the delivery room of Nassau County Medical Center to deliver a baby boy. The doctors determined that the woman should have no problem with a vaginal delivery and administered Pitocin to speed up her labor. However, after several hours, it was clear that the birth was not going to be the easy one that the doctors had anticipated.

A New York Injury Lawyer said the child began to show signs of fetal distress and doctors decided to use a vacuum extractor. They made two attempts to deliver the child with the help of the vacuum extractor to no avail. By that time, it was critical that the child be delivered as soon as possible. The doctors used forceps to grasp the child’s head and forcibly pull him into the world. After this traumatic delivery, the baby was shaking and injured. He had a broken clavicle and bruising all over his head and upper body. He weighed eight pounds, three and one half ounces at birth. His Apgar scores were normal with an eight at one minute after birth and a nine at five minutes.

The child himself filed a medical malpractice claim as soon as he reached an age to file. In New York, one of the reasons that a medical malpractice claim is allowed to be filed late is called infancy. That means that the child was not of an age to understand or to file on his own behalf until he was older. This child appeared normal at birth with the exception of the obvious trauma. He maintains that by the time that he was two years old, he had begun to experience epileptic seizures and delayed development as a result of the head trauma that he suffered during the traumatic birth. He states that in 1995, he had an electroencephalogram test to check his brain waves and it came back normal. In 1998 and 1999, his doctor repeated the test and the results showed abnormality. When the child was ten years of age, his counsel sent the hospital notice that they were filing a lawsuit alleging that the child had suffered brain damage because of the hospital’s malpractice at the time of his birth that had resulted in the physical trauma that caused him to suffer from epilepsy. He contends that the size of his mother’s pelvis and the size of his head, should have precluded the use of Pitocin to increase labor. The chances of his mother being able to deliver him without serious intervention was slim if not impossible.

The Court, on the other hand has the discretion in cases of delay to determine if the delay will cause an undue hardship on the defendant to produce witnesses and locate documentary evidence to fight the claim. A Nassau County Personal Injury Lawyer said in this case, the trial court determined that a ten year delay in filing would pose an undue hardship to the hospital in the defense of the action. The plaintiff filed an appeal of the judgment and the Supreme Court upheld the trial court’s decision that ten years was too long of a time to wait to file the claim.

Further, the court reviewed the evidence and decided that when he left the hospital, apart from the broken clavicle, he was healthy and fine. There was no reason for the doctors to be concerned that he would suffer any developmental delays or suffer from epileptic seizures.

Ten years after the birth, it is easier for doctors to look back and determine what could have been done to better protect the child during his delivery. A Suffolk County Personal Injury Lawyer said that in the ten years that passed from the time of his delivery until the time that he filed his malpractice suit, many advances have been made that most likely would have prevented him from suffering during his birth. However, at the time of his birth most of these alternative practices were not available to the doctors.

In New York, a medical malpractice lawsuit must be filed within 90 days in most cases. Stephen Bilkis & Associates, New York medical malpractice attorneys can help you determine what you need to do to remain within time limits that are recorded in the statutes. We are located in convenient offices throughout New York and the Metropolitan area. A New York medical malpractice lawyer can review your case and determine if a lawsuit is possible.

May 26, 2012

Plaintiff Brings Action for Medical Malpractice in Erb's Palsy Case

A woman’s husband worked for a company whose union established a clinic for its members and their dependents. When the woman got pregnant with her first baby, she went to the union’s clinic. The clinic assigned her to an obstetrician who saw her and took care of her during her pregnancy. She gave birth vaginally to a baby boy and her pregnancy and childbirth was uneventful.

A New York Injury Lawyer said for this reason, when she got pregnant with her second baby, she again went to the union’s clinic and was assigned to the same doctor who assisted her first pregnancy. She saw the obstetrician on January 20, 1999 when she was just eight weeks pregnant. The woman was then 35 years old and she did not know that she had high blood pressure. She had six sonograms in total and all were normal.

When the woman was 25 weeks pregnant, the doctor measured the height of the baby and came to the conclusion that the child was too big for its gestational age. A blood test confirmed that the woman had gestational diabetes. Her pregnancy was considered as high rish and she was referred to a specialist who recommended that she be delivered at 39 weeks.

On August 11, 1999, when the woman was just 37 weeks pregnant, she went to see her doctor at the union clinic because fluid was coming out of her vagina. The doctor examined her and found that she was already four centimeters dilated. A Westchester County Personal Injury Lawyer said amniotic fluid was drawn from the woman to determine if her baby’s lungs were mature enough to be delivered. When the tests showed that the baby’s lungs were mature, the woman was admitted to a hospital where the union clinic’s doctor had admitting privileges.

On August 12, 1999, when the woman was already five centimeters dilated, the woman’s bag of waters broke. The doctor saw that although the woman was dilated, her baby had not moved down the vaginal canal. The union clinic doctor injected her with pitocin to assist her labor and to make the baby descend.

Five hours after injecting the pitocin, the woman was moved to the delivery room and started pushing her baby out. The doctor made a cut in her vagina to allow easier passage of the baby’s head. An hour after the woman’s vagina was cut the baby’s head appeared but the baby’s shoulders got stuck.

The doctor did no lengthen the vaginal cut. Instead, they pulled the baby out of the mother. A Suffolk County Personal Injury Lawyer said the baby girl who was nine pounds and two ounces was delivered. Her face was bruised and she had broken ribs. She also suffered from Erb’s palsy.
The woman and her husband sued the union clinic doctor for medical malpractice for he birth injury sustained by the baby. They also sued the union who owned and managed the clinic and the hospital where the woman gave birth.

The union moved for summary judgment asking for the dismissal of the complaint against it stating that the doctor was not an employee of the union but was simply and independent contractor. They also claim that the doctor did not deviate from accepted medical practices when he delivered the baby and that the injury sustained by the baby was the result of the life-saving measures performed by the doctor during the delivery.

The doctor also moved for summary judgment as did the hospital. The hospital claimed that the doctor was not their employee but was an independent private attending physician.
The only question before the court is whether or not the complaint for damages filed by the mother in behalf of her infant daughter should be dismissed.

The Court held that the summary judgment ordered by the trial court and sustained by the County Supreme Court was not proper as there were material issues of fact that had to be tried.

The material questions of fact which have to be tried are: whether the woman’s pelvis was sufficient to deliver a nine-pound baby; whether or not the doctor failed to recognize when the woman was already in active labor; whether or not the doctor failed to diagnose the adequacy of the woman’s pelvis; whether or not the doctor failed to recognize that the baby had stopped descending; whether or not the doctor failed to deliver the baby by cesarean section.
The Court found that the trial court correctly granted the summary judgment in favor of the hospital but that it erred in granting the summary judgment in favor of the union clinic. The Court ruled that it was premature. The union clinic may yet be found to be liable depending upon the evidence on the material fact. The basis of the union clinic’s liability is its relationship with the doctor: the doctor is considered an agent of the union clinic.

Are you like the woman here whose baby sustained a birth injury due to the malpractice of your obstetrician? Are you thinking of filing a medical malpractice suit? Call the New York Birth Injury Lawyers of Stephen Bilkis and Associates. They can listen to the facts of your case and assess if a medical malpractice suit is viable. The New York City Birth Injury Lawyers can help you gather evidence and present them in court. The NYC Birth Injury attorneys represent you not only to argue in court but also to negotiate any settlement. Call Stephen Bilkis and Associates today and speak to their NY Birth injury attorneys.

May 25, 2012

Medical Malpractice Action Barred by the Statute of Limitations

In 1980, plaintiff had a copper 7 (CU-7) IUD inserted into her uterus by a physician who is not a party to the action. In January 1982, plaintiff came under the care of defendant Medical Group ("Medical Group"). Later that year, plaintiff and her husband decided to have the IUD removed so that they could have children; plaintiff stated that she wanted to give her son, a brother or a sister.

A New York Injury Lawyer said that on or about 5 November 1982, plaintiff was examined by defendant, an employee of The Medical Group. The defendant conducted an internal examination of plaintiff and, when he did not detect the IUD, ordered x-rays of plaintiff's lower abdomen. The defendant reported, after the x-ray was conducted, that no intrauterine device is noted in the central portion of the pelvic cavity.

On 17 December 1982, plaintiff returned to the Medical Group and was informed by defendant that no IUD was detected by the x-rays and that she could attempt to become pregnant. The records of the Medical Group for that date bore the notation, "no evidence of IUD in pelvis or abdomen. Plan will attempt pregnancy." Although plaintiff tried to conceive, her efforts were fruitless.

In April 1986, plaintiff began to experience heavy, intermittent vaginal bleeding, which continued for several months.

On 24 July 1986, plaintiff sought medical treatment from another doctor, who performed a sonogram. The sonogram revealed that the subject IUD was not only present, but was, in fact, embedded in the wall of plaintiff's uterus. Plaintiff had to be admitted to a Hospital for surgical removal of the IUD. Among the post-operative findings was the notation that no string from the IUD was visible in the cervix.

Seven months later, plaintiff commenced a medical malpractice action; a personal injury action for the injuries suffered.

Defendants asserted the affirmative defense that the action was not brought within the applicable statute of limitations.

Plaintiffs moved to strike the affirmative defense raised.

Defendants then cross-moved for a dismissal of the action on the ground of untimely action; filed after the statute of limitations ran.

A Nassau County Peronal Injury Lawyer said that although the IAS court granted defendants' cross-motion for dismissal, it unequivocally acknowledged, "it's true that plaintiff had no way of knowing the IUD was there until five years later when she began to have some physical problems and then a sonogram revealed the device. The court added that the only basis upon which it was dismissing plaintiffs' action, absent a First Department ruling, was its belief that it was constrained to follow the ruling of a sister Appellate Division which has ruled on the subject, referring to the Second Department decision.

The instant appeal followed.

The Ruling:

While there is respectable authority on the subject matter of the case, the court is not bound thereby, and chooses not to follow it since accrual of the Statute of Limitations should not depend on the chance circumstance that the malpractice alleged happens to involve an unwanted or unneeded fixation device.

Suppose Dr. A examines a patient and negligently fails to discover a malignant tumor or brain injury. Under CPLR 214-a, his liability for that mistaken diagnosis would be barred upon the expiration of two years and six months measured from the time of the misdiagnosis. A Manhattan Personal Injury Lawyer said suppose further, in an adjacent examination room, Dr. B negligently fails to discover an IUD device previously inserted in the patient several years earlier by another doctor.

As the court sees it, the negligence of both the aforesaid doctors is the same, namely, one of misdiagnosis, and ought to be treated the same, notwithstanding that the IUD might in common parlance be considered "foreign" to the body and the tumor.

Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so, but not apply when a doctor negligently fails to remove a tumor after undertaking to do so?

Such cases, all decided by the Second Department, are not easy to reconcile. In creating the foreign object exception to the general time of commission accrual rule, expressly excluded from the scope of the exception claims implicating professional diagnostic judgment or discretion. Such being the nature of the alleged malpractice here, the claim does not fit within the exception.

Whether the exception, narrow as it is, strikes a proper balance between the patient's interest in compensation and the doctor's interest in repose is essentially a question of public policy inappropriate for consideration by an intermediate appellate court; grim logic, though it may be to say that a patient must commence an action before she even knows she has one to commence, it is not for us to depart further from the traditional view of the Statute of Limitations. All the more should we hesitate to depart further from the traditional view considering that the Court of Appeals has twice taken occasion to say that the Legislature, in codifying the foreign object exception in the manner in which it did, has expressed the intent that it must not be broadened beyond its limits.

Accordingly, the order which dismissed the action as barred by the Statute of Limitations is affirmed.

A skilled New York Personal Injury Lawyer is the person needed in situations similar to the above. Contact Stephen Bilkis & Associates for that highly trained lawyer. Have a free consultation with our NYC Medical Malpractice Lawyers. Discuss what legal remedies are available under your circumstances as soon as practicable to avoid claims barred by the Statute of Limitations.

May 24, 2012

Woman Sues Obstetrician for Medical Malpractice

The Facts:

A New York Injury Lawyer said that on 30 November 1982, the primary plaintiff began to have contractions. The next day, she visited her obstetrician (the “doctor”) who told her to go home and wait. At approximately 5:30 to 5:45 a.m. on 2 December 1982, she ruptured her membranes and her doctor was called. He then advised her to go to a hospital where he would meet her. She was admitted at 8:00 a.m., but the doctor never arrived. A hospital doctor advised the plaintiff that the baby was dead in utero but that nothing could be done until her doctor arrived because she was a private patient. Hours later, after 12:30 p.m., word came that another doctor, the doctor’s partner, would be performing a caesarean. Thereafter, the stillborn child was in fact taken by caesarean.

The plaintiff and her husband commenced a medical malpractice action against the obstetrician and his company, the obstetrician’s partner and the Hospital where the caesarian was performed; for the personal injuries or birth injuries suffered.

The complaint contains three (3) causes of action: First, on behalf of the primary plaintiff and alleges malpractice in that the plaintiff gave birth to a dead baby, had to have a caesarean, was rendered emotionally sick and disabled and was caused to suffer both emotional and physical pain and injury; Second and Third causes of action are on behalf of the derivative plaintiff and seeks recovery by the second cause of action for the plaintiff husband's loss of consortium and by the third cause of action for the emotional upset he suffered.

The primary plaintiff avers that during pregnancy, her physician failed to diagnose her pre-eclamptic condition; that during the period of delay, from her arrival at the hospital to the caesarian operation, specifically past 8:00 a.m., plaintiff suffered from great physical pain.

Defendants now move for an order dismissing plaintiffs' complaint and granting them summary judgment. Defendants, citing various cases, contend that since there is no dispute that the infant was stillborn and absent independent physical injuries to the mother, she cannot recover damages for emotional and psychological harm which results from the stillbirth. Hence, a Bronx Personal Injury Lawyer said the primary plaintiff's action and the derivative actions based thereon should be dismissed.

The Issue:

The issue is whether or not the plaintiffs have presented any physical injuries unrelated to the stillbirth which are actionable.

The Ruling:

It has been repeatedly held that, even if the death of the fetus in utero was caused by a defendant's wrongful acts, absent an independent physical injury to the mother she may not recover for emotional and psychic harm as a result of a stillborn birth. With respect to the independent physical injury, the injuries must be other than the things attendant to childbirth and must be a cause of the stillbirth in order to be actionable.

An examination of plaintiffs' complaint reveals that while alleging physical injury, it is essentially seeking recovery for emotional injuries caused by a stillbirth. Moreover, nowhere do plaintiffs allege a physical injury to the mother having a causal connection to the stillbirth. To the extent that any other injuries are alleged, the matters are so intertwined as to be indivisible from the stillbirth itself. Hence, the court concludes that the complaint in its present form must be dismissed.

The plaintiffs’ allegation that because of the doctor’s tardiness in arriving at the hospital, she was kept in needless pain for several hours awaiting the caesarean delivery of a fetus, already known to be dead, is a separate distinct physical injury actionable along with any suffering claimed to have been sustained as a result of negligent pre-natal care.

Here, there can be no question that the caesarean itself was another aspect of the childbirth procedure and thus cannot serve as the basis for recovery. Hours of delay, because of a doctor's tardiness, cannot, however, be viewed as merely another aspect of the childbirth procedure. A Brooklyn Personal Injury Lawyer said this claim of physical injury with obvious concomitant pain and suffering distinguishes these allegations of the plaintiff mother from the other court rulings.

As far as the other claims not relating to the stillbirth are concerned, a physician is not absolved from malpractice liability merely because the law does not permit an action for every injury, i.e., the stillbirth. It is obvious that the law does not forbid a woman who has a stillborn child, through malpractice, to suffer emotional injuries. It merely holds that it will not permit recovery unless that psychic harm is coupled with an independent physical injury.

On the other hand, the law does not state that merely because there is a stillbirth that recovery for other physical injuries is prohibited. Therefore, and for example, if this plaintiff can establish that her condition of pre-eclampsia was mis-diagnosed and it resulted in damage to her, then she may very well be entitled to a recovery even if her child had been born well and healthy.

Accordingly, the defendants' motion should be granted to the extent of striking plaintiffs' complaint in its present form; plaintiffs are granted leave to serve an amended complaint limited to alleging independent physical injuries since, by their affidavit in opposition to the motion coupled with the allegation of physical injury in their complaint, have set forth an actionable wrong.

The New York Medical Malpractice Attorneys at Stephen Bilkis & Associates are offering free legal consultations. Contact us now and have a chat with an NY Birth Injury Lawyer, among others, from our firm. Our legal experts are the best in their profession. The services we offer are of high quality from our dedicated and highly competent legal professionals.

May 22, 2012

Woman Sues Man for Becoming Pregnant

A 35-year-old divorced woman and a 58-year-old married man met and became lovers sometime in the autumn of 1981. Prior to their sexual intercourse, both of them discussed the use of contraception since it is presumed that neither party desired to have a child. The woman, who had originally planned to use a diaphragm or the rhythm method, was told not to worry by the man. A New York Injury Lawyer said the man further told the woman that he was sterile as a result of a medical condition. His sterility was caused by a medical condition known as hydrocele. Based on records, a hydrocele is a collection of fluid which usually forms a mass around the testes. The woman believed him and in reliance on his statement, she did not use any contraceptive method when having sexual intercourse with him. Consequently, the woman became pregnant and she decided to have an abortion.

The woman sued the man after becoming pregnant to recover the costs of an abortion incurred by her and other related expenses. The woman demands damages in the amount of $1,500, the jurisdictional limit of the court. Each item of damage alleged to have been acquired by the woman has been examined and computed. The remedy afforded an injured party in negligence is designed to place the injured party in the position that he would have occupied but for the negligence of the accused man.

At first, the woman requests reimbursement for the costs of the abortion in the amount of $200. She has provided the court with a hospital bill. The amount is reasonable and the abortion is directly attributable to the negligence of the man. The woman is entitled to recover the said amount. Similarly, she should recover the sum of $4.35 expended for taxi fare to the hospital on the day on which the abortion was performed. The woman’s next request was a $500, representing ten days loss of work at $50 per day on account of morning sickness prior to the abortion and physical discomfort as a result of the abortion. In support, the woman submits an income statement indicating that for the week she worked only 7 1/2 hours at a total salary of $52.50. She is entitled to recover for four days of lost work or $210. Finally, the woman requests recovery for pain and suffering occasioned as a result of becoming pregnant and having an abortion.

Consequently, the man testified in court that since he is sterile, the woman's pregnancy must have resulted from sexual intercourse with other man. A Suffolk County Personal Injury Lawyer said the woman vigorously denied the accusation stating that she had not had sexual relations with any man other than the man during the time period when conception occurred. The woman contends that the man's false assertion as to the state of his fertility is a fraudulent misrepresentation.

Based on records, to establish fraud there must be a representation of fact, which is either untrue or known to be untrue or recklessly made, and which is offered to deceive the other party and to induce him to act upon it, causing injury. The essential elements of a fraud action include material misrepresentation of existing fact, reliance and causation. The claims of fraud must be established by clear and convincing evidence.

The man's statement to the woman that he was sterile was a material misrepresentation of fact. An NYC Personal Injury Lawyer said the woman's reliance on the statement has been established, since the court believe her testimony that she would have used a diaphragm in the absence of the statement of the man. Considering such factors as the length of time the parties had known one another, the regularity with which they saw each other, the degree of intimacy between them and the seriousness to the woman of the issue of birth control and of an unwanted pregnancy, the court hold that she was entitled to trust the man's statement. The woman’s reliance was reasonable and justified.

Accordingly, the hydrocele condition of the man does not generally cause sterility in men. It indicates in research that hydrocele and afflictions similar to it may be a secondary symptom of other medical conditions which could potentially affect a man's fertility. However, there is nothing in the record to indicate that the man was suffering from any other medical disorder which might affect his fertility.

The failure to use any birth control during sexual intercourse definitely increased the risk that the woman would become pregnant, which is what happened. The substantial increase in the risk that a foreseeable event would occur is sufficient to establish adjacent cause. While it is true that the alternative methods of birth control which the woman would have used had not relied upon the man's misrepresentation are not one hundred percent effective. Those methods are far superior to sexual intercourse without the use of any contraception. As a result, the remote chance of the pregnancy might have resulted in any event and it is not sufficient to deny the woman’s recovery.

Even if the woman sustained her burden of proving a material misrepresentation, reasonable reliance and causation of the resultant injury, she has not shown by clear and convincing evidence that the man possessed the state of mind that is required for a finding of fraud and deceit.

The man had a duty to take further steps to ascertain the truth regarding his condition or instead to use contraceptives. He did not and it is the basis for imposing liability for the damages incurred by the woman which were proximately caused by his negligence.
The woman testified that she was emotionally distressed as a result of becoming pregnant, having an abortion and her relationship had ended. The woman further sought professional psychological help. The woman didn’t file any claim for the reimbursement for the cost of the therapy sessions. If the woman’s distress was attributable to her emotional upset from the pregnancy and abortion, and not from external causes, damages therefore may be awarded.
The woman testified that part of her pain and suffering resulted from the deterioration in her relationship with the man subsequent to her pregnancy and abortion. She would be alleging that the man's negligence which precipitated her pregnancy also proximately caused their affair to end. The court didn’t recognize the allegation because there are many factors in a romantic relationship that make cause and effect incomprehensible. The woman has failed to prove that the man's negligence was the legal cause of her suffering. The affection and love are often transitory and mercurial. This may be stated in terms of the tort principle of assumption of risk on which one who enters a love relationship assumes the risk that the feelings and emotions of the other party may change. People are not bound by an implied contract or by a legal duty to maintain a consistency of feelings or emotions to a present lover. The conclusion strengthened by the abolition of reasons of action in the state for alienation of affection, criminal conversation, seduction and breach of contract to marry.

After the proceeding, the woman is entitled to $200 for the cost of the abortion, $4.35 for transportation, $210 for loss of earnings, and $150 for pain and suffering--a total of $564.35. The judgment for the woman shall be entered in the sum of $564.35.

Getting pregnant is a very difficult situation for any woman. A lot of physical complications could take place aside from the fact that your life can be at risk during the delivery. If you experience medical malpractice on the hands of your physician or other health practitioner and you want to demand for damages, call the NY Medical Malpractice Attorneys. If injury related matters happened, the NY Injury Attorneys or NY Birth Injury Accident Attorneys at Stephen Bilkis and Associates can provide you outstanding legal service and representation.

May 21, 2012

Woman Sues for Medical Malpractice Due to Recalled IUD

A woman together with her husband sued her prior physician for alleged medical malpractice in insertion of an intrauterine device (IUD), a birth control device. The IUD was recalled at the medical level by the federal food and drug administration prior to the date of insertion. The couple also joined in this action as party opponents of both the developer and the distributor of the IUD.

Consequently, the physician moved to dismiss the legal action filed against him. The physician further contends that he inserted the IUD, prior to the recall, that regardless of when the device was inserted, the three year law of limitations has long since run in either event, since the alleged medical malpractice occurred at the time of insertion.

A New York Injury Lawyer said the woman in opposition argues that the physician never advised her at any time that the device has been recalled or should be removed. She had no way of knowing that the IUD was causing injury to her until her severe infection. According to the complaint, the physician advised the woman at the time of insertion that the IUD would be safe and effective and would be good for a period of at least 5 to 6 years. However, the woman began to experience severe radiating abdominal pain, infection, discharge and temperature, for which she was admitted to the hospital. During her hospitalization she had to undergo surgery, including a complete hysterectomy and surgical removal of the IUD, all as a result of the unsafe birth control device.

The couple have attached as an exhibit to their opposing papers the F.D.A. news release listing complications resulted from continued use of the birth control device, including the possibility that the device may have to be removed surgically, and warns that the chances of complications increase the longer the device is left in the body. A Westchester County Personal Injury Lawyer said the couple also submitted a copy of part of the pre-trial examination of the physician, in which he states that he notified some of his patients regarding the continued use of said IUD, following the F.D.A. directive, of which he was apparently aware. The woman denies receiving any such notification.

The couple’s allegations of medical malpractice in twofold includes that the physician was negligent in inserting the IUD when it had already allegedly been recalled and that he was negligent in later failing to inform the woman that the IUD had been recalled and should be removed.

Based on records, the failure to inform was a continuing omission on the part of the physician at which existed up to the time that the couple learned that the IUD had been recalled and/or should be removed. A Suffolk County Personal Injury Lawyer said the couple would have had two and one-half years from the date of the omission to bring their action. The complaint was served and the motion to dismiss the reason of action which relates to said failure to inform is denied.

With regards the original insertion of the IUD, the physician proceed under the theory that the IUD constituted a foreign object negligently inserted and/or left in the woman's body, so that the law of limitations did not begin to run until the couple had or should have reasonably discovered the medical malpractice. Under the said theory, the applicable law of limitations would be one year from the date of reasonable discovery. There is no claim by the physician that, if the one year is applicable, the action was not brought within the permissible time period.

Consequently, the court finds the motion of the physician to dismiss is accordingly denied without prejudice to assert and prove his affirmative defense.

The team of medical group works hand-in-hand with modern technology to help in the discovery of things that could improve the lives of people but sometimes it comes with a price. If you are in need of legal assistance, contact Stephen Bilkis and Associates for guidance.

May 20, 2012

Defendant Contends Abdominal Surgery Resulted in Medical Malpractice Action

Medical malpractice can alter a person’s life. In some cases, the damage that is done is so severe that it renders the person’s quality of life unbearable. In one such case, a woman sought medical care because she was experiencing severe abdominal pain. The pain was so severe that it drove her to seek immediate correction of the problem. That put her at North Shore University Hospital at forest Hills in August of 1999. She was diagnosed with an 8 cm sized cyst on one ovary. Her initial hospitalization for removal of the cyst was on the 19th. She remained in the hospital following the removal of the cyst until the 23rd. On the 25th, she was seen by her doctor in his office. At that time, the doctor readmitted her into the hospital. She was suffering from constipation and abdominal pain. She underwent a CAT scan which revealed that she had a pocket of fluid built up in her pelvic cavity. It was drained, and discovered to be urine. At that point, the doctor called in a Urologist to see her. The Urologist put in a catheter from her left kidney to the outside of her body because there was an obstruction located in the left ureter. The woman was discharged again from the hospital on September 4, 1999.

A New York Injury Lawyer said the woman continued to suffer from abdominal pain and decided to go to a different urologist. This time, she went to Queens-Long Island Medical Group, where she was seen by a different doctor on November 17, 1999. The doctor cleaned out the catheter and her pain subsided. He told her that she needed to have exploratory surgery done in order to determine what was causing the blockage of the left ureter and to repair it. He told her that she could wait to have the procedure done until after the holidays if she desired.

In early January, the woman had to go to the emergency room where she was readmitted again. This time she had an infection at the site of the catheterization. She was given antibiotics and on January 10, of 2000, she had the exploratory surgery that the urologist had recommended. During this procedure, the surgeon discovered that there was fibrotic tissue surrounding her left ureter. He performed a procedure to reroute the urine around the obstruction and into the bladder. The woman was in the intensive care unit until January 14, 2000. The woman was not released from the hospital following this procedure until January 22, 2000.

At the end of January, the woman returned to the urologist for a post-operative visit. At that time, the doctor ordered a renal scan that was scheduled for February 7, 2000. That test showed that the woman was experiencing right renal function impairment. On February 9, 2000, she was back in the hospital so that the urologist could determine what was wrong with the right ureter. The doctors informed her that this time, her right ureter was obstructed, and that the doctors thought that it was from fibrotic material and granulation of the tissues. A catheter was inserted to bypass the right side occlusion and the woman was released from the hospital again.

On May 12, 2000, the woman was admitted to the hospital again, and this time the urologist performed an exploratory surgery on the right ureter. He discovered that the right ureter was obstructed and he resected it. The woman was discharged on May 15, 2000. On the 22cnd, she reported to the surgeon’s office to have the staples removed from the surgical incision. He x-rayed the area and told her to return in one month to have the stent that had been placed during the surgery, removed. On July 13th the stent was removed and the woman was given a renal scan.

Thereafter, the woman filed a medical malpractice suit against the first doctor. She contends that during the first procedure that was performed in the summer of 1999, the surgeon accidently severed her left ureter. A Bronx Personal Injury Lawyer said this caused urine to fill her abdominal cavity and resulted in the following year of surgeries and painful treatments. In order to prove a medical malpractice case, the victim must show that the doctor involved deviated from standard medical treatments. In this case, the doctor stated that he did not deviate from good and accepted standards of medical treatment when he treated the woman.

The doctor stated that prior to her surgery, she was advised that there were known complications that could result from this type of surgery. He stated that one of the known complications was damage to the ureters and problems with renal function. He maintains that he did not accidentally sever the left ureter. He states that he located and protected it while he conducted the rest of the surgery. A Brooklyn Personal Injury Lawyer said that he stated that she was advised of this known risk to surgery and that he did not deviate from acceptable medical practices.

The woman maintains that there was never any blockage of the left ureter. She claims that it was accidentally cut during the first surgery. She claims that the urine in her abdominal cavity caused the fibrotic tissue to develop. That fibrotic tissue then damaged her right ureter. She contends that failure to properly isolate and protect the left ureter during the initial surgical procedure was the ultimate cause of the remaining difficulties. Both sides brought in numerous experts to expound upon these theories. The woman had included not just the first surgeon in her lawsuit, but also the hospital and the urologist that she was sent to by the first surgeon. During the course of the lawsuit, the hospital and the urologist filed motions requesting that summary judgment be granted in their favor to release them from any liability associated with the actions of the first doctor.

The court determined that the hospital and the urologist could not be held liable for the actions of the first doctor. Their requests for summary judgment in this case were granted and their cases were severed from that of the first doctor. The court, however, determined that the first doctor may have severed the ureter during the surgery. Because this question presents a triable issue of fact, the remaining case against the first doctor is sent forward for trial. The woman maintained that the doctor should have at the very least, identified his error and corrected it prior to releasing her from the hospital and the court agreed.

It is possible that had the first doctor tested the intactness of the left ureter prior to releasing the woman from the hospital, that the remaining damage would not have occurred. Medical malpractice situations are without question life changing. This woman’s case is an example of how one minor slip in a surgical procedure can have life changing consequences.


In New York, the complainant of a medical malpractice lawsuit is responsible for providing evidence to support their claim. The burden of proof in a medical malpractice claim is the responsibility of the complainant. Stephen Bilkis & Associates, New York medical malpractice attorneys can help you determine what you need to do to clarify your claims. We are located in convenient offices throughout New York and the Metropolitan area. A New York medical malpractice lawyer can review your case and determine if a lawsuit is possible.

May 14, 2012

Plaintiff Sues for Erroneous Medical Advice

In June 1969, a woman gave birth to a baby but the baby survived only for five hours. The baby had polycystic kidney disease. This is a genetic and hereditary disease but the couple did not know this at the time of the birth of their first baby. After their first baby was born and soon after the baby died, the woman and her husband spoke to the obstetricians who took care of her during her first pregnancy.

A New York Injury Lawyer said the couple asked the obstetricians plainly if the woman gets pregnant again, would their baby also have the same disease that their first baby died of. The doctors plainly told the couple that the chance that their next baby would have the same polycystic kidney disease was practically zero. The couple relied on this advice by the obstetricians and so the woman conceived soon after.

When the woman gave birth in July 1970, their baby girl was delivered by the same obstetricians. The baby girl also had polycystic kidney disease. The second baby, however, survived for two years suffering much pain before finally succumbing to death from the same polycystic disease.

After their baby died, the couple sued the obstetricians for medical malpractice, stating that their medical advice was erroneous and this caused not only the wrongful life of their daughter but also her painful existence for two years and her death. They also sued to reimburse their medical expenses. They also sued the obstetricians for the personal pain and suffering suffered by the couple.

The couple alleged that the obstetricians were negligent in giving erroneous medical advice. They should have known that polycystic kidney disease was genetic, hereditary and fatal. The couple alleged that they were reckless and heedless; totally disregarding the medical knowledge they should have known.

The trial court dismissed the causes of action for the couple’s emotional distress and for fraud. But the trial court specifically preserved the causes of action for the wrongful life of the child , the reimbursement of medical expenses and the medical malpractice of the obstetricians that was given to the parents.

The couple did not appeal the dismissal of these causes of action. It was the obstetricians who appealed: they appealed the preservation by the trial court of the other causes of action in the complaint especially those for the pain and suffering of the parents consequent to the wrong medical advice given by the obstetricians to them.

The Supreme Court upheld the preservation by the trial court of these causes of action.
The Court noted that during the deliberations of the Court on this case, some who were in the majority were afraid that upholding the preservation of these causes of action would impose on obstetricians the additional duty of being genetic counselors or the duty to insure that every newborn delivered by them would be healthy. A Bronx Personal Injury Lawyer said they were also afraid that the concept of damages will be extended beyond manageable limits.

The Court however ruled that when the negligence of the obstetrician is directly responsible for the physical injury to another, there is no doubt but that the person who was injured can recover damages not only for the physical injury sustained but also for the mental and emotional suffering they suffered consequent to the wrongful act.

Here, the obstetricians were negligent. They gave incorrect and inaccurate medical advice. They gave the advice precipitately without first checking actual medical facts so that they can advice the parents. The woman was the patient of these obstetricians and they owed her a direct duty to make sure that they gave her correct medical information. The woman relied upon the advice given to her by the obstetricians.

Thus, it was established that the obstetricians owed a duty to the mother; they were negligent in performing the duty; the mother suffered injury from the negligence of the obstetricians. A Brooklyn Personal Injury Lawyer said the emotional and mental distress that comes with the injury she suffered must be compensated for in damages.

A New York City Medical Malpractice Attorney must prove negligence on the part of the doctor being sued. In the alternative, a NYC Medical Malpractice lawyer must prove that the doctor being sued deviated from accepted medical practice. A NY Medical Malpractice lawyer must also prove that the deviation from accepted medical practice directly caused the injury sustained.

May 11, 2012

Plaintiff Contends Aggravated Harrassment

The plaintiffs in the case are the People of the State of New York. The defendant in the case is Nicolas Pierre Louis.

Plaintiff Argument

The plaintiffs in the case, the People of the State of New York offer a deposition in the case for aggravated harassment by the defendant. A New York Injury Lawyer said the plaintiff states that in between the dates of February 22, 2010 through April of 2010, while employed by the Nassau County District Attorney’s Office, as the Assistant Defensive Attorney, I received a number of voice mails from the defendant, Nicolas Pierre – Louis. The voice mails consisted of screaming, yelling, and the use of profanity. Each of the voice mails are both alarming and annoying, filled with profanity and threats as well as offensive comments. These recordings caused me to fear for both my safety and the safety of one of my co-workers as well.

Defendant argument

The defendant makes the argument that while his statements on the recordings may be both offensive and vulgar, they are protected constitutionally through the right to free speech, under the First Amendment of the Constitution of the United States of America. He states that because of his rights under the first amendment, there is no basis for the criminal charge that the plaintiff is seeking.

A Bronx Personal Injury Lawyer said the defendant argues that though the defendant's statements may be vulgar and offensive, they are constitutionally protected speech and therefore should not form the basis of a criminal charge.

Case Discussion

Over the years, the courts have sought to define areas where free speech is justifiable. There have been many cases throughout the years where the First Amendment right of the freedom of speech has been argued. Cases that have been in favor of the plaintiffs were the direct result of the defendant speaking in a manner that is intended to induce lawless actions and is likely to incite or produce these types of actions. Any type of speech in this manner is not protected by the first amendment. Additionally, if the words used by an individual can be deemed as threatening or harassing in nature and the make the other individual feel truly threatened, the protection of free speech is void. However, the First Amendment does protect individuals from being discriminated against by the government by not allowing the government to proscribe speech or expressive conduct simply because they disapprove of the ideas that are being expressed.

Dismissal Argument

After reviewing the facts of the case, including the supporting deposition as given by the plaintiff, which contains the statements that were made by the defendant, the court has decided that while the statements made by the defendant were in fact vituperative and vulgar, they do not rise to the level of “fighting words” as described by the plaintiffs. A Brooklyn Personal Injury Lawyer said the statements also do not rise to the level of being a true threat. While the defendant does use a number of derisive terms to describe the plaintiff the threats seem to be confined to having the ADA fired.

If you have a legal issue, whether it involves a car accident, medical malpractice mistake or a construction accident, call Stephen Bilkis and Associates for guidance. We will provide you with a free consultation and ensure that your rights are protected.

May 5, 2012

Dog Owner Seeks Damages for Animal to Animal Attack

A coonhound mix dog attacked another dog. The owners of both dogs were neighbors residing in a side-by-side duplex. One day, the owner of the coonhound mix went out to tie up her dog in the back yard however her dog got away and attacked the complainant who was in the back yard of the duplex at that time. The complainant were not injured and managed to get away from the dog. A New York Injury Lawyer said the coonhound mix then ran around to the front of the house of the complainant’s side, where the complainant’s roommate was sitting on the porch. The coonhound mix proceeded to chase that individual into the front door of the complainant’s residence. When they got inside, the coonhound mix attacked a little dog causing life threatening injuries to it. The harm acquired by the little dog required surgery and significant follow-up veterinary care. The bills generated by the said attack were submitted to the court.

The complainant sued the owner of the coonhound mix and seeks reimbursement for veterinary bills acquired as a result of the injuries sustained by their dog. The complainant testified that she was not aware of any violent tendency of the coonhound mix nor had she ever seen the coonhound mix dog attack another animal. The facts were confirmed by the owner of the coonhound mix. The owner of the coonhound adopted the dog from a farm, which is operated by the humane society about a year before the attack. In addition, the owner of the coonhound mix presents evidence through a letter from the farm, which stated that based on paper work and conversations with staff during the time the dog was at the farm, the staff did not observe any aggression towards other dogs. The owner of the coonhound mix also testify that since she had a baby, the behavior of the dog changed in which she observed him bark and growl from time to time. She further testified that the dog was not very obedient.

Based on records, the state recognizes a reason of action which imposes strict liability or no proof of negligence necessary upon owners for injuries inflicted by their violent dogs, the owners which have knowledge thereof and viciousness being defined as prior bites and mischievous tendency. A Staten Island Personal Injury Lawyer said in common law negligence, the instant case of the owner of the coonhound mix failed to maintain control of their dog. As to the testimony indicated, the court stated that there is no merit to the contention of the complainant that she may assert a common law negligence reason for action against the owner of coonhound based upon the failure to secure the dog properly, without having to prove that the dog had violent tendencies of which the owner was aware. Liability is not dependent upon proof of negligence in the manner of keeping or confining the animal, but is predicated upon the owner's keeping of the animal, despite his knowledge of the animal's violent tendencies.
The court finds that the case conflict, between the substantive law, as established by the case law defining the liability of a dog owner or custodian under theories of strict liability and common law negligence and the concept of substantial justice, is resolved by the dangerous dog provisions of the agriculture and markets law.

In the instant legal action filed, the complainant established that the harm sustained by their dog, were caused by the coonhound mix. A Suffolk County Criminal Lawyer said the complainant further established that the veterinary bills generated by the attack were in the amount of $1,167.95. For such reason, the court finds that the owner of the coonhound mix is liable to the complainant in accordance to agriculture and markets law. The decision shall enter in favor of the complainants and against the owner of the coonhound.

Attacks from either another person or an animal would cause great amount of distress. When you become a victim of an attack and would want to be represented by effective lawyers, consult a NY Dog Attack Attorney. Whether you have been involved in a dog attack, premises liability or a medical malpractice action, contact Stephen Bilkis and Associates for a free consultation.

May 3, 2012

Defendant Sues for Medical Malpractice in Death of Infant

A woman first came to see the obstetrician on October 14, 2004. She was told that she was estimated to deliver around May 29, 2005. On her first visit, her blood pressure was 100/60. Her first sonogram showed that the size of the fetus was consistent with the due date. But later sonograms showed that the fetus was larger than its gestational age.

A New York Injury Lawyer said by the middle of the month of May, the woman had edema of the hands and feet, her urine had traces of protein and she reported spotting in her vision. On June 6, she reported shivering and on June 7, she reported that she did not feel any heartbeat.

The woman still had not given birth by June 8, 2005 but when she felt tightness in her abdomen and saw blood on her underpants, she went to the hospital. She was noted to have contractions and was placed on a fetal monitor. She was found to only be one to two centimeters dilated.
Later while in the labor room, the fetal heartbeat decreased. The doctor ruptured the membranes and thick meconium was noted. The baby was delivered by cesarean section. When he came out, there was no heartbeat for the first ten minutes of his life. On the fifteenth minute, a faint heartbeat was noted.

The baby was transferred to a neonatal intensive care unit. The doctors there diagnosed the child to have meconium aspiration syndrome, metabolic acidosis, pulmonary hypertension, seizure activity, hypoxic ischemic encephalopathy and anemia. On June 12, when no improvement was noted in the baby’s condition, treatment was withdrawn: the baby was taken off the ventilator and he was pronounced dead at 4:00 p.m.

The mother sued for medical malpractice against the obstetrician who failed to deliver her baby even when she was already overdue. She sued for her own emotional distress and pain at the death of her fetus. But then the mother sued also as the legal representative of her son’s estate claiming that since he lived for those few days, he should be considered alive and thus, his estate can sue for his wrongful death due to the medical malpractice and negligence of the obstetrician who delivered him and of the hospital staff who failed to note that the baby was already in distress and should have been immediately delivered via cesarean section.

The obstetrician and the hospital staff filed motions for summary judgment asking for the dismissal of the complaint. A Bronx Personal Injury Lawyer said they produced the affidavits of two expert witnesses who both testified that the obstetrician and the hospital did not deviate from any accepted medical practice. They both affirmed that the treatment of the woman and of the baby was well within the standard of care prescribed by the medical profession. They also both affirmed that there was no way to predict or prevent fetal hemorrhage. The injuries and subsequent death of the baby was not caused by any deviation from good and accepted medical practice by the doctor or the hospital staff.

The two expert witnesses for the defendants differed in their assessment of whether or not the child was stillborn or born dead. A Brooklyn Personal Injury Lawyer said that one opined that the fetus had a heartbeat while still inside the uterus. It had a faint heartbeat that was not immediately noted.

The expert witness of the woman stated that the fetus was not born alive because it had no signs of life when it was completely expelled from the mother.

The Court that the motion for summary judgment should be denied when there exists any material issue of fact that must be tried. Here, the issue of whether the child was born dead or alive must be tried. On this issue hinges the fate of the cause of action of the child’s estate. If the child were born alive, then the cause of action for wrongful death filed by the child’s estate is legally viable. But if the child were born dead, then the mother’s own individual cause of action for emotional distress from her child’s stillbirth cannot be sustained as legally compensable if there is no physical pain directly sustained by the mother.

The Court upheld the denial of the motion for summary judgment.

A New York Medical Malpractice Lawyer must prove material issues of fact that must be tried before a jury. A New York City Medical Malpractice Lawyer must also prove that the doctor being sued failed to perform his duty in accordance with medically accepted standards. At Stephen Bilkis and Associates, their NYC Medical Malpractice attorneys are willing to sit with you and analyze the facts of your case. Their NY Medical Malpractice attorneys are available to render advice as to the viability of your claim for medical malpractice. Call Stephen Bilkis and Associates today.

May 2, 2012

Plaintiff Claims Emotional Distress from Medical Malpractice Issue

On 16 December 1999, a woman gave birth to a baby boy at a hospital. The infant, a full-term baby, was born alive. A New York Injury Lawyer said that shortly after the delivery, a nurse allegedly negligently used a vacuum extractor on the infant, which deprived him of oxygen and caused his death.

On 14 January 2002, plaintiff, as administrator of the estate of the deceased infant, commenced the instant action claiming that defendants negligently caused the infant to asphyxiate and die. The mother was originally a party to the action and claimed pain and suffering due to defendants' negligence.

On 19 December 2002, the court granted plaintiff leave to amend his complaint to include the herein plaintiff, as administrator of the infant’s estate. The mother also voluntarily discontinued her claims because she had no individual claims for pain and suffering.

Plaintiff moves that the court allow him to amend his complaint to add the mother as a plaintiff based on the Court of Appeals' recent decision. A Nassau County Personal Injury Lawyer said he argues that he should be permitted to add the mother as a plaintiff even though the statute of limitations has expired because her claim relates back to the original filing date. Furthermore, he argues that the mother is not barred from bringing this action even though she previously discontinued her claims because waiver is the relinquishment of a known right and the mother did not have a right yet to bring the instant suit at the time she discontinued her claims.

Defendants oppose this motion, arguing that the Court of Appeals decision does not apply because the infant was born alive. Further, defendants urge that such decision and its progeny should not apply retroactively to cases filed before it was decided. Additionally, they argue that the mother waived any claims that she might have had in this action when she voluntarily discontinued them. A Manhattan Personal Injury Lawyer said finally, defendants contend that the mother’s claim is barred by the statute of limitations.

With regard to prenatal medical treatment, medical professionals owe a separate duty of care to the mother and the developing fetus. Thus, when a doctor negligently causes a fetus to suffer permanent injuries, the infant, if later born alive, has a cause of action against the doctor. Likewise, if a doctor commits medical malpractice against the mother's person that causes her physical injury, she has a separate cause of action against the doctor.

Until 2004, however, neither a mother nor her fetus had a cause of action if a doctor negligently caused a miscarriage or stillbirth (by a birth injury or birth injury accident) unless the mother sustained actual physical injury.

In 2004, the Court of Appeals held for the first time that, even in the absence of independent physical injury, a mother can recover against a negligent doctor for the emotional of miscarrying or having a stillbirth. The Court reasoned that if "the fetus cannot bring suit, it must follow in the eyes of the law that any injury here was done to the mother."

Cases following the Court of Appeals decision have slightly expanded this rule to authorize recovery for a mother's emotional distress not only when fetuses die in utero, but also in cases in which an infant was born severely impaired because of negligence inflicted upon the fetus while in utero.

Plaintiff argues that he should be permitted to the mother as a plaintiff because now she has a cause of action under the aforesaid decision. But here, unlike the fetuses in the Court of Appeals decision, the infant was born healthy and alive. There was no miscarriage or stillbirth. Defendants allegedly injured the infant shortly after he was born, not when he was in utero. The alleged negligence was inflicted independent of the mother; it was inflicted upon the infant.
The case at bar is much more analogous to cases in which parents have witnessed harm or death to their children. The mother is seeking recovery because she allegedly watched defendants improperly suction her child, which caused him to asphyxiate. Although defendants previously treated the mother in pregnancy, it was their care of the infant after his birth that allegedly caused his death. Defendants are not accused of causing the infant’s death through their negligent treatment of the mother while he was in utero.

This distinction is an important one. New York case law establishes that in analyzing a mother's ability to recover for emotional distress based on injuries to her child, courts must draw a line between injuries caused in utero and those inflicted after the child was born. Otherwise, courts will open the gates of recovery for mothers to recover anytime something happens to their children.

The court has previously ruled that in any case of medical malpractice, it is foreseeable that many individuals at various degrees of closeness to the directly injured party will suffer emotional distress. If such foreseeability is held to create or define a duty as a foundation of liability, it may well open our courts to an inundation of claims for emotional injuries extending far afield of the epicenter of the injury.

Allowing mothers to recover for emotional distress based on their children's injuries only when they are caused in utero is a sound rule. After all, injuries inflicted in utero are inflicted on a fetus directly through its mother. After birth, however, the child has its own separate existence and its injuries are independent. They are not effected through its mother.

The mother should not be permitted to recover merely based on her relationship to her child. The Court of Appeals decision as mentioned held that the treating physician owes no duty of care to the expectant father and there is no basis to distinguish between a mother and a father.
The infant was injured after birth and not in utero. The mother has no cause of action and her request to be added as a plaintiff is denied.

Accordingly, the court denies the plaintiff’s motion to amend the complaint.

If you have inquiries on legal matters such as the above, contact Stephen Bilkis & Associates. We are experienced in the legal profession and we have highly trained lawyers who are proficient in the field of personal injury. We provide the best New York City Personal Injury Attorneys such as our New York City Medical Malpractice Attorneys or our New York City Birth Injury Accident Attorneys.

May 1, 2012

Plaintiff Seeks to Declare Neighbors Dog Dangerous

A man owned a Chesapeake Bay retriever. It attacked the daughter of his neighbor and caused serious injury to her. The father brought suit against the dog owner and asked the court to declare the Chesapeake Bay retriever a dangerous dog.

A New York Injury Lawyer said a dangerous dog is defined as one who has attacked a person or another animal without justification and has caused serious injury. Under the law, the owner who allows his dog to bite another person knowing that his dog has a propensity to bite shall pay restitution not exceeding $1,500 plus penalties and pay unreimbursed medical expenses, lost earnings and other damages resulting from the injury. The dog will also be put down. Further, the law mandated that the owner of the dog shall be strictly liable for medical costs resulting from injury caused by his dog.

The judge made an oral decision declaring the Chesapeake Bay retriever was a dangerous dog. He imposed the $1,500 civil penalty. The judge declared also that the owner was strictly liable for the unreimbursed medical expenses. The judge deferred ordering the euthanasia of the dog as it had already been sold.

The dog owner filed an action seeking the clarification of the judge’s decision. He asked for clarification on the concept of negligence and strict liability used by the judge in his oral decision.

The only issues presented here is whether the common law negligence applies here; whether the strict liability for unreimbursed medical expenses still have to be paid.

A Bronx Personal Injury Lawyer said the Court held that prior to the 2004 amendments of the Agriculture and Markets Law, a person who got bitten by a dangerous dog had to choose whether he would sue under the common law negligence or sue under the statutory “vicious propensity” theory.

The Court of Appeals has decided in a case that after the amendments, those bitten by a dangerous dog only have one recourse and that is to file suit under the statute. There is no more common law cause of action for negligence against the owner of a dog who bites another.
The Court also held that it will take this opportunity to explain exactly what the statute means when it used the terms “negligence,” “strict liability,” and “civil penalties.” This ruling will put to rest all questions regarding what kind of damages a person can ask for when he is bitten by a dangerous dog.

The Court held that the amendments in 2004 aimed to give the courts more control over dangerous dogs by making their owners accountable. It also aimed to increase the judge’s discretion in imposing penalties on the dog owner.

The Court held that under the statute as amended, a person bitten by a dog must first prove that the dog was a dangerous dog. A Brooklyn Personal Injury Lawyer said if the owner of the dog knew that the dog was dangerous, or, that the owner did not exercise his duty of care to make sure that his dog could not bite anyone. The Court held that the father of the child who got bitted by the dog here has met his burden when he introduced evidence that the attack by the dog on his daughter was unprovoked. He has succeeded in establishing the dog’s vicious propensity and the owner’s negligence. This proof entitled the father to the payment of damages in the amount of $1,500.

The Court also held that insofar as the award for payment of unreimbursed medical expenses, the dog owner had strict liability. That is, there is no need to present proof of negligence. The only thing the father had to prove was the injury to his daughter and the medical costs he has incurred.

The Court held that the amendments to the law granted jurisdiction to the courts to enter judgments for unlimited amounts of medical expenses arising from dangerous dog attacks. The Court further held that the duty to compensate for unreimbursed medical expenses is a continuing obligation.

The Court ordered the father to present evidence on the exact amount of medical expenses he has incurred in connection with the treatment of his daughter’s dog bite. If necessary, a damages hearing shall be scheduled.

At Stephen Bilkis and Associates, their New York Dog Bite Lawyers will assist you in presenting evidence that the attack upon you was unprovoked. Their New York City Dog Bite Lawyers will also help you present evidence of the injuries you sustained. Whether you have been injured in a car accident, because of a medical malpractice case or construction accident, we will advise you to keep all receipts for doctor’s fees, hospital fees and receipts for purchase of medicine. All these will constitute the amount of actual damages you are entitled to. Call Stephen Bilkis and Associates today and speak to any of their NYC Dog Bite Attorneys at any of their offices conveniently located around the New York area.

April 30, 2012

Plaintiff Brings Medical Malpractice Claim for Failure to Diagnose

These are two consolidated cases of pregnant women who gave birth to stillborn babies because of the medical malpractice and negligence of their obstetricians.

A New York Injury Lawyer said in the first case, the woman was under the care of an obstetrician and a nurse-midwife. At 1:45 am. Of September 25, 1994, the pregnant woman called the nurse-midwife to inform them that her bag of waters had broken and that there was a lot of blood. They were instructed to go to the birth center.

The couple arrived at 3:00 a.m. at the birth center and while there, she expelled some more blood. The pregnant lady wondered aloud to the nurse-midwife if she should go to the hospital across the street for emergency treatment. The nurse-midwife called her obstetrician who ordered that the pregnant lady be transported to a hospital in Manhattan.

When the pregnant lady and her husband arrived in Manhattan, it was 3:45. They had to wait for the doctor who arrived forty-five minutes after. The doctor detected a slowing of the baby’s heartbeat. But instead of immediately performing a cesarean section, the doctor performed an ultrasound. By the time the ultrasound was performed, the baby had no more heartbeat. Still thirty minutes passed before the baby was finally delivered by cesarean section and it was born dead. The pregnant lady’s placenta had ruptured and caused the fetus to die before it was extracted.

The pregnant lady and her husband then sued the obstetrician and the nurse-midwife for medical malpractice and for negligence for failing to properly and timely diagnose her placental rupture and for failing to timely perform a cesarean section which could have saved her baby’s life. The woman claimed damages for emotional distress at the loss of her baby but she alleged no direct injury to herself. The doctor and the nurse-midwife moved for a summary judgment of dismissal on the ground that the woman failed to allege any direct physical injury to her and so she cannot sue for damages due to her emotional distress at the injury sustained by her baby only.

In the other case the pregnant lady was told by her obstetrician in August 1999 that she was carrying twins. At the end of October during a follow-up visit that she was experiencing lower abdominal pain and cramps. The obstetrician performed an ultrasound and told her that one of the twins was pressing against her sciatic nerve. A Suffolk County Personal Injury Lawyer said two days after that the pregnant lady called her doctor and told him that she had intense pelvic pain and nausea. The doctor just told her to lie down to relieve the pressure on her sciatic nerve. He told her that her nausea was probably due to something she ate.

Two hours after she called her doctor, the lady sat in the toilet and one of the twins popped out of her. They called an ambulance and the pregnant lady with her baby still attached to her by the umbilical cord was rushed to the hospital. In the hospital, she delivered the other twin. Both died at only eighteen weeks of gestation.

Other doctors diagnosed the pregnant lady and found her to have an incompetent cervix. She had surgery to repair her cervix to prevent the premature explusion of the fetus. A year after the surgery, the lady gave birth to a premature baby girl.

The pregnant lady and her husband brought suit against the obstetrician for medical malpractice and for negligence for his failure to correctly diagnose the condition of her cervix. She claimed damages for the emotional pain she suffered from the loss of viable babies that she lost because the doctor failed to treat her in accordance to the level of care dictated by accepted medical practices.

The doctor also filed a motion for summary judgment asking for the dismissal of the complaint for damages arguing that since the mother did not claim and direct physical injury sustained by her, she cannot recover damages for the emotional distress brought about by the still birth of her babies even if the doctor were found to be guilty of medical malpractice and negligence.
These two cases are on appeal and the Supreme Court decided to decide them jointly. The Supreme Court decided to overturn the ruling they had made in 1985 where they proclaimed that a mother cannot recover for emotional distress when her doctor’s medical malpractice caused her to miscarry or to give birth to a stillborn child if she does not also show that she suffered a physical injury separate from the suffering of her fetus and which is not a normal incidence of childbirth.

The Court refused to apply this twenty-year old ruling to these two cases stating that they can no longer defend the logic or ruling in that old case. A Manhattan Personal Injury Lawyer said they pointed out the discrepancy created by that ruling: babies who are injured while they are still in utero can sue the doctor for negligence and medical malpractice provided they survive the pregnancy. But babies who die in the womb or are miscarried or are delivered stillborn cannot sue for the pain and injury they sustained. Their mothers cannot sue for the emotional distress of losing the baby if she does not show any other physical injury she sustained apart from childbirth.

In these two cases, the Supreme Court ruled that if the stillborn, miscarried baby cannot sue, then the mother can because the injury was done to the mother. The Court found that an obstetrician owes a duty both to the woman and to the baby she was carrying to make sure that he exercises care in their treatment. When a fetus is injured in the womb and dies as a result or is miscarried, there is a breach of the obstetrician’s duty of care to the patient (the mother). The mother is therefore entitled to recover damages for emotional distress.

A New York Medical Malpractice Lawyer has the duty to prove negligence or medical malpractice on the part of the obstetrician. The NY Medical Malpractice Attorney must show that the doctor deviated from accepted medical practice and this resulted in the injury to the fetus which caused its death. Thanks to this 2004 ruling, the NYC Medical Malpractice Lawyers at Stephen Bilkis and Associates need no longer prove a separate and direct physical injury to the mother for her to recover damages for the death of her fetus. Call Stephen Bilkis and Associates today. Speak to any of their NYC Medical Malpractice attorneys and ask for their assistance to bring a claim for medical malpractice against a negligent obstetrician.

April 28, 2012

Court Discusses Elements of Dog Bite Case

Everyone who owns a dog in the United States should be aware of the many legal issues associated with having your pet. Most of us who own dogs, consider them four legged family members. When an incident arises that could jeopardize their survival, we become frantic. However, people are human and often make ill-advised choices. A New York Injury Lawyer says any animal, human or other, will bite if the situation calls for it. Responsible dog owners understand this. A responsible dog owner will not put his or her dog in a situation where the dog will feel that it is necessary to fight or flee.

Unfortunately, even the best-intentioned dog owners have a tendency to assume that a dog understands all human actions. What they should be doing, is attempting to understand how your dog will view any given situation in order to avoid an encounter that could jeopardize your dog. Early dog training classes are good for dogs. A dog is never too old to learn. The earlier the dog starts learning how to communicate with humans and vice versa, the better the chances are that the dog will not get into trouble with the law later in his life. When a dog is placed into a situation where he feels threatened, he will bite. When a dog bites a person, the dog is usually the one who is killed. It doesn’t seem fair that a dog can be put to death for defending itself, but there is no self-defense plea in dog bite cases.

The laws of New York state that in order for the owner to be charged for the vicious actions of his or her dog, they must have knowledge of the vicious propensity of the dog. If the owner has never been in a situation to suspect that the dog might bite, New York law says that the owner is not responsible. If an animal has teeth, they can bite. A Westchester County Personal Injury Lawyer said that most domesticated animals make the conscious choice not to bite. However, there are many situations where dogs have gone years with their owners never showing a desire to bite a person and then one day they bite someone.

When a dog bite case goes to court, the owner of the dog must prove that they did not know that the dog was dangerous. If they did know that the dog was dangerous, it is incumbent upon them to prove that they took steps to ensure that the dog would not hurt anyone. In court, the judge must instruct the jury, only on the information that is essential for the trial.

In one appeal, from the Supreme Court Second Department dated November 24, 1986, a verdict to recover damages for personal injuries which was entered on September 10, 1985. A Suffolk County Personal Injury Lawyer said the Supreme Court ordered a reversal of the trial court’s verdict because the judge gave improper instructions to the jury before jury deliberation. Specifically, the judge stated that dogs bite for many different reasons. He told the jury that dogs do not always bite out of viciousness, sometimes they bite out of self-defense, if they are being teased, or to protect someone. While this information is certainly true, there was no evidence given in the trial of the case to support any of those theories.

The court found that the instructions to the jury should tell them what the law says as it applies to the particular facts in the case being heard. The Supreme Court determined that the alternate reasons that the judge gave the jurors for the dog’s actions, effectively prejudiced them from finding in favor of the person who was bitten by the dog. The victim of the dog bite appealed and the verdict in the case was overturned. Specifically, the justices stated that the evidence did not support the examples provided by the judge.

At Stephen Bilkis & Associates New York Criminal Lawyers are available to help you. Our New York Dog Bite Lawyers provide you with the best defense possible if your dog has bitten someone. If you are the victim of a vicious animal, or have been hurt in a car accident or medical malpractice accident, call us for help.

April 28, 2012

Child Bitten by Dog Chained in Back Yard

In New York, the laws that cover an attack by a dog on a person or other animal are handled in civil court as a motion to recover damages. A New York Injury Lawyer said in a situation where a dog has bitten a person, the dog is usually tied up or on a leash and a stranger approaches it. It is important to note that the dog is almost always considered at fault in this type of encounter even though the person had to approach the dog and not the other way around.

However, it is never a good idea to leave a dog chained or tied without a fence around them. People are often attracted to dogs and are known to approach them. No one should approach a strange dog, especially when the dog is tied and cannot retreat. Most cornered animals will turn and fight. A tied or chained dog is no exception. In some cases, an owner of a vicious dog uses poor judgment. One particular case demonstrates several issues.

In this case, a dog owner often left his dog chained in the back yard. The chain was attached to a stake in the ground, and there was no fence around the back yard. The dog was known to grown, bark and lunge to the end of his chain if anyone came in to the backyard. A Staten Island Personal Injury Lawyer said on one occasion, the dog’s owner told one of his neighbors to stay away from the dog because it was known to bite. On June 26, 1986, a child approached the dog and was bitten. It is critical to note that at the time of the attack, the dog was on a chain and was in his own back yard. Thus, the child who was bitten had ventured on to the property that was owned by the dog’s owner and gone into the reach of the dog who was secured by a chain.

The trial court that the case was presented to dismissed the case because they stated that the child’s lawyer had failed to make a prima facie case to establish a complaint. On appeal, the verdict was overturned and the Supreme Court advised that they felt that the complainant had provided sufficient evidence that the dog was vicious. This was proven by the dog’s proclivity to growl, bark and lunge to the end of his chain at people. They also felt that the case was proven that the owner of the dog knew that the dog was vicious. The neighbor who was warned to stay away from the dog because it bites proved this. The Supreme Court maintains that the evidence established that the dog was vicious and the owner knew that it was, so the dog should have been maintained in a manner that would protect the public from the dog.

The question remains, that if the dog was chained in the owner’s back yard, was it a danger to the public? If the child was trespassing on the property of the owner and was bitten by the owner’s dog, is it the owner’s fault? Unfortunately, the days of being able to protect your own property are being threatened. This case is only one of several. Some have even been brought when a homeowner’s dog bit a man possessing burglary tools. The man had climbed a fence into the backyard of the home in order to break in to it. The owner’s dog was on a chain inside the fenced yard in the middle of the night when he bit the burglar. A Queens Personal Injury Lawyer said the burglar filed suit against the homeowner and won. If you are a dog owner facing charges because someone trespassed on your property and approached your dog, you need an attorney to represent you.

At Stephen Bilkis & Associates, we are here to help you. Our New York Dog Bite Lawyers will protect you and your dog. If you are the victim of a vicious dog or other animal, medical malpractice or have been injured due to the negligence of another, contact us right away!

April 28, 2012

Child Bitten in the Face by Dog at Daycare Center

In June 1998, the defendants (husband and wife) operated a day care center out of their home. The plaintiff, then approximately three years old, attended the day care center. On 30 June 1998, the plaintiff was bitten on the face by the day care center’s family dog, a pure bred labrador retriever weighing approximately 75 pounds. At an examination before trial, defendant-wife testified that the dog, who was trained by the defendants, was mainly a house dog, although the yard was fenced in and she had free rein to go where she wanted. On the day in question, there were a total of six children in the center, ranging in ages from two to four years old. At around 10:30 A.M., the children went out on the deck to play. Defendant-wife was sitting at a table inside the house approximately two feet from a sliding door to the deck, doing paperwork and going through mail and bills. Just prior to the incident, the dog walked onto the deck. The plaintiff went up to the dog, who was sitting, and "bear hugged" her around the neck, coming face-to-face with the animal. Defendant-wife testified: "I told the plaintiff to leave the dog alone. And at that, the dog moved and the plaintiff was crying." At the time, defendant-wife was approximately 10 feet from the dog and the plaintiff. When defendant-wife took the plaintiff inside to get him a glass of juice, she noticed that there was a cut and some bleeding above and below one eye of the plaintiff. Defendant-wife testified that there had been no prior incidents with the dog concerning anyone on the premises, and that, although Daisy would bark at strangers at the door, she did not growl or jump on people. Indeed, defendant-wife asserted at the time of her deposition in February 1999 that the defendants still owned the dog and that there had not been another incident.

Subsequently, a New York Injury Lawyer said the plaintiff commenced the instant action seeking to recover damages arising from strict liability and common-law negligence. He alleged, inter alia, that the dog had vicious propensities, and that the defendants had failed to provide adequate supervision.

Plaintiff moved for summary judgment on the issue of liability and to dismiss the defendants' affirmative defenses of assumption of the risk and comparative negligence.

The plaintiff argued, inter alia, that it could be determined as a matter of law that the defendants failed to provide adequate supervision, and that he was too young to have either assumed the risk of his injuries or to have been comparatively negligent.

On appeal, plaintiff does not pursue the argument that the dog had vicious propensities and that, therefore, the defendants may be held strictly liable for his injuries.

When a three-year-old child bear hugs a pet labrador retriever owned by his day care provider and the dog bites the child as the provider calls out to the child to leave the dog alone, can there be a recovery by the child in an action alleging negligence even though there is no evidence that the dog previously exhibited vicious propensities?

Indeed, there is no proof on the record that the dog possessed or demonstrated vicious propensities. However, contrary to the defendants' contention, proof of vicious propensities is not required in all cases to recover for injuries arising from a dog bite, a dog attack or an animal attack. Rather, where the conduct at issue, although not vicious, results in reasonably-foreseeable injury, the courts have recognized a right to recover for common-law negligence.
In the case at bar, the plaintiff also seeks recovery for damages based on common-law negligence, other than the theory on strict liability. An NYC Personal Injury Lawyer said that pursuant to general principles governing a negligence claim, there must be a duty owed the plaintiff by the defendant and a breach of that duty. In the oft-quoted language of a landmark case, "the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." Thus, liability in negligence arises when a defendant owes a plaintiff a duty of care and is negligent in taking reasonable measures to prevent injury arising from conduct that is reasonably foreseeable. By contrast, even the most elaborate and extensive measures will not avoid strict liability for injuries arising from a dog's known vicious propensities. Here, the question is whether the action of the plaintiff, and the dog’s response, were sufficiently foreseeable to put the defendants on notice that such an encounter might be anticipated. This inquiry raises issues of fact.

The defendants, as providers of day care services, owed the plaintiff the same duty of care and supervision owed by a reasonably prudent parent under the circumstances. Further, as such, a jury might find that they are charged with the knowledge that a young child such as the plaintiff may interact with a dog in a fearless manner that befits a child's lack of capacity to fully understand the foreseeable consequences of such conduct; that is, that such conduct may be injurious or threatening to the dog and, if so, that the dog, even a docile and well-trained one, may instinctively engage in defensive action such as biting. Here, defendant-wife’s calling out to the plaintiff to leave the dog alone just before he was bitten may be found by a jury to be evidence that she was in fact aware of the possibility of such a response by the dog.

Accordingly, a Long Island Personal Injury Lawyer said the dismissal of the defendants' affirmative defenses of assumption of the risk and comparative negligence is warranted.

In sum, there are questions of fact whether the defendants breached the duty of care owed the plaintiff by failing to take reasonable measures to prevent the incident at issue and, if so, whether such a breach was a proximate cause of the damages alleged.

Accordingly, the court holds that the aforementioned issue cannot be summarily determined and that questions of fact warrant submission of the case to a jury; the order is modified; defendants’ affirmative defenses of comparative negligence and assumption of risk are dismissed.

If you are confronted with a similar situation as mentioned above, or have experienced an injury due to medical malpractice, a car accident or construction accident, contact Stephen Bilkis & Associates. Have a free consultation with our firm and speak to our highly trained, skilled and experienced New York Dog Attack Attorney. You may also consult with our New York Animal Attack Attorney for other animal attack concerns.

April 27, 2012

Court Decides Dog Bite Case

Dog ownership is a serious commitment that is often misguided. Pet stores have made it easy for people to purchase puppies without having any knowledge of their breeding, background, or breed characteristics. Unlike reliable certified breeders, who inquire about the person’s knowledge of the breed and facilities to maintain large breeds, pet stores do little if anything to ensure that the purchaser is able to care for the dog. Many pet stores carry “bully breed” dogs. They sell them without providing the purchaser with any warnings about what the breed was originally bred for. All domesticated dogs were specifically bred to handle a need among people. Some breeds were bred specifically as guard dogs and as such were bred not to form as close a bond with people as other breeds.

People may purchase a large breed puppy because it is cute and has wrinkles, but in some cases, they might as well bring a loaded gun into their homes. A New York Injury Lawyer said more people are purchasing breeds like the Neapolitan Mastiff and others, which were bred to be guard dogs. These people think that they can make the dog a gentle pet. These dogs need exercise and they need a job. They were never intended as pets.

On February 8, 2008, a little girl went to her brother’s fiancée’s house to spend the night with her brother and his future bride and her daughter. That night, she played with the three dogs that belonged to the family. One was a 125-pound Neapolitan Mastiff, the second dog was a Golden Retriever, and the third was a Maltese which weighed less than ten pounds. The following morning, she went into the living room to say good-bye to the dogs. She grabbed dogs by the face, put her face up to theirs and kissed their noses. When she got to the Mastiff, she was sleeping. The child grabbed the sleeping dog’s face and pressed her face to the dog’s face. The dog was startled and leapt up. The dog’s foot hit the child in the face, causing a deep cut that required stiches. The child fell over the ottoman and struck her face on the coffee table which caused her to break her nose. The dog never growled, barked, bared its teeth, or bit the child. In fact, the dog was so terrified by the attack that she retreated to the kitchen and hid.

One month later, the dog bit a friend and the owner’s put her down because they were afraid that she would hurt someone else. A Queens Personal Injury Lawyer said they advised that they had purchased the dog from a pet store. They were unaware of the reputation of the breed and had no knowledge that they were considered guard dogs and not family pets. They had not gotten the dog any formal training and had not consulted a professional about any breed specific issues that Neapolitan Mastiffs might have. They had never cautioned the child when she came to visit that you should not sneak up or startle a dog.

They never told the child to be cautious of the dog, because they did not have any idea that the dog might have any proclivity to cause harm. The plaintiff, the child’s mother, claims that the fiancée who owned the dog, should have known about the breed before she purchased it. Further, the dog was quite large, common sense would be to restrain it when a small child is around. At the very least, the child should have been cautioned about going face to face with any dog. A face to face greeting is a threat to a dog. A Staten Island Personal Injury Lawyer said they are likely to react toward the human who exhibits this behavior in much the same fashion that they would if a dog threatened them in that manner.

The court finds that the dog acted in a normal dog like manner. The dog was large and struck the child with a foot. There was no indication that the dog had any vicious tendencies. The motion by the defendant owners of the dog was granted in that they were given a summary judgment dismissing the complaint against them.

At Stephen Bilkis & Associates New York Criminal Lawyers are available to help you. Our New York Dog Bite Lawyers are trained to provide you with the best defense possible. Whether you have been injured by the negligence of another, been a victim of medical malpractice or a construction accident, call us for help and guidance.

April 25, 2012

Child Dies After Medical Malpractice Mistakes

A mother alleges medical malpractice as a result of the failure of the hospital in evaluating properly her condition as well as treating her when she presented at the hospital in approximately 32nd week of pregnancy with complaints of abdominal pain, she delivered a baby at home unattended by a medical personnel. The baby emerged in a footling breech position and was later determined to have died of asphyxia, a condition where the body is severely insufficient in supply of oxygen, because its head had been wedged at the birth canal. The mother claims that she suffered great emotional pain as a result of this event and its consequences. The complaint alleges that the baby was born alive, and names the baby's estate and the baby's father as co-complainant. The hospital brought a third-party action against the physician who allegedly treated the mother on her final visit to the said health care facility prior to the home birth.

A New York Injury Lawyer said that following the pretrial disclosure, the hospital and the physician moved to asked for decision without proceeding to dismiss the complaint on the ground that the baby had been stillborn. The complainant was prohibited from claiming damages. At the time the motion was made, the prevailing rule under the law was that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth, absent a showing that she had suffered a distinct physical injury.

The mother in opposing the motion contented that her baby had briefly lived. The civil court denied the request to dismiss the complaint, concluding that the record presented did not establish that the baby was stillborn.

After the case had been placed on the trial calendar, the mother served a revised expert witness testimony, a notice of medical report, and a further expert testimonial. A Nassau County Personal Injury Lawyer said that was the first indication that the mother would call an expert witness at trial to establish that the mother suffered emotional injuries. However, the hospital and the physician moved to disqualify the complainants from revealing expert testimony at trial, contending that recovery for such injuries depended upon the mother proving that the baby had been stillborn, and that the mother was intelligently impede from taking that position, which was at odds with the facts as pleaded and as complainant had argued in opposition to the motion for decision dismissing the complaint. In an order, the civil court denied the motion and directed the mother to revise the complaint to allege that the baby was stillborn, finding that the doctrine of legal impediment did not apply when a party took contradictory positions within the context of a single lawsuit.

The evidence attested on trial that the mother was first treated at the hospital during her pregnancy when she presented with headache, fever and lower abdominal pain and was hospitalized for six days. Subsequently, a Suffolk County Personal Injury Lawyer said the mother returned to the hospital with complaints of pain, lower abdominal pain, and spotting, and was admitted for the purpose of ruling out labor. She was treated with a drug that relaxes the uterine muscles and also used to stop premature labor, and then she was placed on a fetal monitor. Further, a culture test was taken and an antibiotic was administered. The mother was discharged on with a diagnosis of cervicitis.

Two days after the mother’s discharged, she was again admitted to the hospital with similar complaints. During the admission, she received another drug used to prevent or stop premature labor, and was discharged against with medical advice. Four days after, the mother returned to the hospital. She was determined not to be in labor and given another antibiotic for a possible urinary tract infection then sent home. On the succeeding day, the mother was approximately on her 32 to 33 weeks of pregnancy. She had triage admission at the same hospital and again determined was not in labor then she left.

The mother again reported to the hospital later the same morning. Although there was no hospital record made of that visit, it was certain that the mother was seen by medical personnel at that time, was given a prescription of certain drug written on the physician’s prescription pad and was sent home. On the following day, while at home, the mother began experiencing an urge to urinate but was unable to empty her bladder. At approximately 12 noon, the mother went into abrupt labor. Her brother called for an ambulance but the baby was born foot-first at home. There was a testimony that while the baby was only partially emerged, she was pink and kicking. However, the baby's head lodged in the birth canal and on that specific time the baby appeared gray and had no detectable pulse. Efforts of resuscitation begun at home by an EMS technician and was continued in the ambulance going to the hospital. From the ambulance, the baby was reported by the EMS technician to be in arrest and upon arrival at the hospital the baby had no pulse or respirations. Suctioning, bagging and intubation was done and pulse respirations and an EKG rhythm were briefly recorded. However, after several minutes the baby was pronounced dead. The death certificate states that the baby died at the age of approximately one hour because of asphyxia due to unattended breech delivery with head wedged in birth canal. However, the mother’s expert physician testified that a breech baby born cyanotic with zero pulse and zero respirations approximately half an hour after its feet emerge is stillborn. Consequently, there was conflicting evidence presented as to whether the baby was born alive or was successfully resuscitated for any period of time.

The hospital’s experts testified to their belief that the mother had not been in labor when she went to the hospital on the days before her abrupt delivery. It was their contention that the placenta became infected following those triage visits to the hospital, and that the infection caused the sudden delivery of the baby at home. As to the argument, the mother's expert countered with his opinion that the placenta became infected because of its exposure to microbial agents during the time that the mother was at home with ruptured membranes and a partially delivered baby as well as during her ambulance transport to the hospital. It was his opinion that, rather than causing the premature delivery, the placenta became infected during the extended delivery process that occurred in non-sterile conditions.

The jury recognizes the duty to consider whether the jury verdict deviated materially from what would be reasonable compensation. Based on the record, the review of damage awards involves the use of two distinctly different standards. One analysis focuses on whether or not the verdict is supported by the evidence. Another line of inquiry requires us to determine what awards have been previously approved on appellate review and decide whether the instant award falls within those boundaries.

The jury's judgment reflected its decision to resolve the battle of the experts in the mother’s favor. The jury finds no grounds for reversal of the decision, which was based upon significant evidence.

Considering the nature of the mother's injuries, the jury concluded that the civil court properly refused to reduce the jury's award for the mother's past pain and suffering. The court noted that the judgment entered was awards judgment not only in favor of the mother individually, but also in favor of the administrator of the estate of the baby. The court corrected the clerical error by modifying the judgment to provide that the award is only in favor of the mother individually.
It is very disappointing for a parent to see her own baby without life. If you want to provide your child with justice she deserves, call our NYC Birth Injury Lawyer and our NYC Medical Malpractices Lawyers for legal guidance. Helping the person claim his rights can lessen the pain and suffering he is experiencing, so call a NYC Injury Lawyers at Stephen Bilkis & Associates to find out how.

April 25, 2012

Court Decides if Parents Can Recover for Mental Distress from Medical Malpractice Case

Plaintiffs allege that the defendant-doctor was negligent (medical malpractice) when he failed to take a proper genealogical history or to properly evaluate the situation. They claim that he was aware that they were both Eastern European Jews and he, therefore, should have known of the high risk that the fetus would suffer from the disease. They contend further that had he made them aware of the risk involved and informed them of the availability of tests to determine the existence of the disease, they would have undergone the tests; and, had they been advised that the fetus was afflicted with Tay-Sachs (birth injury or birth injury accident) they would have aborted the pregnancy.

Can the parents recover from the defendant-doctor for the mental distress and emotional disturbances they suffered as a result of their infant daughter having been born with and eventually succumbing to Tay-Sachs disease, a progressive degenerative genetic disorder affecting the nervous system?

Should the defendant-doctor be held liable for the trauma suffered by the parents allegedly caused by the birth, degeneration and death of their child?

A New York Personal Injury Lawyer said that in order to provide a party who has been injured through the negligence of another with some measure of redress for the wrong inflicted upon him, a rule of law has evolved allowing that party to recover money damages as compensation for the injuries sustained. This, of course, is based on the legal fiction that money damages can compensate for a victim's injury (personal injury). Although this device is as close as the law can come in its effort to right the wrong, it is still, nevertheless, a fiction for money will not replace or repair the lost or broken limb or remove the disability caused.

By the same token, however, the law has long recognized that it need not provide relief for every injury suffered. Where a party's negligence is directly responsible for physical injury to another, there is no question but that the injured party may recover both for the actual physical injury sustained and for the concomitant mental and emotional suffering which flow as a natural consequence of the wrongful act. Indeed, an individual can recover for the psychic injuries suffered as a result of another's negligence where there has been no physical impact if the party seeking recovery was subjected to the fear of physical injury as a direct result of the tortious conduct. Further, there may be recovery for the emotional harm, even in the absence of fear of potential physical injury, to one subjected directly to the negligence of another as long as the psychic injury was genuine, substantial, and proximately caused by the defendant's conduct.

On the other hand, the law has repeatedly denied recovery for mental and emotional injuries suffered by a third party as a result of physical injuries sustained by another. A Queens Personal Injury Lawyer said that no cause of action exists, irrespective of the relationship between the parties or whether one was a witness to the event giving rise to the direct injury of another, for the unintentional infliction of harm to a person solely by reason of that person's mental and emotional reaction to a direct injury suffered by another.

Sound policy reasons and unlimited hypothesis present themselves. An NYC Personal Injury Lawyer said it now extends the perimeter of liability would inevitably lead to the drawing of artificial and arbitrary boundaries. Indeed, to allow recovery illustrates the arbitrary nature of such a holding, for it would allow the mother of the deformed child to recover while the father is entitled to no relief. Yet, both parents contend that the injury to them stemmed from the trauma occasioned by viewing the degeneration of their daughter. Can it be said that the mother's injury was more direct or of a greater magnitude? The law of liability should not turn on hypertechnical and fortuitous considerations of this type.

There can be no doubt that the plaintiffs have suffered and the temptation is great to offer them some form of relief. Ideally, there should be a remedy for every wrong. This is not the function of the law, however, for "every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree".

The court rules that to afford the parents relief as against the doctor would require the extension of traditional tort concepts beyond manageable bounds.

Accordingly, the complaint is dismissed.

Personal injury cases cover physical, mental and emotional pain resulting from the wrongdoing of another. If you have been harmed because of the wrongful conduct of another, consult with our NYC Personal Injury Attorneys immediately. Our specialized lawyers include: NYC Medical Malpractice Attorneys, NYC Birth Injury Attorneys, etc. At Stephen Bilkis & Associates, your well-being is our priority.

April 24, 2012

Court Determines Jurisdiction in Breach of Contract Case

This breach of contract action is filed by a financial leasing company in New York against a financial leasing company from India and its president. The trust company, however, moved to dismiss the complaint for lack of personal jurisdiction.

A New York Injury Lawyer said before this action occurred, the financial leasing company in New York entered into discussions of a potential business relationship with the financial leasing company from India in connection with the use of New York financial leasing company’s technology for India financial leasing company’s online microfinance service. As part of the project, financial leasing company in New York sent its consultants to India to perform the study of the parties' needs for the project. According to the financial leasing company in New York, the estimated cost of the project was approximately $25,000, 50% of which was to be paid in advance by the financial leasing company from India and the remaining 50% at the completion of the project. Additionally, the financial leasing company from India was to pay the expenses associated with the consultant's travel and lodging.

The president confirmed in response to the financial leasing company in New York’s email of outlining the terms of the project.

After the completion of the said project by financial leasing company in New York, the financial leasing company from India paid only the cost of the consultant's expenses but failed to pay the sum of $25,000. Financial leasing company in New York’s demand for payment, but the financial leasing company from India refused to pay. After receiving the notice of demand for payment, the president started using her connections and influence in business circles, pressuring some institutions in India, with which financial leasing company in New York had a contractual relationship or was in the process of negotiating business agreements. In this way, the financial leasing company in New York is forced to discontinue the law suit against the financial leasing company from India or risk losing its contractual business relationships with the other institutions. As a result of such conduct by the president, the financial leasing company in New York claimed that it sustained personal injury. The instant action for a permanent injunction, breach of contract, recovery of money and tortious interference arises.
In the motion of the financial leasing company from India argue that the financial leasing company in New York cannot demonstrate that the company from India is subject to the general personal jurisdiction of the court or specific jurisdiction under the long-arm statute. Additionally, the financial leasing company from India contends that an assertion of personal jurisdiction would violate the law of the constitution. The company from India also asserts that they are not doing business in New York because they don’t have an office and is not registered to conduct business in New York. The company from India contends their contacts with New York do not rise to the level of permanent and continuous because the few contacts they had with New York were through emails or by telephone. The financial leasing company from India further asserts that the company from New York contacted them proposing the discussion of the potential business relationship. Subsequently, the parties discussed the terms of a possible partnership in developing lending services. Then, the financial leasing company in New York sent an email listing the services they can provide and a draft of the memorandum of understanding. And, the president of the company stated that it is for further discussion of the terms, asserting that no agreement was reached as to the terms or conditions of the project. However, a Nassau County Personal Injury Lawyer said financial leasing company in New York sent an invoice to the company in India for $2,897 for their consultant’s travel to India which includes lodging expenses and worker’s compensation, which the company in India paid but India refused to pay the remaining invoice of $25,000 from the New York Company.

Further, the president of the company in India does not establish that she had any contacts with New York. With her affidavit she stated that she does not reside in and does not regularly visit New York, she does not own property and has no bank accounts or a mailing address in New York. The president was served with the papers pertaining to the present proceedings in India and stated that requiring her to defend herself in New York would be an unfair burden on her.

An NYC Personal Injury Lawyer said the financial leasing company from India argues that the only related allegation in the complaint regarding their New York contacts is that the leasing company from India agreed to the terms of the agreement through the email and such allegation is insufficient to establish personal jurisdiction over the opponent. It does not establish that the financial leasing company from India transacted business in New York and even if they did, there is no significant relationship between such transaction and financial leasing company in New York’s claim. Finally, the financial leasing company from India contend that, if the complaint is dismissed, financial leasing company in New York will still have a convenient and effective relief because according to their website, there company has an office with an address in India and Indian courts have control over the parties.

The financial leasing company in New York opposes the dismissal of the complaint, arguing that personal jurisdiction over the opponent exists even though they do not have physical presence in New York and the parties discussed the terms of the project by means of email and telephone. To begin with, financial leasing company in New York contends that the motion is defective because it is not supported either by an attorney affirmation or by affidavit.

The financial leasing company in New York contends that the court can exercise personal jurisdiction over their opponent’s company because they have minimum contacts with New York. The financial leasing company in India availed themselves of the benefits of the forum by using the company in New York’s consulting services, knowledge and the unique automated profile-matching algorithms program. In support of its contention, the financial leasing company in New York points out that the need analysis report was prepared in New York. In addition, the financial leasing company in New York also submits a copy of the article of the journal co-authored by the president of the company in India, which refers to the project of development of microfinance services in India. The financial leasing company in New York also claimed that the financial leasing company in India holds recruiting information sessions and speaking engagements at one the New York University of Business. Additionally, the president held a presentation at one of the business school about company in India’s efforts in bringing financial services to rural population in India. As well the company’s corporate and investor’s relations manager came to New York to speak at the microfinance investment conference.

After the arguments, the court ordered that the motion by the financial leasing company from India and its president to dismiss the complaint of the New York’s company’s allegation of lack of personal jurisdiction is granted. It further ordered that the financial leasing company from India and its president shall serve a copy of the order with notice of entry to the financial leasing company in New York.

The most valuable asset of businesses is good credibility. It is very important to maintain a good name that is away from intrigues and disgrace. A NYC Personal Injury Lawyer is capable enough to handle cases of indignity and conspiracy against any company. When you are in need of legal determination with regard to your compensation, or have been injured in a car accident, medical malpractice case or are a victim of negligence, our NYC Workers’ Compensation Lawyers at Stephen Bilkis & Associates are the excellent team to offer you more than enough legal knowledge.

April 24, 2012

Plaintiff Brings Medical Malpractice Claim for Injury that Ended in Abortion

On 27 December 1971, a woman (the mother) underwent an abortion at a hospital during the course of which her uterus was perforated.

In June of 1973, she commenced a medical malpractice action which was ultimately settled in June of 1979 for $175,000.

On 3 June 1976, four years after the alleged malpractice and three years before it was settled, the infant plaintiff was born to the woman.

On 26 September 1978, the instant action was commenced on behalf of the infant plaintiff. A New York Injury Lawyer said it is contended that as a result of the alleged malpractice of defendants in negligently perforating the mother’s uterus, seven years prior to this lawsuit, plaintiff was born with a damaged brain.

Does a cause of action lie in favor of a child for injuries suffered as a result of a preconception tort committed against the mother?

Had the alleged negligence not occurred and the mother’s uterus not been perforated, would plaintiff have, in all likelihood, been born normal?

A Long Island Personal Injury Lawyer said the defendants' alleged negligence made the difference between life in an impaired state and life in an unimpaired state.

When faced with a novel cause of action, sentiment should be put aside and the law must establish the rules ascribing liability in a manner which avoids the drawing of artificial and arbitrary boundaries. Though at the time the mother underwent an abortion in 1971 it was foreseeable that she would again conceive and that the health of children born thereafter could be adversely affected by damage to her uterus, this foreseeability alone does not establish a duty to plaintiff on the part of defendants. A Manhattan Personal Injury Lawyer said the court has held in a number of cases that foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability.

Thus, were we to establish liability in this case, could we logically preclude liability in a case where a negligent motorist collides with another vehicle containing a female passenger who sustains a punctured uterus as a result of the accident and subsequently gives birth to a deformed child (birth injury or birth injury accident)? Unlimited hypotheses accompanied by staggering implications are manifest. The perimeters of liability although a proper legislative concern, in cases such as these, cannot be judicially established in a reasonable and practical manner.

The recognition of a cause of action under the circumstances of this case would have the undesirable impact of encouraging the practice of "defensive medicine". A physician faced with the alternative of saving a patient's life by administering a treatment involving the possibility of adverse consequences to later conceived offspring of that patient would, if exposed to liability of the magnitude considered in this case, undoubtedly be inclined to advise against the treatment rather than risk the possibility of having to recompense a child born with a handicap. Society as a whole would bear the cost of our placing physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger.

While the temptation is always great to provide a form of relief to one who has suffered, it is well established that the law cannot provide a remedy for every injury incurred. In defining the common law, it is the court's duty to consider the consequences of recognizing a novel cause of action and to strike the delicate balance between the competing policy considerations which arise whenever tort liability is sought to be extended beyond traditional bounds.

The recognition of a cause of action under the circumstances would require the extension of traditional tort concepts beyond manageable bounds.

Accordingly, the order of the Appellate Division is affirmed and the complaint is dismissed.

Losing a loved one is a sad phase in one’s life. But when a loved one lives with deformities, it is far more heart-breaking. And if the deformities were for causes attributable to the negligence of another, the emotional pain is just unimaginable and could be too much for anyone to handle.
If you have been wronged and injured by negligent individuals, companies or entities, know your legal options. Contact Stephen Bilkis & Associates. We have the best New York Medical Malpractice Lawyers, New York Birth Injury Accident Lawyers, among others.

April 23, 2012

Appellant Contends Wrongful Eviction

The appellant in this case was Mamie R. Jemison, while the respondent was Grantley E. Crichlow.

CPLR 215(1)

A key factor in the case is that CPLR 215(1) states that when an action is brought against a sheriff as a result of an action or lack of an action performed in the official capacity of that office, that the action must start within a year of the accrual of the cause of that action (or omission of fulfillment of his duty). A New York Injury Lawyer said there is an exception provided for within CPLR 215(1), but it does not apply in this case. The plaintiffs in this case assert that Grantley E. Crichlow is not covered by the terms of CPLR 215(1) or two reasons. The assertion is that it does not apply to City Marshals. The second is that the year-long statute of limitations is not applicable when allegations of malevolent misconduct or allegations of intentional misconduct are the cause of the initiation of the action.

City Marshals and Maliciousness

Kolomensky V. Wiener shows that the court has recently determined that City Marshals are covered under the terms of CPLR 215(1). This resulted in the first protest being immediately rejected as regards the applicability of CPLR 215(1). The second argument was also rejected. CPLR 215(1) is worded plainly, and no interpretation provides for an exemption based on perceived maliciousness of a given action.

The Complaint

The allegations of the plaintiffs states that on April 11, 1983, they were evicted from an apartment. Allegedly, Crichlow, who has a license as a process server and who serves as a City Marshal, forcibly evicted them from a residence at West 31st Street, Brooklyn New York. This eviction was performed pursuant to a Kings County Civil Court judgment entered upon the default of the plaintiffs. A Long Island Personal Injury Lawyer said the complaint alleges that Crichlow falsely stated in a filing with the court that a previous dispossess notice had been served to the tenants of the apartment. This omission was declared to be committed willfully and with the full knowledge of Crichlow according to the terms of the original complaint. Allegations of negligence in the performance of his duty were also levied against Crichlow.

History

The following events lead up to the presently discussed action.

1. Plaintiff's sought financial compensation and damages for their eviction, while also claiming other issues such as trespassing, intentional infliction of emotional distress, inference with contractual relations, constitutional right violations, etc. etc.
2. Crichlow moved that the complaint be dismissed due to the elapsed time in regards to the Statute of Limitations and because no cause of action had been stated.
3. The plaintiff's attorney opposes that motion was filed to obtain an extension when the end of three years outlined in the Statue of Limitations was about to elapse.
4. It was found that all of the plaintiff's causes for action should be prevented as a result of the Statute of Limitations.

Results

A Manhattan Personal Injury Lawyer said as a result of the applicable Statutes of Limitations as determined by the court, all the causes of action originally filed by the plaintiff were dismissed except one. The original order which dismissed the ninth cause of action is modified by the deletion of that provision. The replacement provision stated that Crichlow's motion denying that cause of action be denied. The first complaint was eliminated as a result of a one-year statute of limitations, the rest as result of a three-year statute of limitations. The order was modified so that the plaintiff's claim that their constitutional rights had been violated was reinstated.

When a legal matter arises, whether it is from a car accident, eviction or medical malpractice incident, Stephen Bilkis & Associates are there to help you evaluate your legal options. Our lawyers understand any circumstance that you might find yourself in, and will strive to obtain a favorable outcome for you. Free consultations are available at our offices found throughout metropolitan New York.

April 22, 2012

Infant Born With Impaired Eye Sight Due to Medical Malpractice

On 2 January 2004, infant-plaintiff’s mother first presented to defendant-doctor for prenatal care. The defendant-doctor determined that the mother’s estimated delivery date was 10 July 2004.
On 25 February 2004, an ultrasound was performed, which revealed that the fetus' arithmetic ultrasound age was identical to its gestational age, as well as average measurements for weight, head size, abdominal circumference, and femur length.

A New York Injury Lawyer said on 24 April 2004, a second sonogram was again normal in all respects.

On 30 June 2004, a third and final sonogram was performed and revealed an arithmetic ultrasound age of thirty-five weeks and four days; the gestational age was thirty-eight weeks and five days. The sonogram also revealed that the ratio of head circumference to abdominal circumference was 1.09, outside the normal range of 0.92 to 1.05. The estimated fetal weight was 2482 grams.

On 4 July 2004, the mother reported to defendant-hospital after her membranes ruptured and was placed on a fetal heart monitor. At approximately 3:00 p.m., she was examined by a resident physician. A Long Island Personal Injury Lawyer said the physician reported that the infant-plaintiffs head was at the ischial spines or at the "0 station." According to the examination before trial ("EBT") testimony, she was not involved in the mother’s care beyond the 3:00 p.m. examination. However defendant-doctor testified that, at approximately 10:40 p.m., the resident physician called him and "asked what a cord prolapse felt like."1 After receiving the call, defendant-doctor rushed to the mother’s room and examined her. Defendant-doctor confirmed that the umbilical cord had passed through the mother’s cervix and into her vagina before the baby, which presents a risk of compressing the umbilical cord and cutting off the baby's oxygen and blood supply. Defendant-doctor ordered an emergency Cesarian section ("C-section") and the mother arrived in the operating room at 10:54 p.m. In the operating room, the infant's head was noted to be above the ischial spines at the "-2 station," but in his EBT testimony, defendant-doctor claimed that the he probably erroraneously made that notation.

According to the mother’s EBT testimony, once in the operating room, a nurse placed her finger into her vagina. This was done in order to push the infants head up and relieve any pressure on the umbilical cord. At approximately 11:09 p.m., the infant-plaintiff was delivered via C-section with normal Apgar scores. The infant-plaintiffs cord blood gases were also normal.

In April 2006, infant-plaintiff was diagnosed with congenital motor nystagmus, an impairment of vision. In August 2006, infant-plaintiff, who was 21 months old at the time, exhibited developmental delays. In February 2007, his pediatrician believed that he had a developmental disorder and possibly autism. In March 2007, when infant-plaintiff was 2 years and 8 months old, his pediatrician noted that infant-plaintiff had pervasive developmental disorder ("PDD"). On 17 May 2007, infant-plaintiff underwent an MR1 of the brain, which was unremarkable.

On or about 27 August 2007, an action for medical malpractice was filed by plaintiffs, infant-plaintiff and mother, which centers on the prenatal care administered to and the delivery of the infant-plaintiff in June and July 2004. Plaintiffs allege that the infant-plaintiff suffered from hypoxic-ischemic brain injury during the prenatal and delivery period (birth injury or birth injury accident), which caused cognitive and behavioral deficits.

On 30 October 2008, after the depositions were complete, infant-plaintiff underwent an independent medical examination ("IME") where it was concluded that infant-plaintiff demonstrated delays mostly in fine motor and in his personal-social skills, and mild or no delays in his gross motor and language skills.

Both defendants now, separately, seek an order granting them summary judgment and dismissing the action.

The party moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing "that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged." A Manhattan Personal Injury Lawyer said to satisfy their burden, defendants must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. If the movant makes a prima facie showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Specifically, in a medical malpractice action, a plaintiff opposing a summary judgment motion must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiff’s injuries. In order to meet the required burden, the plaintiff must submit an affidavit from a medical doctor attesting that the defendant departed from accepted medical practice and that the departure was the proximate cause of the injuries alleged. The plaintiff's expert opinion testimony must also be founded in facts in the record, not merely consisting of general or conclusory statements of negligence, in order to rebut defendant's prima facie showing. On the other hand, a defendant hospital that is seeking summary judgment in a medical malpractice action may also argue that the alleged malpractice was committed by a private attending physician or by hospital staff under the "directions of the attending physician." In such circumstances, the "hospital is sheltered from liability." However, a hospital "may be held concurrently liable with a private physician for the independent negligence of its medical staff."
Defendant-doctor relies on the affirmations of two physicians. While defendant-hospital argues that it is not liable for malpractice, if any, because its staff acted under the direction of defendant-doctor, a private attending physician. It also relies on the affirmations of three physicians.

In opposition, plaintiffs rely on the affirmations of three physicians.

In the first affirmation, the medical expert maintains that plaintiff first exhibited signs of distress on 30 June 2004, when the third sonogram was taken. The sonogram manifested that the estimated fetal weight was below normal and sets forth that it was below the fifth percentile. He notes that the ratio of head circumference to abdominal circumference was also below normal. The medical expert states that these characteristics clearly indicate the presence of intrauterine growth restriction ("IUOR"); that "hypoxia caused by placental insufficiency is one of the most significant problems found in infants with IUOR"; therefore, the infant-plaintiff should have been delivered immediately. The medical expert maintains that it was a deviation from the standard of care to postpone delivery until spontaneous birth. As to the care rendered at NYU on 4 July 2004 prior to the delivery, the medical expert notes that the infant-plaintiff was at "0 station" after the resident physician’s examination at approximately 3 p.m. and then at the "-2 station" in the operating room at approximately 10:54 p.m. the medical expert asserts that the fact that the infant-plaintiffs head went from a low position to a high position is evidence that "outside force acted upon it." The medical expert maintains that this force was from a pelvic examination administered by the resident physician sometime before the umbilical cord prolapse. He asserts that this newly created space allowed the cord to prolapse and was the result of a deviation from the standard of care. The medical expert further asserts that hospital staff should have immediately elevated the infant-plaintiff’s head once an umbilical cord prolapse was diagnosed in order to take pressure off the umbilical cord. He notes that the mother testified that a nurse did not do so until fourteen (14) minutes after the cord prolapse, which was a deviation from the standard of care. The medical expert also maintains that between 10:40 p.m. and 10:55 p.m., a series of deep variable decelerations were apparent on the fetal monitoring strips, which indicated that the umbilical cord was being compressed. With respect to the normal Apgar scores and normal gases measurements, the medical expert asserts that hypoxic brain injury can occur without any "grossly obvious clinical signs in the neonatal period." He maintains that Apgar scores only measure catasphrophic losses of oxygenation.
In the second affirmation, the medical expert maintains that infant-plaintiff has sensory motor integration deficits and fine motor delay that are the result of brain injury and are not related to his vision impairment.

In the third affirmation, the medical expert notes that infant-plaintiff has significant cognitive and development delays, but she asserts that he is not suffering from PDD. The medical expert maintains that the infant-plaintiffs delays and deficits are consistent with hypoxic-ischemic brain injury.

In view of the above, as to plaintiffs' allegations of medical malpractice, the court finds that defendants have met their prima facie burden. Their experts' affirmations eliminate material allegations of malpractice and causation by sufficiently detailing the infant-plaintiffs prenatal and postnatal course as normal and by describing how the infant-plaintiffs current condition is unrelated to brain injury. Nonetheless, plaintiffs' experts have adequately offered an alternative theory as to the cause of infant-plaintiff’s undisputed developmental delays.
Hence, summary judgment is denied.

On the issue of vicarious liability for medical malpractice of defendant-hospital, plaintiffs' expert has pointed to several facts that support plaintiffs' contention that a defendant-hospital’s staff member performed a negligent pelvic examination that proximately caused the infant-plaintiffs injury. Taking this allegation to be true, there is no indication that the manner in which the pelvic examination was conducted was directed by defendant-doctorz. It is an independent act of alleged negligence.

Hence, summary judgment is not warranted.

On defendants' complaints in their replies about the factual inferences drawn by plaintiffs' experts concerning the credibility of evidence, it must be noted that it is not the court's function on a motion for summary judgment to assess such credibility.

Birth injuries sustained as a result of a medical malpractice is always heart-breaking. No person in their right mind could bear seeing a baby suffer an injury which will most likely be a permanent damage. If you want to know more about these types of cases and what you can do about it, consult with Stephen Bilkis & Associates. The best New York Medical Malpractice Attorneys or New York Birth Injury Attorneys, among others, will assist you and help you with your queries.

April 21, 2012

Plaintiff Seeks Summary Judgement

On 26 May 2000, the infant plaintiffs (plaintiff-one and plaintiff-two), male twins were born prematurely at a hospital.

A New York Injury Lawyer said two separate actions arising out of the delivery of the infant plaintiffs were commenced. These two separate actions were joined for all pre-trial purposes and for trial, but were not consolidated as one Justice has opined that "Joint trial, rather than consolidation, will allow the trial judge to fashion procedures according to fairness." Therefore, separate motions should have been made; however, a separate motion for summary judgment has not been filed for the second action. Hence, the court will consider the motions only as they relate to the first action, concerning infant plaintiff-one.

The amended complaint is premised upon claims sounding in medical malpractice, lack of informed consent, a derivative claim for money damages, and further claim for emotional distress. It is claimed that infant plaintiff-one suffered, a birth injury or birth injury accident, particularly, neurological damage as a result of the negligence of the neonatologist (defendant-one), the obstetrician (defendant-two) and the hospital (defendant-three) where the children were born.

The mother alleges that she has been caused to expend various sums of money and suffer emotional distress due to the negligence of defendants. She claims the infant plaintiff-one was caused to sustain perinatal asphyxia causing him to suffer, inter alia, intracranial hemorrhage, leukomalacia, periventricular leukomalacia, laryogomalacia, brain damage, mental retardation, cerebral palsy, spasticity and spastic diplegia, cognitive defects, exotropia, ambyopia 0.S., severe delays in speech and language development, inability to perform all daily activities of speech and walking, severe delay in achieving milestones, severe impairment of fine motor skills, severe learning impairment, severe perceptual deficits, severe impairment of fine motor skills, respiratory distress, inability to interact with peers, loss of earning capacity, capability and opportunity, necessity for physical therapy, speech therapy and the need for future surgeries to treat the various contractures .

A NYC Personal Injury Lawyer said that the moving defendants allege there were no departures from the appropriate standards of care and treatment with regard to the care and treatment rendered to plaintiff and the infant plaintiffs and thus seek summary judgment dismissing the complaints.

Are the defendants entitled to a summary judgment?

The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage. To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury. Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and must "show facts sufficient to require a trial of any issue of fact". The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. A Manhattan Personal Injury Lawyer said that a summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law.

Defendant-one presented various evidences in support of his defense. His medical expert opines with a reasonable degree of medical certainty that he acted appropriately and treated the infant plaintiffs within the accepted standards of medical care and that no action or inaction by him was the cause of any of the alleged injuries suffered by the infant plaintiff-one.

Defendant-one’s medical expert opines that both infants had brain damage at the time of birth, which, he states, was caused by a process that began significantly before the infants were born, and that no action or inaction by the defendant-one caused the brain damage or the injuries alleged; that infant plaintiff-one was significantly anemic with a hematocrit level of 36 at birth, and had significant brain damage documented on ultrasound shortly after birth, which, is strong and crucial evidence that the process that caused the infant-plaintiff-one to have periventricular leukomalacia began at least one week prior to birth; that the process of death of brain tissue and the resulting damage that can be seen on ultrasound takes a minimum of one week to develop and at least one week from the process to show up on an ultrasound; and that infant plaintiff-one suffered from an hypoxic-ischemic insult during the time he was in his mother's uterus, which insult decreased blood flow to the baby's brain.

Accordingly, the court finds that defendant-one has demonstrated prima facie entitlement to summary judgment on the issue of negligence and proximate cause.

Defendant-two also presented various evidences in support of his defense including two medical experts. However, the affirmation of his 1st medical expert has been excluded for it does not comment on the standard of care of an obstetrician during labor and delivery and the perinatal-neonatal period and therefore does not address the issues of whether or not defendant-two departed from accepted medical practice during his care and treatment of the mother and delivery of the infants. Defendant-two’s 2nd medical expert opines based upon a reasonable degree of medical certainty that he did not depart from good and accepted medical practices in his care and treatment of the mother. The 2nd medical expert states that defendant-two treated plaintiff mother as a high risk pregnancy, she was seen at proper intervals and had obstetrical sonograms, blood tests and evaluations appropriate to a high risk pregnancy.

The court finds that the notes or medical records presented by defendant-two are inconsistent with his medical expert’s opinion that "an infant sustaining asphyxia and/or hypoxic/anoxic event during the course of labor and delivery would not rebound in such manner and would remain depressed for a significant period of time." The medical records do not indicate the infant rebounded upon delivery. Although the medical expert opines the infant's heart rate remained at 130's throughout the procedures and delivery, it is documented as being in the 80's at birth and that the infant needed immediate intubation, ventilation, and was not responsive to any stimuli. There are factual issues raised concerning the medical expert’s opinion that the infant rebounded, and what is documented in the medical records.

Moreover, defendant-one’s note which considers that there was hypovolemia secondary to bruising, possible central nervous system injury and intraventricular hemorrhage also raises factual issues concerning the opinion of defendant-two’s medical expert that infant plaintiff-one did not suffer asphyxia and/or an hypoxic/anoxic event during the course of labor and delivery. The neonatal attending note (of defendant-one) indicated that it was a difficult delivery, R/O CNS trauma. The existence of these critical, triable, factual issues presented precludes summary judgment.

Accordingly, the court finds that defendant-two has not demonstrated prima facie entitlement to summary judgment and motion is therefore denied.

Defendant-three also presented various evidences in support of his defense including affirmations of a medical expert and a nurse; however, the affirmation of the latter did not constitute competent evidence. The rules provide that while certain persons are authorized to make an affirmation without appearing before a notary, nurses are not among them. On the affirmation of the medical expert, he expressed within a reasonable degree of obstetrical certainty that the hospital, by way of its staff, did not depart from good and accepted standards of obstetrical care and treatment of plaintiffs, that ail the care and treatment was appropriate, and that none of the allegations made by plaintiffs have any merit concerning the care and treatment rendered.

Defendant-three’s medical expert states that the hospital received the mother at her physician's directive and timely and appropriately carried out all his orders; the staff had no authority to override defendant-two’s orders; the mother’s staining was due to rupture of tiny blood vessels as the cervix softened and dilated and was not medically significant; the hospital had no duty to assign another obstetrician; the staff was in contact with defendant-two and appropriately apprised him of contractions and fetal heart rate; and that the hospital had no duty to transfer the mother to another hospital prior to her deliveries for it would have been more hazardous to risk delivery of premature twins in an ambulance or the roadside.

Accordingly, the court finds that defendant-three has demonstrated prima facie entitlement to summary judgment.

Now, the burden shifts to the plaintiffs to prove that triable issues of fact exist.

The plaintiffs have presented the affirmations of their obstetrical and pediatrics expert, among others.

Plaintiff's obstetrical expert opines with a reasonable degree of medical certainty that defendant-two and the hospital staff departed from good and accepted practice in the management of the labor and delivery of both infant plaintiffs, and that as a result of these departures, both infant-plaintiffs suffered permanent brain damage.

Plaintiff's obstetrical expert states that defendant-two had an obligation to evaluate the mother every three weeks and obtain a consultation by a perinatologist but did not do so. Defendant-two departed from good and accepted medical practice as he did not recognize the mother as a high risk.

Plaintiff's obstetrical expert opines that once defendant-two was informed by the mother that she was experiencing contractions and spotting blood, he should have known this was an ominous sign that she was experiencing premature labor, and because she was carrying twins with a distinct possibility of premature delivery, the standard of care dictated that he instruct her to go to another hospital with a level III Nursery equipped to deal with low birth weight infants and critical conditions to avoid further brain damage. This failure was a departure from accepted practice.
Plaintiff's obstetrical expert states that the mother was not evaluated by any physician or nurse for her first 43 minutes at the hospital, and the nurse testified that defendant-two never instructed her to do a vaginal exam, nor did he instruct her to call another obstetrician to evaluate the mother. Good practice dictated that if another obstetrician evaluated the mother during that 43 minute delay, a sonogram would have been performed revealing the presentation of each twin, followed by a vaginal examination revealing the station and dilation of the cervix, and in considering infant plaintiff-two was in a transverse lie, an immediate C-section would have been ordered avoiding significant injury to the twins. He states that there was no infection and that it played no role in the events in question.

Plaintiffs’ expert further opines that defendant-two departed from accepted standards by attempting a breech delivery instead of immediately performing a stat C-section to avoid further trauma and not as devastating hypoxic/ischemic brain damage. This attempted breech delivery caused further trauma to the infant as demonstrated by his bruising which was a significant factor in causing infant plaintiff-one’s devastating brain damage attributable to the external version, internal podalic version and external version and extraction.

Plaintiffs' expert further opines that the nursing staff of the hospital departed from good practice as it relates to the management of the labor and delivery of the mother. Good standards dictated that the attending nurse should have spoken to defendant-two to get permission to have another obstetrician examine the mother, or have the supervisor call defendant-two to come to the hospital immediately or have another physician examine the mother. Proper examination would have led to discovery of the transverse lie which would have led to an immediate C-section.

Plaintiffs' expert further opines that it was a departure from good practice by the hospital and the attending nurse not to do an ultrasound upon admission of the mother to determine the presentation of the fetuses, thus revealing the transverse lie, followed by vaginal examination and immediate C-section. This failure was a significant factor in causing the twins to suffer significant brain damage.

Plaintiffs also submitted the affirmation of their pediatric expert who states that that defendant-two and the nursing staff the hospital departed from good and accepted practice in the management of immediate neonatal care of both infant-plaintiffs, and as a result of these departures, both infant-plaintiffs suffered permanent brain damage.

Plaintiffs' pediatric expert opines that infant plaintiff-one was the product of both a premature and traumatic delivery process and was gasping for air at birth. He was noted by both defendant-one and the staff at the hospital to be severely bruised and battered; that it is clear that at the time of his delivery, infant plaintiff-one experienced significant brain injury from his prematurity and the traumatic delivery he experienced as evidenced by his Apgar scores, oxygen saturation levels, his significant anemia and respiratory capacity, all caused by hypoxic/ischemic damage suffered around the time of birth; that the significant anemia was caused by the traumatic delivery he experienced at the hands of defendant-two and the hospital’s staff due to bruising of his head and body.

In view of the above, the Court finds that plaintiffs have raised material, triable issues of fact precluding summary judgment to all three defendants.

The court's function in deciding upon a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility but to determine whether issues of fact exists precluding summary judgment.

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April 20, 2012

Plaintiff Claims Amniocentisis Caused Child's Death

A 35-year old woman came to an obstetrician asking him to care for her during her pregnancy. A New York Injury Lawyer said the obstetrician noted the advanced age of the mother and suggested that the woman undergo an amniocentesis to rule out any genetic abnormalities in the child. On July 30, 1980, when the woman was into her 16th week of pregnancy, the obstetrician performed the amniocentesis.
The amniotic fluid sample could not be processed by the laboratory because the fluid contained an excessive amount of blood. Weeks later during a routing pre-natal check-up, the obstetrician could not detect the fetal heartbeat.

The woman then went to another obstetrician who told her that her fetus died while in the womb. On September 6, 1980, the lady was induced to go into labor in order to expel the dead fetus. When the fetus was expelled, the second obstetrician noted that the body of the fetus had three puncture marks with blood clots. The second obstetrician then told the woman that it was his opinion that the puncture wounds on her baby was caused by the amniocentesis performed by the first obstetrician.

The woman filed a case for medical malpractice against the first obstetrician alleging that his negligence in performing the amniocentesis caused her baby’s death. The woman however did not allege any physical injury sustained by her other than the pain and suffering sustained by the fetus. She sought to recover for her pain, severe disappointment, anxiety, despondency, bitterness and suffering.

The obstetrician moved for summary judgment alleging that the fetus was not considered under the law as a “person” capable of suing until it is born alive. Since the fetus was born dead only at 16 weeks, it had no personal capacity to sue. The woman also did not allege any particular physical pain she suffered, such that any consequent emotional pain and suffering she may have had cannot be the basis for recovery of damages.

The trial court granted the motion for summary judgment and dismissed the complaint. A Long Island Personal Injury Lawyer said the woman then appealed to the Supreme Court. The only question she presents before the Court is whether or not the summary judgment dismissing her complaint was proper.

The Court ruled that although they sympathize with the woman, the law is clear that she cannot recover damages for her emotional distress if she fails to allege any physical injury directly sustained by her as a result of the obstetrician’s medical malpractice or negligence.

A Manhattan Personal Injury Lawyer said that although it is clear that the obstetrician committed an injury to the fetus, the fetus was not yet a “person” in contemplation of law that can sue for the pain and injury it sustained. The sixteen-week old fetus has no personality or existence apart from its mother but it is not a body organ or a member of its mother such that injury to the fetus should be considered as injury to the mother. The mother’s pain and suffering at the loss of her baby and at its stillbirth, while real, is not the same as the pain and suffering of the fetus itself. Thus, the loss of the woman’s child while extremely emotionally devastated is not a legal injury for which damages can be recovered. The obstetrician owed a legal duty to care for the pregnant mother but had not legal duty to care for the fetus, thus, the woman should have alleged direct physical pain suffered by her and not just by her fetus.

The Court upheld the trial court’s dismissal of the complaint.

A New York City Medical Malpractice Lawyer has the duty to allege negligence on the obstetrician’s part or, to allege that the obstetrician committed a medical malpractice by deviating from accepted medical practice. A New York Medical Malpractice Attorney has also to allege that the negligence or medical malpractice of the doctor directly resulted injury to the pregnant woman in his care. At Stephen Bilkis and Associates, their NY Medical Malpractice lawyers will assist you by making sure you have a viable cause of action for negligence or medical malpractice. Call Stephen Bilkis and Associates at any of their offices in the New York area.

April 19, 2012

Plainiff Contends Patient-Doctor Confidentiality was Breached

A woman is facing a case against her for causing the death of a child which was found in a plastic bag by the police inside her house. The child found was said to be given birth recently by the woman. An indictment is filed and she is being charged with murder in the second degree, man slaughter in the first and second degree, and endangering the welfare of a child.

A New York Injury Lawyer said that the defendant woman filed for the re-inspection by the court of the grand jury minutes to determine the admissibility of evidence since it was acquired through the violation of the physician-patient privileged communication and search warrant was properly obtained.

The judged, in an oral decision, agreed to the re-inspection of the minutes. This will determine if there is a probable cause to issue a search warrant of the defendant’s house, whether the evidence presented will be sufficient to support the charge of manslaughter in the first degree, which requires the “intent to cause an injury”, and lastly, whether the indictment should be dismissed.

Based on the summary of evidence before the grand jury, one medical technician, in her testimony, she received a call that the daughter of the caller was bleeding. When she arrived at the house, she went upstairs and found the daughter which was the defendant in the case. The defendant was found in the toilet, and she was sweating, clammy, and there were also blood clots found on the floor. The medical technician asked the defendant if she was pregnant or recently pregnant, which was answered in the negative. The defendant was then brought to the hospital.

Another testimony was given by a police officer. He said, he was responding to an order made by his supervisor telling him that the hospital called that they have a woman who, apparently, gave birth but the baby was missing. When the police officer reached the house of the defendant, they were greeted by the defendant’s sister. They asked her if the baby was with her, she said that she did not know anything about the baby. The police officers persistently asked her if the baby was inside the house, she only said that there were plastic bags in the back of the house. A Long Island Personal Injury Lawyer said they found a female baby inside a black garbage bag which was also inside a shopping bag. The baby was wrapped in a bloody towel and she still had her umbilical cord attached. The baby was taken to the hospital by the ambulance lifeless.

A doctor, who was an expert in forensic pathology, made an autopsy to the baby. Based on the test, the baby was recently born, fully-formed, was born alive and had her umbilical cord attached to her. The baby girl was found be live long enough to breathe because of the bubbles found in her intestines. The doctor believed that the cause of death to be “asphyxia and hypothermia due to environmental exposure to cold temperature” and the manner of death to be homicide. In her opinion and based on a reasonable degree of medical certainty, her conclusion is to be in line with that the baby was placed inside a plastic bag and was left to die outside in the cold for several hours.

The defendant questions the admissibility of the evidence. She believes that information she disclosed to the medical technician and doctor were both under the physician-patient privileged communications and cannot be used to warrant the search of her house. The fruits obtained from the illegal search should be inadmissible in court.

The court ruled that the privilege does not apply to this case because it involves communication made to a medical technician who is not a physician or is employed by a physician.
On the other hand, the privilege is not limited to direct communications between the physician and patient. Those information which they have acquired in attending the patient in their professional capacity, and which was necessary to enable them to act in their capacity are also covered by this privilege. The form in which the information may be stored whether in the memory of the doctor or in medical records is not important, as long as it is protected by under the physician-patient communication. However, the because of the defendant’s condition in the hospital, a normal person would have readily perceived that she has recently given birth, and the privilege will not apply.

Based on a constitutional doctrine, police can enter the premises without a search warrant to protect individuals in distress, to assist victims of crimes that have just occurred, or to investigate suspicious signs of impending danger. The search of her house was done after she was treated and found out that she gave birth. Emergency exists because the baby was missing. The exception applies to the case and evidence acquired will be admissible in criminal prosecution.

A Manhattan Personal Injury Lawyer said it has been judicially recognized that the privilege communications between physicians and patients must be overcome in instances where silence would place an innocent person’s life in jeopardy and that the disclosure of the confidential information made under these circumstances may later be used against the patient in a criminal proceedings. This is called the “Tarasoff exception.” Based on this, the privilege can be overcome provided that the patient demonstrates clear and present danger to a third party. In this case, the baby’s life was in danger. The disclosure made by the medical technician and hospital is covered by the Tarasoff exception and it overcomes the privilege communication, making the evidence acquired admissible.

The evidence acquired showed that the defendant was indeed recently given birth and denied to the medical technician that she had done so, also withheld from the medical technician the information of the whereabouts of her baby, who was found by the police officers outside her house on a cold night several hours after, wrapped in bloody towels and inside a garbage bag, and was left to die. The evidence supports a rational inference that the defendant recklessly engaged in conduct which created a grave risk of serious physical injury or death to her baby and thereby caused the baby’s death. This sustains the decision charging her of murder in the second degree.

Manslaughter counts in the first and second degree were also sustained based on the rational inference that could be drawn from the acts of the defendant, with intent to cause physical injury to the baby, recklessly engaged in conduct creating grave risk of serious physical injury to the baby and thereby caused the baby’s death.

Finally, the defendant’s charge on endangering the welfare of a child was also sustained based on that it can be inferred that the defendant knowingly acted in a manner likely to be injurious to the physical welfare of the baby.

Privilege communication is one of the many rights guaranteed to us by the constitution. Evidence acquired in violation of our rights should be inadmissible and cannot be used against us. Stephen Bilkis and Associates can recommend NY medical malpractice lawyers that can help protect these rights. NY Injury lawyers can also give advice on how we can collect from those who caused us injuries.

April 19, 2012

Plaintiff Sues Doctor for Severe Birth Injuries

A dermatologist was pregnant. Three weeks before she gave birth, dermatologist reported to her obstetrician that she had been experiencing abdominal pain, vomiting and she could not hold any food down. The woman had lost weight during the last few weeks of her pregnancy instead of gaining weight.

A New York Criminal Lawyer said the dermatologist was diagnosed with an infected gall bladder and gall stones at the time that she delivered her baby. The obstetrician claims that the mother made no such complaints to her. She claimed in her deposition that the pregnancy proceeded uneventfully.

The dermatologist had to undergo a cesarean section. In the delivery room, the circulating nurse noted on the chart that the amniotic fluid was clear. The obstetrician made a handwritten note on the margin of the delivery report that there was no meconium present. An intern at the neonatal intensive care unit where the child was transferred after his cesarean delivery noted that meconium was present.

The dermatologist, however, insisted that when the baby came out, it was covered with thick brown goo. The dermatologist claims that her gall bladder infection and her gall stones which the obstetrician failed to diagnose in time caused her baby to be distressed. The baby’s distress caused it to pass meconium while still in the uterus and this is what caused the child to have breathing difficulties. The dermatologist claimed that her baby had aspirated the meconium into his lungs because of the prolonged distress he suffered.

After the baby was extracted from the mother, the doctor had to ventilate the baby. A Queens Personal Injury Lawyer said the baby was bluish, pale and could not breathe well. The baby’s mouth had to be suctioned but they also felt the urgency to use four kinds of suctioning procedures in order to remove as much fluid from the baby for fear that the child had ingested or aspirated something. The only kind of suctioning that the staff at the hospital did not do is the endotracheal suctioning. The dermatologist insisted that had the staff performed this deep kind of suctioning, they would have removed the fluid or meconium which eventually got aspirated deep into the right lung of the baby.

Days after the child had been delivered; he still had difficulty breathing so the doctors ordered an x-ray. The x-ray indicated some sort of growth which the pulmonologist suspected as a tumor or cyst. The pulmonologist suggested that a CT-scan be performed on the child.

A CT-scan requires the child to be immobile during the procedure. So the radiologist informed the dermatologist that her baby will have to be anesthetized during the CT-scan. The dermatologist expressed concern about using general anesthesia on the baby because the baby was already having breathing difficulties. The radiologist agreed to try to get the baby to sleep without general anesthesia but if she cannot then she will have to use the anesthesia Propofol. The radiologist went ahead and intubated the baby so that he received oxygen directly into his lungs during the CT-scan. When the scan was almost over, the baby started having seizures. The radiologist gave the baby another dose of the Propofol instead of giving the baby Phenobarbital which is the usual first aid to stop seizures. The baby was not given Phenobarbital until the baby was returned to the neonatal intensive care unit and had another seizure there.

Later the baby was diagnosed to be blind, suffering from cerebral palsy, brain damage and lung damage. A Staten Island Personal Injury Lawyer said the dermatologist sued the obstetrician for medical malpractice and negligence. She claimed that her failure to treat her gall bladder infection distressed her baby and caused it to pass meconium while it was still in her uterus. The dermatologist sued the hospital for medical malpractice and negligence for the failure of its staff to remove the meconium the baby had aspirated and for not effectively suctioning out the meconium but instead, driving it deeper into the baby’s lungs.

The dermatologist also sued the pulmonologist who recommended the CT-scan for medical malpractice and negligence: he failed to properly diagnose the problem with her baby’s lungs. She also sued the radiologist who performed the CT Scan for medical malpractice and negligence. She blamed the radiologist’s use of anesthesia on a child who was less than a month old. She blamed the radiologist for aggravating the child’s brain injury when the anesthesia she used caused the seizures.

The hospital filed a motion for summary judgment asking that the complaint be dismissed seeing as there is no proof that it was negligent in its care of the child or that in their treatment of the child they deviated from accepted medical procedure.

The doctors also moved for a Frye hearing. They question the dermatologist’s theory of how her baby got injured and they also question whether her complaint sufficiently establishes their liability.

With numerous affidavits of experts, the Supreme Court ruled that there are material issues of fact that have to be tried before a jury. These issues of fact include: whether the baby passed meconium at birth; whether the baby aspirated meconium; whether the baby’s seizures were caused by the anesthesia used; whether the anesthesia used caused more seizures to occur; whether the seizures exacerbated the baby’s brain injury.

The Court ruled that sufficient cause was raised in the complaint, which if proved, could render the doctors liable for medical malpractice and negligence.

A New York City Medical Malpractice attorney must prove that the doctors and the hospital sued were negligent. A NYC Medical Malpractice lawyer must also prove, in the alternative, that while treating your child, they deviated from accepted medical practices. At Stephen Bilkis and Associates, their NY Medical Malpractice attorneys will assist you in assessing whether the facts of your case can sustain a complaint for medical malpractice. Call Stephen Bilkis and Associates, speak with any of their New York Medical Malpractice Lawyers and begin the process of claiming just compensation for the injury your loved one sustained.

April 18, 2012

Plaintiff Alleges Medical Malpractice Caused her to have an Abortion

Plaintiff consulted defendant, a gynecologist, because she had not had a menstrual period for over three months and her "home pregnancy tests" were negative. A New York Injury Lawyer said that after a visual examination and with no blood or urine analysis, defendant informed her that she was not pregnant. Without explaining any of the attendant risks, he prescribed the hormonal drug Provera. When plaintiff had the prescription filled, she became aware--from the warning on the label and advice given by the pharmacist--that the drug was known to pose a serious risk of producing congenital defects in the child if ingested during early pregnancy. Relying on the defendant’s advice that she was not pregnant, plaintiff took the drug as prescribed. When menstruation did not occur, she consulted another gynecologist who ascertained from laboratory tests that she was indeed pregnant and cautioned her about the drug's potentially harmful effects on a fetus in early stages. Fearing that these harmful effects had occurred, plaintiff and her husband elected to have the pregnancy terminated.

Plaintiff alleges that defendants' negligence forced her either to risk having a congenitally defective child or to submit to an abortion in violation of her "personal, moral and religious convictions". She seeks damages for her physical, psychological, and emotional injuries resulting from the abortion and from having to decide whether to undergo it.

The court rules that the complaint and affidavits sufficiently define a cause of action in medical malpractice for the physical and emotional injuries suffered by plaintiff as a result of defendants' negligence in rendering medical services to plaintiff, and, thereby, breaching their duty of care owed directly to her.

Plaintiff is not seeking to recover for emotional distress resulting from injuries inflicted on the fetus. The breach of duty claimed by plaintiff is the defendant’s failure to perform a pregnancy test before advising her that she was not pregnant and before prescribing a drug with potentially harmful side effects if taken during early pregnancy. It is the erroneous advice that she was not pregnant and not an injury to a third person as in which, plaintiff asserts, led to the actions directly causing her injuries: her ingestion of the dangerous drug and her decision to terminate the pregnancy to avoid the drug's harmful effects. It is not an effort by plaintiff to assert a claim for damages on behalf of her unborn child for injuries done to it or a claim for damages based on plaintiff's emotional and psychological stress in witnessing and knowing of the injury to the fetus and its loss.

A Long Island Personal Injury Lawyer said the general rule is that an intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superseding cause absolving the defendant from liability. Thus, a reasonable attempt to avoid the danger created by a defendant's conduct--an action that should certainly be considered a "normal consequence" of that conduct--cannot amount to a superseding act which breaks the chain of causation.

A Manhattan Personal Injury Lawyer said applying these rules here and assuming the truth of the allegations in the complaint, it is apparent that plaintiff's "choice" to have an abortion cannot be said to be, as a matter of law, a superseding cause.

As the complaint alleges, the physician's negligent diagnosis and treatment were the precipitating causes of all that followed; but for the gynecologist's conduct, plaintiff would not have been in the position of having to choose between two objectionable alternatives: undergo an abortion or risk having a baby with serious birth defects (birth injury or birth injury accident). That plaintiff made the very choice forced upon her by defendants' negligence cannot insulate them from legal responsibility for such conduct.

The case presents a malpractice action based on medical advice which put plaintiff in the position of having to make decisions and take actions which caused her physical and emotional injuries.

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April 18, 2012

Woman Files Medical Malpractice Suit for Birth Injury

A woman was diagnosed to have Rh-negative blood. She conceived and gave birth to a baby in 1982 which had Rh-positive blood. A New York Injury Lawyer said to prevent the mother from having an immune reaction to Rh-positive blood in her baby’s body, she was given RhoGAM. This medicine’s sole purpose was to prevent the mother’s body from producing antigens that will attack the blood of any future babies she will conceive the way her body would fight off any harmful virus or bacteria.

When the woman conceived and gave birth to her second child in 1984, her baby also had Rh-positive blood. The woman repeatedly asked her second obstetrician to give her a shor of Rho-GAM so that she will not have a reaction to the Rh-positive blood of any child she conceives in the future. The second obstetrician refused and failed to give her a RhoGAM injection. He told her that she didn’t need it.

In 1987, the woman conceived her third child. When she gave birth to her third child, she had a blood disease and pulmonary problems. These health problems of her third child were directly the result of the second obstetrician’s failure to inject her with RhoGAM after she gave birth to her second child. When the second obstetrician refused and failed to inject her with RhoGAM, her body developed antibodies against Rh-positive blood. Her body produced antigens that attacked her third baby thinking that her third baby’s blood was a harmful pathogen.
The woman filed a complaint in behalf of her third child for medical malpractice against the second obstetrician and the hospital whose staff failed and refused to inject her with RhoGAM. The woman and her husband contend that his negligence and medical malpractice directly caused the injury to their third baby.

The woman also included as causes of action in her complaint, for her own claim for damages for the personal emotional distress she suffered. She also included a cause of action for her husband’s emotional distress.

The obstetrician and the hospital both filed a motion for summary judgment asking that the complaint in its entirety be dismissed. A Queens Personal Injury Lawyer said they claim that since the alleged injury to the mother was sustained by her in 1984, she cannot claim for it in 1987 as it is barred by lapse of time. Also, they claim that they cannot be made liable for injury to the mother which resulted in injury to the fetus when the injury to the mother was allegedly committed years before the fetus was even conceived.

The court granted the motion for summary judgment which is now the subject matter of this appeal. A Suffolk County Personal Injury Lawyer said the only question presented before the Supreme Court is whether or not the complaint was filed beyond the time limit prescribed by law.

The Supreme Court sustained the order of the trial court granting the motion for summary judgment and dismissing the complaint.
The Court held that the woman can claim an exception to the statute of limitations if there was any fraud, misrepresentation of deception on the part of the obstetrician and the hospital to induce her to delay the filing of her claim. Since there is no such claim of fraud, the complaint does not fall under this exception; it is time-barred.
The Court also noted that another exception to the statute of limitations is when a patient discovers a doctor left behind a foreign object in her body after surgery. The patient is given one year from the date of discovery of the foreign object to file a complaint for damages. Since this is not the case here, this exception does not apply either.
The Court also held that the negligent act and medical malpractice consists of an injury to the mother in 1984 which resulted in injury to her fetus which was conceived only in 1987. Under the law, there can be no recovery for injuries sustained by the mother which affected a fetus which was not yet in utero at the time of the injury to the mother.
A New York Medical Malpractice Lawyer needs to prove that a doctor failed in his duty to treat his patient with care. A New York City Medical Malpractice Attorney also needs to prove that in treating the patient, the doctor deviated from accepted medical practice. Most important of all, a NYC Medical Malpractice lawyer has to see to it that the complaint is timely filed. Call Stephen Bilkis and Associates today. Speak to any of their NY Medical Malpractice attorneys. Do not put off your right to claim compensation for your legal injuries. At Stephen Bilkis and Associates, their New York City Medical Malpractice lawyers are willing to assist you.

April 17, 2012

Court Discusses Informed Consent Regarding Birth Injury

A fourteen-year-old plaintiff, by and with her father, sues the hospital and physician who treated her at birth and for a period thereafter for injuries sustained in the first weeks of her life. Only two pounds, eight ounces at birth, she is today a healthy teenager with an above-average I.Q.; however, she is totally blind (blindness) as a result of retrolental fibroplasia (RLF) disease, which plaintiffs argue was caused by the administration of excessive amounts of oxygen over her first thirteen days (birth injury or birth injury accident). The complaint alleges medical malpractice and lack of informed consent.

Up until the mid-1950's it was accepted medical practice to administer quite liberal doses of oxygen to premature infants to prevent death or brain damage. Research of this period ultimately showed, however, that prolonged and high concentrations of oxygen in an incubator (over 50%) led to the certain development of RLF. Thus, by the time of plaintiff's birth, in May of 1970, it was well-established that oxygen should only be applied to counteract respiratory problems and cyanosis in premature infants, as exhibited by plaintiff, and then only at relatively low percentage-volumes and for only brief periods.

A New York Injury Lawyer said at trial, evidence showed that plaintiff was subjected to concentrations of oxygen between 31-40% over a thirteen-day period. This proof permitted a finding, based also upon the opinion of plaintiff's expert, that this continuous use of oxygen caused her RLF. However, there was also an abundance of evidence that without any oxygen, plaintiff would have died or suffered brain damage.

Was the oxygen given to plaintiff administered improperly so as to make out a claim of medical malpractice?

The jury found no departure from accepted medical or hospital practice as it existed by either the hospital or the attending pediatrician.

The court now addresses the issue on lack of informed consent.

The testimony presented showed that the attending physician never informed plaintiff's parents about the risks of oxygen use nor, specifically, the possibility that blindness might result. Accordingly, neither was there any discussion of the range of percentage-volume and duration of oxygen therapy possible. A Queens Personal Injury Lawyer said given the complexity of factors and outcomes in treating a grossly underweight and premature infant, the issue of lack of informed consent was clearly not reducible to whether, if so informed, the parents would have been forced to choose between death and blindness.

Were the infant's parents adequately and reasonably informed and based on that, did they give their consent to the procedure and treatment undertaken?

Whether an action for lack of informed consent is viewed as a malpractice action based on negligence or as a malpractice action based on common law principles of assault and battery, it is nevertheless a tort action and requires proof of a causation relation between the defendant's disputed conduct and the resulting injury to plaintiff. A Staten Island Personal Injury Lawyer said an an action raising lack of informed consent there are two separate causation elements: the "but for" and the proximate cause elements.

Upon finding that a doctor has failed to adequately inform the patient of the attendant risks of and alternatives to a medical procedure, the question now is whether the treatment would not have occurred "but for" the doctor's failure to inform properly. This "but for" relation is established when a reasonably prudent person in the patient's position would not, if fully informed, have consented to the treatment.

Once the "but for" relation is established, and it is concluded that the treatment would not have taken place, a second inquiry is then directed at whether the injury in fact resulted from the disputed treatment, for there can be no recovery without actual damages to the plaintiff. This is the proximate cause element.

Whether the treatment in question had the effect of producing plaintiff's injury and whether reasonable men would regard the treatment as the cause of the injury, it must be proven that no fully informed reasonable person would consent to the treatment and that the plaintiff in fact suffered an injury which medically was caused by the treatment.

Unquestionably, it is impossible for a lack of informed consent to cause a physical injury. The parent's lack of knowledge about the risk of the treatment did not cause that risk to materialize. Rather, it is the administration of an unconsented treatment which may cause injury. Unfortunately, a literal interpretation of the instruction would require the impossible: that the lack of informed consent must proximately cause the blindness.

Given the complexity of the issue of lack of informed consent and the court’s inability to conclude that the ultimate verdict by the jury of the lower court was based on a correct application of the relevant legal principles, the court reverses and remands the case for a new trial, but on such cause of action alone.

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April 14, 2012

Plaintiff Brings Malpractice Action for Poor Treatment in Rehab Facility

The plaintiffs in the case are Diane Jakubowski, who is the proposed executrix of the estate of Jan Jakubowski, and Diane Jakubowski individually. The defendants in the case are Huntington Hospital, Nick Fitterman M.D., Cristina Pruzan, M.D., Hilaire Farm Skilled Living and Rehabilitation Center, and Huntington Village Rehabilitation and Nursing.

Plaintiff’s Complaint

A New York Injury Lawyer said the initial complaint made by the plaintiff was filed on December 3, 2010. The complaint asserts a cause of action for medical malpractice towards each of the defendants. This cause of action asserts that beginning on or around June 3rd, and continuing through the course of treatment Jan Jakubowski was a patient of Nick Fitterman M.D. and Cristina Pruzan and they both failed to care for him properly, which caused him to sustain severe and serious injuries and further complications. A New York Injury Lawyer said at this time Jan Jakubowski was also a patient of Hilairic Farm Skilled Living and Rehabilitation and Huntington Village Rehabilitation. A second cause of action in the complaint is for lack of informed consent towards each of the defendants. The third cause of action in the complaint is premised on the negligent hiring and supervision of Huntington Hospital, Huntington Village Rehabilitation, and Hilaire Farm Skilled Living and Rehabilitation Center. The fourth cause of action is for loss of services on behalf of Diane Jakubowski, spouse of the deceased, Jan Jakubowski.

Defendants Argument

The defendants in the case are seeking dismissal of the complaint. The basis for the dismissal is that Diane Jakubowski, the executrix of the estate, lacked the ability to commence the action on December 3, 2010 as she was not yet the appointed executrix. Dismissal of the complaint is also sought on the basis that the statute of limitations had expired when they were served the amended summons and complaint that reflected her capacity as executrix of the estate.

Court Orders

Based on the evidence that has been supplied in this case, the Court makes the following orders.

The first order is that the motion by the defendants Hilaire Farm Skilled Living and Rehabilitation Center and Huntington Village Rehabilitation and Nursing for the dismissal of the complaint made by the plaintiff is granted. A Brooklyn Personal Injury Lawyer said the basis for this order is the fact that the plaintiff did not have the capacity to sue when the action was started. The complaint that was made against the defendants is dismissed without prejudice. Additionally, the causes of action based on medical malpractice and negligence is denied.

The second order is that the motion made by the plaintiff for an order that allows the plaintiff to amend the caption of this particular action is also denied. An NYC Personal Injury Lawyer the plaintiff is granted the right to recommence this action within six months of the date that it has been dismissed and if the plaintiff is advised, she may commence a new action by purchasing a new Index Number and filing a summons and complaint.

The court further orders that the motion made by the defendants Huntington Hospital, Cristina Pruzan, MIX, and Nick Fitterman, M.D. for an order that dismisses the action for medical malpractice is denied. However, the action that dismisses the action based on the plaintiff not having the capacity to sue when the action began is granted.

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April 12, 2012

Plaintiff Sues for Medical Malpractice due to Tragic Birth Injury

A woman during the course of her pregnancy informed her two doctors that there was a blood incompatibility between her and her husband. Because of this incompatibility, their first child developed a condition known as thrombocytopenia at or following his birth. The woman was afraid that the baby she was carrying will develop the same disease as the first child, so she informed her doctors so take preparations can be made. A New York Injury Lawyer said that having been forewarned, the doctors still failed to take proper pre-birth precautions with regard to the second child. She is alleging that the child died because of thrombocytopenia or respiratory distress syndrome or hylem membrane disease caused by the negligence of the defendants.

She is filing an action for the medical malpractice, negligence, breach of contract and fraud arising from the care and treatment by the defendants during the course of her pregnancy. The first cause of action is based on the wrongful death of the child due to the defendants’ medical malpractice.

The second cause of action seeks recovery for the emotional and psychological pain and suffering and mental and physical injury she incurred. The third cause of action seeks also recovery based on the same grounds as the second with respect to the husband. The fourth cause of action seeks damages arising from the breach of contract. The fifth cause of action seeks recovery for the medical and surgical expenses, also for emotional, psychological and physical pain and suffering based on the gross negligence of the defendants in failing to take proper precaution even after being informed that the second child would likely develop the same disease as the first child. The final cause of action is based on the fraudulent representations of the defendants, that they were familiar with the records of the plaintiff’s concerning the birth of her first child and that they were prepared to handle any problems resulting to the blood incompatibility of the her and her husband, particularly the thrombocytopenia, which would likely to develop in her second child also.

The defendants move to dismiss on the grounds that the second, third and fourth causes of action for failed to state a claim upon which relief may be granted and moved for summary judgment dismissing the fifth and sixth cause of action. A Brooklyn Personal Injury Lawyer said that the Special Term dismissed the second, third and fourth causes of action, granted summary judgment in favor of the defendants on the six cause of action and a portion of the fifth cause of action, seeking recovery for emotional, psychological and physical pain and suffering.

The court ruled in jurisprudence, that recovery for emotional harm suffered by one person as a result of injuries sustained by another should be eliminated. The court’s basis for this is the “bystander rule.” This rule prevents the recovery for emotional harm resulting from physical injuries sustained by another.

However, in this case, there is a breach of duty to the mother as well as to the child. The bystander rule is not applicable because it involves a breach of duty only to the victim. The mother was more than a mere bystander, having a unique physiological relationship with the baby.

In order to recover for emotional harm plaintiff must show in addition to a breach of duty owed to her, that she was the person directly injured by that breach. A Long Island Personal Injury Lawyer said the emotional harm and mental suffering is caused by the loss of the child, and not directly arose from the defendants’ breach of their duty.

The mother does not seek to recover damages from the psychic and emotional shock she sustained from witnessing injuries to her child resulting from the doctor’s breach of duty owed to the child, but she claims damages based on the doctor’s breach of duty owed to her and on this she may recover. The defendants’ were informed of the blood incompatibility of the plaintiff and that the first child developed thrombocytopenia still failed to take the proper measures in caring for the mother during her pregnancy and prevent the development of the disease which caused the death of the newborn child.

The plaintiffs desired to have a second child. If the defendant only fulfilled their duties owed to the plaintiff, they would have had a healthy child who survived the blood condition, as had her firstborn child. After warning them of the blood incompatibility, they should have taken the proper precaution and measures to ensure the baby’s health and safety. Because of the defendants’ medical malpractice, the baby developed thrombocytopenia, which caused his death. Because of this breach of duty, the parents should be entitled to damages.

One cannot imagine the feeling of parents when they lose their child. Even more if the death was a result of another’s negligence. Stephen Bilkis and Associates can recommend NY Medical malpractice lawyers that can help you fight for your right and see to it that this will not happen to other parents as well. New York Birth Injury lawyers can give you advice on what do to in situations like these, NY Birth injury accident lawyers will make sure that damages will be recovered for those victims of other people’s negligence.

April 10, 2012

Court Decides What Constitues Harrassment

A New York Injury Lawyer said the plaintiff in the case is the People of the State of New York. The defendant in the case is Nicolas Pierre Louis.

Case History

This case begins on or around February 22, 2010. A New York Injury Lawyer said the deposition from the plaintiff states that while employed as an Assistant District Attorney in the Nassau County District Attorney’s office, he began receiving voice mails from the defendant, Nicolas Pierre-Louis. The voice mails that were left on his phone were derogatory in nature and included statements such as “I’m coming at you with fury,” and “Bitch, you will lose your fucking job,” as well as many other profanities and offensive statements.

The plaintiff states that the voicemails that he received were alarming and annoying. He also states that he feared for his safety as well as the safety of another Assistant District Attorney that worked in the office.

Defendant Argument

The defendant argues that although his statements were vulgar in nature and offensive, they are protected through the right of free speech and therefore should not form the basis for a criminal charge against him.

Plaintiff Argument

The plaintiff in the case offers the voicemails and transcripts of what was left on his voicemail as evidence of harassment. He states that he was fearful by the anger and the comments that were made by the defendant and that this constitutes the basis for harassment charges.

Case Discussion

A Bronx Personal Injury Lawyer said the issue of freedom of speech is one that has been contemplated in courts many times over the years. The issue arises when statements are made that others may find harmful and insulting. In the case of Chaplinsky versus New Hampshire described the use of “fighting words” or words that by their very expression tend to incite an immediate breech of peace. In this case the prosecution of the defendant was permitted on the basis of the speech that was given. Additionally, there have been cases that allowed the prosecution of the defendant where words sought to produce lawless actions or were true threats. A true threat is a statement where the speaker intends to communicate the intent of harm to an individual or a group of individuals.

On the other side of the issue, courts have been quick to strike down cases where the laws proscribe that the speech is entitled to First Amendment protection. One such case is that of Simon versus Schuster, which the court stated that “Regulations that permit the government to discriminate on the basis of content of the message cannot be tolerated under the First Amendment.”

Case Results

In this particular case, the vagueness and overbreadth of the statements made by the defendant are apparent. Even the statement of “I am coming at you with fury,” is not deemed to be threatening to a level that constitutes over riding the freedom of speech amendment. A Westchester County Personal Injury Lawyer said that lthough the statements that were left on the plaintiff’s voice mail are disturbing, vulgar, and filled with profanities, the statements are not felt to constitute “fighting words.”

For these reasons the court finds in favor of the defendant. According to the principles of the First Amendment, the Court dismisses the case.

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April 9, 2012

Court Hears Medical Malpractice Claim Based on Birth Injury

Petitioner was born prematurely at about 31-weeks gestation at defendant hospital. He is alleging that because of defendant Hospital’s failure to properly diagnose the amniotic infection of his mother and failure to properly monitor and intervene with the labor and delivery process, he incurred development delay, cerebral palsy, and spastic diplegia. Petitioner filed to claim damages but defendant Hospital is argues that the action has already expired, and petitioner cannot claim anymore.

A New York Injury Lawyer said that according to General Municipal Law, the Legislature enacted a protocol for suing a public corporation a notice of claim should be first filed. Under the same law, it is provided that it is the discretion of the court to extend the time, which a petitioner can serve a notice of claim. However, the extension should not exceed the time limit for the commencement of the action against public corporation. The law requires that the notice should be served 90 days after the claim arises. The extension of time should consider whether it involves an infant, if the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, when the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and lastly, if the delay would substantially prejudice the municipality in maintaining its defense on the merits. A Manhattan personal injury lawyer said tha based on jurisprudence, the court shall consider other relevant facts and circumstances such as whether the claimant was an infant, mentally, or physically incapacitated, or died before the time limited for service of the notice of claim. If the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative. Also, whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted, and lastly, whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

Medical records show that petitioner was prematurely born. He was approximately 31-weeks gestation, low birth weight and in need of immediate oxygen resuscitation. A Long Island Personal Injury Lawyer said he was on oxygen for five days after his birth and was then transferred to the Neonatal Intensive Care Unit or NICU and for a month, he remained hospitalized. ased on the medical records, there is no showing of substantial prejudice and there since there is no injury, the lack of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim.

However, the claim of the mother is dismissed on the grounds that the infancy toll is purely personal to the infant petitioner. This does not extend to the mother, thus there is no cause of action. The mother then filed leave to amend a bill of particulars. According to jurisprudence, amendment of a bill of particulars is ordinarily freely given in the absence of prejudice or surprise resulting directly from the delay. The court granted this leave to amend bill of particulars, provided that they would include additional allegations in support of the theory of the medical malpractice set forth in the prior proceedings.

Defendant hospital submits the affirmation of one doctor who is board certified in obstetrics and gynecology. According to the doctor, the defendant hospital followed good and accepted standards of medical practice with respect to the treatment of the infant plaintiff and that defendant hospital did not contribute to or directly caused the birth injury.

To challenge this, plaintiff also submitted affirmation of doctors, who is board certified in pediatric neurology and another is board certified in obstetrics and gynecology. Both of the doctors assert that defendant Hospital failed to observe and departed from good and accepted medical practice which lead to contribute to the infant’s brain injury, the consequences of which include cerebral palsy. These affirmations made by the doctors raise questions of fact involving the medical malpractice and the proximate cause as to whether the infant plaintiff suffered injury due to the treatment he received from defendant Hospital.

The ruling of the court, based on this was to grant the amendment of bill of particulars and plaintiffs’ notice of claim to be timely served.

There are good and accepted standards in medical practice. Any deviations for this standard can cause damage to our persons. If your child has been the victim of medical malpractice contact Stephen Bilkis and Associates. They can help you protect your rights and persons. NY Birth injury accident lawyers services are also available. Because there is a good and accepted standard for medicine practice, we do not deserve anything below the standards.

April 6, 2012

Court Hears Medical Malpractice Case

http://http://www.1800nynylaw.com/The plaintiffs in the case are Roseann Caracciolo individually and Roseann Caracciolo as the proposed administrator of the assets of her late husband, Pasquale. The defendants in the case are Ralph Peluso, M.D., Mladen Solar, M.D., The Staten Island University Hospital, the Brooklyn Family Medical Associates, Joseph McGinn, M.D., and Donald McCord, M.D.

The Case

Through the motion that was filed on the 7th of February, 2007, the defendants Donald McCord and Mladen Solar jointly move to discharge the grievance made by the plaintiff based on the fact that the plaintiff lacks the means to sue. By a cross motion that was filed on the 15th of February, 2007, defendants Brooklyn Family Medical Associates, Ralph Peluso, and the Staten Island University Hospital for dismissal of the case based on the same reasons. Defendant Joseph McGinn moves for the same release for the same reasons. According to a New York Injury Lawyer, the plaintiff is against the motions as well as the cross motions of the defendants/movants.

By the cross motion filed by the plaintiff on the 8th of March, 2007, the plaintiff moves to alternate the parties and to revise the caption.

Case Facts

The undisputed facts of the case are that on the 26th of December, 2004, Pasquale Caracciolo died. On the 13th of December, 2006, his spouse, Roseann initiated the action against the defendants through filing a complaint and summons with the Clerks office of Kings County. In the summons, she was named as the proposed administrator of the estate and herself and her husband as the individual plaintiffs. There are 3 causes of action in the complaint as well as 56 allegations.

The cause of action listed first is a medical malpractice suit filed against all of the defendants in regard to the medical treatment and care of the deceased. The 2nd cause of action avers the liability of the defendants in the untimely death of Pasquale Caracciolo. The 3rd cause of action avers the loss of services to the plaintiff as a result of her husband’s untimely death.

In January of the year 2007, the defendants responded to the complaint joined in issue with each other. On the 20th of February 2007, the plaintiff was appointed as the administrator of the assets of her late husband through the Surrogate’s Court of the State of New York. When the action was commenced by the plaintiff she had not been selected as the administrator of the estate.

Defendants Argument

According to a Brooklyn Personal Injury Lawyer, each of the defendants/movants motions for dismissal is supported by a copy of the complaint and summons, the answer of the complaint, and an affirmation of counsel. Defendants Donald McCord and Mladen Solar also state in opposition to the complaint stating it took place after the deadline set for this type of case.

Case Discussion and Verdict

The defendants wish to accelerate the judgment dismissing the case as the plaintiff lacked the power to sue at the time the complaint was commenced.

As for the argument that the complaint is untimely, in this case the plaintiff had two years from the time of death to file the wrongful death suit. Her complaint was submitted two weeks before the deadline.

In this case the Court finds in favor of the defendants and the case is dismissed. However, a Bronx Personal Injury Lawyer said the dismissal of the three causes of action is without prejudice to Roseann Caracciolo and gives her the right to recommence the action as the administrator of the estate.

Stephen Bilkis & Associates is a law firm with offices conveniently located throughout the city of New York. Our team of lawyers can help you with any type of legal situation that you may find yourself in. If you are in need of legal advice, you may contact one of our offices to set up a free consultation.


April 1, 2012

Drug Given During Pregnancy Results in Severe Birth Defects

A woman, her husband and their child sued a global drug manufacturer, a physician and a hospital for medical malpractice. In the first action, the complainants allege six causes of action seeking a total of $30,000,000.00 in damages, claiming that during her pregnancy, the woman ingested a drug manufactured and distributed by the pharmaceutical company. The drug was administered to her by the accused physician and resulted to her child’s delivery by Caesarean section at the accused hospital. The child was born without limbs. The complainants allege the drug manufacturer with negligent manufacture, testing, advertising, drug safety representation and improper usage instructions. They further allege that the manufacturer knew or should have known that the drug is unsafe and unfit for use due to its dangerous side effects, contraindications and insufficient testing. In addition, the complainants allege breach of warranties, violation of statutory duties and strict tort liability. The claims against the physician and the hospital are based on professional care negligence, diagnosis, treatment, surgery and after care rendered to the child.

Parenthetically, A New York Injury Lawyer said that the drug is a progesterone hormone medicine intended to prevent miscarriage. The record before the court shows that the woman had three pregnancies. Her first pregnancy was terminated in the birth of a stillborn child at the accused hospital, another was terminated by miscarriage and her third pregnancy gave birth to the complainant child. The woman received injections of the said drug weekly for five months and monthly thereafter until her child’s birth. The injections were administered by the accused physician.

The second action was commenced by the woman and her husband against the same accused parties. The complaint in the second action alleges ten causes of action against the accused parties, nine of which are the subject of the accused parties’ motions to dismiss. A Long Island Personal Injury Lawyer he first cause of action is negligence and the allegations are similar to the allegations of negligence against the accused parties in the first action. The second cause of action by the husband against the drug manufacturer asserts the same allegations of injuries as his wife, except for the phrase fear for her own well- being and health, which appears in the first cause. The husband claims damages as well for medical expenses of his daughter, his wife and himself. The third cause of action on behalf of both complainants against the drug manufacturer and the physician is based on breach of warranties in that it is alleged that the accused parties represented and warranted that the drug was safe and fit for use as a therapeutic drug, of merchantable quality, without side effects that may cause danger to life and the limb. It is claimed that the representations and warranties were false.

The fourth and fifth causes of action by the woman and her husband are for violation of statutory duties and strict tort liability, respectively, against the drug manufacturer and the physician. A Queens Personal Injury Lawyer said the sixth cause of action by the woman is against the physician and the hospital for professional negligence in the care, diagnosis, treatment, surgery, discharge and aftercare of the woman, including the use of the drug by the physician and the hospital's failure to discover and treat the woman’s condition caused by the physician.

The seventh cause of action by the husband against the physician and the hospital is for the professional negligence alleged in the sixth cause, the birth of his daughter without limbs, resulting in the same injuries and damages also alleged in the second cause. The eighth and ninth causes of action by the couple are against all the accused. Each complainant is claiming derivatively for the loss of services of the other and seeking $1,000,000.00. In the ninth cause, the husband also claims loss for medical expenses for his wife. The tenth cause of action by the couple is against the physician and the hospital for failure to inform the woman of the dangers in medical treatment and injections of the drug and failure to receive informed consent.
Essentially, the second action of the complainants are seeking damages for claimed injuries to their nervous systems and emotional damage, personality changes and extreme mental anguish occasioned by the birth of their daughter without limbs and with other serious and permanent injuries and congenital defects due to the woman’s ingestion of the drug during her pregnancy.

The accused parties argue that no such claims may be asserted and New York has repeatedly denied recovery for mental and emotional injuries suffered by another regardless of the relationship. Accordingly, the drug manufacturer seeks the dismissal of the complainant’s first, second, third, fourth, fifth, eighth and ninth causes of action of the second action. The physician, by cross-motion, seeks the dismissal of the third, fourth, fifth, sixth, seventh, eighth and ninth causes of action. The accused parties move on the grounds of legal insufficiency and that the causes of action do not state a cause of action as a matter of law.

On a motion to dismiss, the court must assume the truth of the allegations contained in the causes of action under attack. The pleader is entitled to every favorable inference that might be drawn from the pleading. Thus, the negligence, breach of warranties and other violations of duty owed to the complainants are all assumed, as well as their claims of damage resulting therefrom.

Each of the parents sought recovery for the pain, suffering and mental anguish incident to the delivery of the child and also that caused by the birth of their child in an impaired condition. The Special Term court dismissed the individual claims of the parents for mental anguish resulting from the birth of a child in an impaired condition.

Turning to the instant case, where the harm is more direct, the court is persuaded that the parents have pleaded valid causes of action, which are hereby sustained. As was to be expected, the court has now been presented with a pleading which takes us one giant step further along the path towards judicial recognition of the need to permit recovery in these tragic cases. A questionable principle, denying recovery for emotional injuries to a mother-bystander to an accident involving her child, can have no reasonable application to the facts as presented.

The woman and her husband are not bystanders on the situation. As alleged, it was as the direct result of the numerous injections of the drug administered by the physician to the mother during her pregnancy that made her gave birth to a deformed child. Such condition of the child is direct harm to the complainants caused by the negligence of and breach of duty of the accused parties owed to the woman, her husband and their child. The harm was not birth injury or as a result of birth but while the fetus was developing in the mother's womb. Furthermore, the woman has alleged fear for her own well-being and health as a result of her ingestion of the drug. If the injections of the drug were the direct and proximate cause of the birth injury of the child, the court will permit both the woman and her husband to prove whatever other injuries it may have caused or produced, as a natural consequence of the wrongful act. The accused parties’ motions are denied in all respects.

Drugs and medicines are formulated to protect and cure people from sickness when taken accordingly, otherwise speak your lawsuit options with an experienced attorney. When a medical professional commits mistake in administering drugs especially during pregnancy of a patient and fail to acknowledge what harm it may cause, feel free to contact the office of Stephen Bilkis and Associates and speak with our legal team for guidance.

March 30, 2012

Family Brings Wrongful Death Suit Against Hospital

A man fell in his residential hotel apartment in New York City. A neighbor heard him yelling coming from the apartment and called an ambulance. According to the Ambulance Call Report prepared by the EMS workers, he was found lying in apt, full of feces and was having difficulty breathing. It was also noted in the report that he had an elevated heart rate of 132 beats per minute while in the care of the EMS workers. A New York Injury Lawyer said the Ambulance Call Report also contained the man’s address, date of birth, social security number and a telephone number of a female close friend which named her as his next of kin.

Records revealed that the man was taken by the ambulance to the emergency room of a hospital and the Ambulance Call Report was received by the staff member of the hospital. An Emergency Department Patient Registration Form was prepared after the man’s arrival at the hospital and contained the same pedigree information as the Ambulance Call Report. A triage assessment was performed and the records indicate that the man was still experiencing shortness of breath and was noted to have an elevated heart rate. It appears that no treatment was administered in triage and he was given acute priority and sent to an acute area of the emergency department.

The man was assessed by an attending physician in the emergency room and was found to be in respiratory distress with swelling of the extremities. The emergency room attending physician testified that his preliminary diagnosis was congestive heart failure. He also entertained the possibility of pneumonia and heart ischemia and considered the man to be a critically ill patient. He further testified that he put a non-re-breather face mask on the man with the highest concentration of oxygen and such was documented in the emergency room records. A Westchester County Personal Injury Lawyer said that according to the emergency room attending physician, he administered a medicine to reduce the man’s heart rate and administer a dose of another medicine to get rid of extra body fluid. He further testified that he would have probably given the man an antibiotic in case there was pneumonia. The emergency room records did not indicate that the man was provided with any of the medication treatments discussed by the attending physician at his deposition. Additionally, the attending physician testified that nurses of the hospital assisted in the emergency room treatment provided to the man, however, it does not appear that any nursing notes were generated in connection with such treatment.

The man eventually stopped breathing and became unresponsive four hours after his arrival. The attending physician testified that he had a vague recollection of placing intubation on the man and remembered performing Advanced Cardiac Life Support. These treatments were not noted in the medical records. The attending physician said that he made at least two attempts to contact the next of kin listed in the medical chart but was unable to reach her and there was no recording or ability to leave a message. It appears that no written record was created with respect to the attempt to contact the next of kin. Since he was unable to reach the next of kin, the attending physician informed other hospital personnel and they took over the responsibility of contacting the man’s next of kin. He could not remember specifically who he spoke with regarding the matter, but believes it was the charge nurse and a nursing administrator.

A Suffolk County Personal Injury Lawyer said that the hospital's rules and regulations relating to notifying a family about the death of a family member specifically sets forth that it is initially a physician's responsibility to notify the next of kin of a patient's death. If the physician is unable to contact the next of kin, the physician is to notify the Clinical Nurse Manager/Nursing Administrator, who is required to make further efforts to contact the next of kin by making frequent phone calls, sending a telegram, and making a request of the City Police Department to visit potential residences for next of kin. If the Clinical Nurse Manager/Nursing Administrator is not successful with these aforementioned methods, and as a consequence, fails to locate a patient's next of kin, they are responsible for contacting the City Police Missing Person's Unit. After the City Missing Person's Unit is contacted, a request for police investigation form must be prepared by the hospital in triplicate. One copy of that form remains with the body, one copy is to be kept at the hospital, and the original is to be forwarded to the Receiving City Mortuary with the body, the latter copy to be returned to the City Police Department when the body is released from the mortuary to a legally designated institution.

According to an affidavit submitted by the complainant to the City Police Department in opposition to the hospital’s motion, the City Police Department was never contacted by the hospital to conduct any investigation into the existence and whereabouts of the man's family following his death. Furthermore, although the rules and regulations require the Nursing Administrator, at the appropriate care center, to maintain a log detailing the attempts made to contact a patient's next of kin, there are no records indicating that any efforts were made by anyone.

A Certificate of Death form was completed by another emergency room physician and the man’s body was then brought to the hospital morgue. A Staten Island Personal Injury Lawyer said that since the hospital staff was unable to locate next of kin, he was characterized as an unclaimed body. According to the testimony of a hospital employee, once the morgue is in possession of an unclaimed body, it becomes the responsibility of the morgue staff to complete the personal particulars portion of the Certificate of Death. Typically this is completed by a funeral director. Notwithstanding the fact that the hospital records relating to the man contained his pedigree information, his death certificate personal particulars’ were all unknown. The Certificate of Death also indicated that the informant’s name was unknown and the man was to be buried in the City Cemetery.

In addition to the hospital rules, when a body remains unclaimed for 72 hours in the hospital morgue, the Morgue Supervisor is required to notify the Administrator of Pathology. The Administrator of Pathology is then required to communicate with the Care Center Director and complete a decedent follow-up form and forward it to the Care Center Director. Thereafter, under the direction of the Care Center Director, a decision is to be made with respect to the disposition of the body. If further efforts are needed to locate next of kin, the body is to be retained in the morgue. The hospital's rules and regulations further state that if after 42 hours it is definitely established that there is no next of kin and every source has been exhausted, the Superintendent's Permission form is completed by the Care Center Director, authorizing a Hospital Post Mortem Examination after which the body is transferred to the City Mortuary. In the instant action it appears that the hospital did not abide by its own rules and regulations.

The Department of Health issued a burial permit in November of 2001 and the man’s body was transferred to the City Morgue. While at the City Morgue, students of County Community College's Mortuary Science Department were permitted to practice embalming on the man’s body. It does not appear that any efforts were made at any time by the City Morgue to verify that the body was unclaimed. On December 2001, the body was transferred from the City Morgue to the City Cemetery operated by the City Department of Corrections. The man’s body was then buried in a large burial plot by the inmates with approximately 150 other unclaimed bodies. Admittedly, the Department of Corrections would not have made any efforts to determine or contact the next of kin of an unclaimed body.

On February 2002, the man’s niece, a State Police Trooper, received a telephone message from the manager of the residential hotel that her that her uncle had passed away. It appears that the staff of the hotel began to grow concerned when they had not seen the man for quite some time, and began making inquiries at the hospital. Upon learning of the man’s passing, a hotel staff member was able to contact the niece, calling a telephone number contained in the hotel's records. After contacting the hotel, the man’s niece and her father were informed by a hotel staff that the man was taken to the hospital on October 28, 2001, and passed away on that date. The female friend advised them that she was never called by the hospital to inform her that the man had passed away.

After learning that the man had passed away, his brother made inquiries with the hospital and the City Morgue to find out where his brother had been buried. According to the brother’s deposition testimony during his initial visit to the hospital, he was told by an employee that she could not provide him with details about his brother's death or advise him as to where the body was located at that time, because the pertinent hospital records had been signed out by another employee who was on vacation at that time. The brother learned that the hospital employee intentionally lied to him in order to conceal the hospital’s wrongdoing. He eventually learned that his brother had been buried and he stated that he was encountering great difficulty when he initially attempted to locate his brother’s remains, and it was not until the media began assisting him, in the search, did he learn the exact whereabouts of the body. The body was exhumed and identified and the man’s family was able to have a wake and a funeral for him.

The brother served a notice of claim upon the hospital and its staff. The complaint asserts causes of actions against all the accused parties for medical malpractice, loss of sepulcher, fraudulent concealment and punitive damages. The City Health and Hospitals Corporation, the City Police Department, the City Department of Corrections and the City Department of Health respectively move to dismiss the action as asserted against them, and by separate motion, the hospital moves to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim. Additionally, the man’s brother moves for leave to amend the complaint.

According to the brother, dismissal of his claim for punitive damages relating to the medical malpractice cause of action is not warranted. As the evidence demonstrates that the attending physician was the physician in charge of providing medical care to emergency room patients, the Court finds that issues of fact exist as to whether such authority amounted to general managerial authority in relation to the nature and operation of the employer's business. The failure on the part of the hospital to simply transcribe the man’s personal particulars on his death certificate not only stripped him of his identity, but facilitated the unfortunate chain of events that were yet to unfold.

The Court ordered that the motion by the City Health and Hospitals Corporation to dismiss the action as asserted against it is denied to the extent that it seeks dismissal of the sepulcher cause of action, and granted in all other respects. The Court further ordered that the motion by the hospital to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim is granted only with respect to the fraudulent concealment claim asserted against it in the complaint, and denied in all other respects. The Court also ordered that the motion by the City Police Department, City Department of Corrections and City Department of Health to dismiss the action as asserted against them is granted in its entirety. The Court further ordered that the motion by the brother for leave to amend the complaint is granted only to the extent that he may assert a cause of action for gross negligence against the hospital in connection with the alleged acts of medical malpractice, and seek punitive damages in connection with that cause of action.

Negligence of one person results in the injury of the other. If you or a member of your family becomes a victim of malpractice in the field of medicine and sustained injuries in the process, you should seek the advice of an attorney to explore your legal options. Stephen Bilkis and Associates will provide you with legal counsel, and a free consultation, so call us today for an appointment.

March 30, 2012

Woman Sues for Medical Malpractice for Ongoing Health Issues

The complaint of this action sets forth causes of action sounding in medical malpractice and lack of informed consent wherein the woman alleges that from January 16, 2003 through May 12, 2004, the accused hospital and her attending gynecologist undertook to treat her for certain gynecological complaints and during that care and treatment. She also alleges that her attending gynecologist departed from good and accepted standards of medical care and failed to inform her of the reasonably foreseeable risks, benefits and alternatives to the treatment proposed and rendered. She further claims that her attending gynecologist failed to obtain an informed consent, causing her to sustain personal injury including sterility, total abdominal hysterectomy and removal of both ovaries and both fallopian tubes.

The attending gynecologist and the hospital move for summary judgment to dismiss the complaint on the basis that the surgery performed was warranted and performed properly and that proper informed consent was given to the woman.

To grant summary judgment it must clearly appear that no material and issue capable of trial of fact is presented. The gynecologist and the hospital have the initial burden of proving entitlement to summary judgment. Failure to make such requires denial of the motion, regardless of the sufficiency of the opposing papers. A New York Injury Lawyer said that once such proof has been offered, the burden then shifts to the woman. In order to defeat the motion for summary judgment, the woman must submit evidence in admissible form and must show facts sufficient to require a trial of any issue of fact. The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established.

In support of the motion, the attending gynecologist and the hospital have submitted an attorney's affirmation, copies of the pleadings and answer, bill of particulars and supplemental bill of particulars, IRS records, medical records of a university hospital dated May 21, 2001, medical records of a memorial hospital dated March 4, 2000, and a physician’s copies of transcripts of the examinations of the woman, and testimonies of the woman’s friend, and the affirmation of the attending gynecologist’s expert.

A Long Island Personal Injury Probate Lawyer said that in opposing the motion, the woman has submitted an attorney's affirmation, her various medical and operative records, a copy of the transcript of the examination of her attending gynecologist and the affirmation of the woman’s medical expert.
The woman testified that she was due to deliver on July 17, 1975 and she has never been married. She has a history of interstitial cystitis, polycystic kidney disease and endometriosis. She fifteen years old when she was diagnose with endometriosis by a physician who performed a biopsy procedure from the university hospital and was treated in Manhattan by a obstetrician gynecologist. Two surgeries were performed by laparoscope for endometriosis and cysts and she was placed on prescribed with medication but developed allergic reactions and was then placed on birth control pills. She was then treated by another physician for about a year and a half but could not remember the doctor's name. During that time, she had another laparoscopic procedure performed at the university hospital for endometriosis and she was placed on medication to which she reacted. She was also undergoing treatment with another physician who also performed a laparoscopic examination and laser treatment for pelvic endometriosis and scar tissue. Additionally, she presented to the emergency rooms of various hospitals due to heavy bleeding and pain. She was treated next by another physician who also performed laser treatment at the university hospital for endometriosis. The procedure made her period lighter and less painful for about four to five months. She had two miscarriages and when she was in her late twenties, she was diagnosed with polycystic kidney disease. Thereafter, she began treatment with her attending gynecologist.

On her first visit with her attending gynecologist, the woman states she advised him that she had been trying to conceive for four months but her pregnancy test was negative. Thereafter, she was admitted by her attending gynecologist in a hospital for about a week to treat an infection. A Manhattan Personal Injury Lawyer said the attending gynecologist called a urology consult and she was diagnosed with interstitial cystitis. Her next visit with her attending gynecologist was for a painful and heavy period. He referred her to the reproductive specialist for fertility issues. She testified she was advised by the reproductive specialist that she could have children, but not with her current partner who had a low sperm count. Thereafter, she stated that her attending gynecologist told her it was time to consider having a hysterectomy as that was her only cure for the endometriosis. He explained that a hysterectomy would give her a better life with no more periods although she could have some hot Hashes and a few night sweats. Her attending gynecologist also gave her the name of an allergist to see about desensitizing her to some of the medication she had previously reacted to and used in the treatment of endometriosis. She did not see the allergist but returned and had a conversation with her attending gynecologist about having the hysterectomy, which was thereafter scheduled. Just before she was administered anesthesia, she was advised that tubing would be placed in her ureters so they would not be cut during surgery. After surgery she woke up crying and felt something was wrong. A week later, she was in pain on her right side and she was still bleeding, but was advised that she would heal slowly. She also was experiencing hot flashes, she couldn't sleep and her bones were hurting. She continued to bleed for a month or more and was given medication for hormone replacement. She developed problems urinating and was diagnosed with interstitial cystitis due to hydro-distention. She was still experiencing pain in her right side and had vaginal bleeding. She testified that her attending gynecologist told her to see a counselor and that he was not ordering any tests and that there was nothing wrong with her.

She then saw another doctor who examined her and found a large mass on her right side and referred her for an evaluation of her kidneys. The physician advised her that she had polycystic kidneys and performed surgery. The woman’s the tests revealed that part of her ovary was left inside her body at the time the hysterectomy was performed. The ovary was filled with blood, which was why she had so much pain when the estrogen patch was removed. She was recommended to see a doctor in Manhattan.

The Manhattan doctor ordered a CAT scan and performed laser surgery for endometriosis and scar tissue removal and recommended her to another doctor due to her inability to urinate since the hysterectomy and for treatment of a bladder infection. She was also referred to another doctor for her bloody bowel movement. She testified that the Manhattan doctor advised her that she did not need the hysterectomy and that her attending gynecologist only took out the organs but left the disease behind. The Manhattan doctor further states that the disease would only continue and that she should have only had a good cleaning instead of the hysterectomy.
A friend of the complainant testified to the effect of her experiences in accompanying the woman to the various treating physicians, and the pain and problems encountered by her. The accused parties’ expert has set forth in his affirmation that he is licensed to practice medicine and is board certified in obstetrics and gynecology. It is his opinion based upon a reasonable degree of medical certainty that the attending gynecologist and the hospital did not depart from accepted standards of care and practice and did not proximately cause any harm to the complainant.

The woman’s expert claims with a reasonable degree of medical certainty that the attending gynecologist departed from accepted standards of medical care when he performed a total abdominal hysterectomy and removal of both ovaries and fallopian tubes. These departures are the proximate cause of injury to the woman. The woman’s expert sets forth the physiology of endometriosis and states that while endometriosis can cause chronic pelvic pain, there are many additional gynecologic conditions that may be the source of chronic pain, and that other diseases, such as irritable bowel syndrome and interstitial cystitis can also cause pelvic pain. Psychological factors may contribute to the pain as well as the production of adhesions pulling on normal tissue. When the woman visited the attending gynecologist, she thought she might be pregnant and miscarrying, but was not pregnant. Two weeks later, she had severe left lower back pain, complaints strongly suggestive of kidney problems, and was sent to the hospital for admission and evaluation. The pelvic CT scan showed multiple cysts scattered throughout the liver, a left ovarian cyst, and bilateral medullary sponge kidneys. She was treated with antibiotics and discharged.

The woman’s expert opines that the attending gynecologist departed from the accepted standards of care by adopting a diagnostic bias by adopting the patient's history of endometriosis as the cause of her pain and stopped there instead of investigating the other possible causes of the pain.

The woman’s expert further opines that the attending gynecologist departed from the standard of care by not providing her with adequate medical information that the surgery may not resolve her chronic pelvic pain; and that her pain could be caused or contributed to by other conditions or adhesions can cause pain or worsen her condition. The woman’s expert sets forth that sterilization to treat pain in a woman of child-bearing years is a surgery of last resort, and definitive surgical treatment is reserved for patients for whom future fertility is not a consideration, and that the attending gynecologist failed to discuss with the woman the psychological impact of removal of both ovaries, her cervix and uterus while she was still considering the possibility of pregnancy, and further failed to refer her to a therapist regarding the possible emotional consequence to sterilization.

The woman’s expert further opines that the surgical pathology report documents do not support the attending gynecologist’s representation that the woman had severe and extensive stage IV endometriosis as it reveals only modest endometriosis on one fallopian tube and equivocates as to whether there was a cyst on the ovary. Based on the report, the attending gynecologist should not have removed all the organs as it was not indicated.

Based upon the foregoing, it is determined that there are factual issues raised by as experts' conflicting opinions concerning whether or not the total abdominal hysterectomy and removal of both ovaries and both fallopian tubes was indicated; whether other causes of the pain were ruled out prior to the surgery; whether proper informed consent was given to the plaintiff of child-bearing years who was trying to conceive; whether failing to remove the entire right ovary caused or contributed to her pain and injury; whether differential diagnoses were made prior to surgery; and whether or not the accused parties departed from accepted standards of care in the care and treatment of the woman, and if those departures were the proximate cause of her claimed injuries. The motion is granted.

When faced with medical condition, we entrust our safety and our life to our doctors. If a medical professional caused you pain and suffering, feel free to call the offices of Stephen Bilkis and Associates and speak with our legal team. We will provide you with legal guidance and a free consultation.

March 29, 2012

Child Suffers Brain Injury from Alleged Medical Malpractice

A mother filed a medical malpractice action against her attending physician, her infant’s pediatrician, and the hospital. It was urged that the medical malpractice included the accused parties' failure to properly monitor the mother's condition during labor when her blood loss was allegedly abnormal. While the bill of particulars in the prior action stated that the accused parties failed to treat a maternal complication known as placenta previa. At trial, the complainant and her medical expert claims that the mother's continuous moderate vaginal bleeding from the time of her admission until delivery was symptomatic of a condition known as placenta disorder where the placenta prematurely separates from the uterine wall causing depletion in oxygen transfer from the mother to the fetus. The oxygen depletion caused fetal distress and the mother contends a single transitory deceleration in the fetal heart rate from 134 to 92 beats per minute during labor and approximately an hour after her admission to the hospital. It was alleged that as a consequence of the attending physician’s failure to monitor the maternal and fetal condition, the infant sustained permanent brain injury.

After the first action was set down for the mother voluntarily discontinued as against the pediatrician and the hospital. A New York Injury Lawyer said the trial proceeded solely against the attending physician on the theory that the alleged condition of the mother during labor warranted the institution of certain procedures such as rupture of the membranes and/or the performance of a cesarean section, which would have prevented brain injury to the infant.

Three days after the jury rendered its verdict in favor of the attending physician, an action was instituted on behalf of the infant against the hospital and a resident in obstetrics and gynecology who assisted in the labor and delivery rooms on the day of the infant’s birth. A Bronx Personal Injury Lawyer said the second suit was premised on a theory of medical malpractice substantially similar to that alleged in the first, namely, the improper monitoring of the mother and fetus during labor, resulting in the failure to diagnose and treat abnormal vaginal bleeding which occasioned the infant’s birth injuries.

The hospital moved to amend the trial transcript so as to indicate that the complainants’ discontinuance against them was with prejudice. By order, a Trial Term granted the motion. However, the court reversed and denied the same upon the ground that the trial court and the attorneys for the parties in the first action had not complied with the statutory protections afforded to infants whose rights to proceed against a party are to be terminated. The Court of Appeals affirmed.

In March of 1981, the hospital and the resident obstetrics and gynecology, having properly raised the defenses of issues that were already settled and collateral obstruction in their responsive pleading brought on the instant motion for summary judgment to dismiss the complainants’ action on those grounds. In opposition, the infant and her mother asserted that the necessary prerequisite for application of those defenses had not been met in that, while the birth injuries to the infant were common to the actions, the factual bases for liability were wholly distinct from one another. In denying the motion, Special Term reasoned that holding that infant’s discontinuance of the said action against the hospital was without prejudice and the infant was in effect given the right to institute and continue his present lawsuit against the hospital and the resident gynecologist, notwithstanding the jury verdict against the infant in the prior action.

Based upon the record before the court, it can fairly be concluded that neither the quality of woman’s representation in the prior Supreme Court action, nor the initiative to proceed therein, were such as to call into question the application of issue disqualification. A Brooklyn Personal Injury Lawyer said clearly then, the woman has failed to sustain he burden of demonstrating that issue preclusion should not be applied because she did not have a full and fair opportunity to contest the determination now said to be controlling. Accordingly, we turn to the question of whether the accused parties have sustained their burden of establishing an identity of issue necessarily decided in the prior action.

In sum, then, it would seem that when disqualification is sought to be invoked with respect to questions arising in a suit based upon a different cause of action, inquiry must center upon those issues and facts directly raised and actually litigated in the prior action. For disqualification purposes, an issue is actually litigated when properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined. However, it has been observed that it may be said that the doctrine of issue preclusion no longer applies only to matters actually litigated. It may also apply to matters that were necessarily decided in the prior action although not actually litigated.

Based upon a comparison of the pleadings and their intensifications in the prior and instant actions, which are essentially identical, and other materials of record in the prior action, it is the Court’s opinion that the essential prerequisites of identity of issue have been met.

In essence, the infant seeks to retry his case based upon the exact facts upon which he previously relied. The only difference is the cast of accused parties. He obscures the similarity by urging that the inconsistency between the testimonies of his mother’s attending physician at her examination before trial and her later testimony at the first trial regarding the exact time when she arrived at the hospital and began monitoring the mother, is central to the issue of medical malpractice on the part of each accused party named. However, if, as the infant currently alleges and his counsel most strenuously urged upon trial of the prior action that the placental separation existed prior to the attending physician’s arrival, then as the accused parties’ expert at the first trial testified, and as accepted medical authorities agree, such pathological process had to continue because a placenta disorder, once detached, does not reattach itself. Moreover, had its existence been established at trial, a presumption of continuity would have been raised. Indeed, as the infant by his brief concedes, if in fact it was necessarily determined in the prior action that there was no abnormal maternal bleeding and the fetus was not in distress prior to delivery, the issue of disqualification would apply.

His assertion that the failure to properly monitor the mother, which occurred sometime between her admission to the hospital and the deceleration in the fetal heart rate at approximately 8:30 P.M., and the fact that her attending physician changed her testimony estimating her arrival at the hospital rather than her being present at the time of the admission and first examination of the expectant mother, creates a new issue as to the responsibility for the alleged medical malpractice, is in error. To succeed on the theory of liability against any of the accused party, the complainant would be required to demonstrate that the asserted placenta disorder existed, and that the single episode of slow heart rate heard by the attending physician evidenced such condition. Yet, the existence of the condition was fully litigated in the prior action. In finding that the attending physician was not guilty of medical malpractice, the jury necessarily determined that the alleged placenta disorder was not present, and therefore that any invasive procedures such as a cesarean section were not indicated under the circumstances. To conclude otherwise, would be to afford the complainant the opportunity to unfairly engage in repetitive litigation.

Accordingly, the order of Special Term should be reversed and the accused parties’ motion for summary judgment dismissing the complaint is granted.

Lawsuits are oftentimes results of merely misunderstandings. When patients are not informed properly of the risks and benefits of a certain medical procedure, or the risks when they neglect to do their part regarding their health conditions, a legal action will surely follow. If you want to be provided with sound legal advice, feel free to contact the offices of Stephen Bilkis and Associates. We will provide you with legal counsel and a free consultation.

March 28, 2012

Plaintiff Brings Medical Malpractice Claim for Birth Injury

At the time of the plaintiff's birth in 1967, plaintiff's mother was suffering from a diabetic condition and at the time of the trial in 1989 the mother was deceased. A medical malpractice action to recover damages for personal injuries, etc., was filed by plaintiff alleging that the defendant, hospital, failed to monitor her symptoms of low blood sugar (hypoglycemia) and respiratory distress (hypoxia) when she was born; and, as a result, she suffered irreversible brain injury (a birth injury or birth injury accident).

Plaintiff alleged that the defendant-hospital departed from the applicable standards of prenatal and neonatal care in treating her which proximately caused her cerebral palsy.

At the trial, a medical student (now a doctor), who attended the delivery, the attending pediatrician and the nursery staff nurse testified and had no independent recollection of events but relied on their notes contained in the hospital records admitted into evidence.

A New York Injury Lawyer said the plaintiff also relied on the aforesaid hospital records detailing her treatment to demonstrate that the hospital had deviated from good medical standards and practice.

It was conceded by the experts for both parties that the plaintiff's symptoms following her birth were related to her mother's diabetic condition.

The defendant conceded that the plaintiff did suffer an injury to the brain after birth, and, essentially, its defense was that the injury occurred because of the mother's diabetic condition and the plaintiff's prematurity, which were beyond medical control.

At the conclusion of a lengthy trial, a Nassau County Injury Lawyer said the jury responded in the defendant-hospital's favor to six interrogatories addressed to specific allegations of deviations by the hospital from accepted medical practice in the care of the mother and of the plaintiff at the time of her birth.

On the plaintiff's motion, the trial court set aside the verdict and granted the plaintiff a new trial. The herein court affirms.

It must be noted that in exercising appellate review functions, the herein court is cognizant of the trial court's unique opportunity to observe the events at the trial, and thus to properly assess the evidence. However, the trial court may only set aside a jury verdict if the verdict is not supported by a fair interpretation of the evidence.

The court rules that in having reviewed the trial record which includes the hospital records, it is satisfied that it was so replete with evidence of apparent deviations by the hospital that it is clear the trial court did not improvidently exercise its discretion in setting aside the verdict.

This is not a case in which the jury was faced with sharply conflicting expert testimony on the negligence issue which it resolved in the defendant's favor. A New York City Personal Injury Lawyer said at the trial, it was undisputed that the likelihood of an infant born of a diabetic mother developing the symptoms which the plaintiff developed was known to the medical profession in 1967. All the experts were also in agreement that it was important to control the mother's blood sugar levels. But here there was no monitoring of the mother's diabetic condition after she was admitted for an early delivery, and no specialist was available at the birth. Further, the experts concurred that it was generally known that the corrective treatment for the newborn plaintiff's low blood sugar was the administration of glucose, which, even in large amounts, would not harm an infant. Similarly, it was known that the plaintiff's cyanosis (blue color) was caused by lack of oxygen which could be corrected by increased oxygen levels. Despite medical knowledge at the time of the possible adverse effects of permitting these symptoms to continue over period of time, the hospital records demonstrated that the corrective treatments were not promptly administered to the plaintiff.

The only real conflict between the experts was whether the existence of these conditions was the proximate cause of the injury to the plaintiff's brain. However, in light of the jury's findings that no negligence had occurred, the issue of proximate cause was not reached.

Therefore, the herein court concludes that the preponderance of evidence in favor of the plaintiff on the issue of fault was so great that the verdict in favor of the defendant hospital could not have been reached upon any fair interpretation of the evidence.

Living a life in ways you couldn’t do what other normal people could, being physically and mentally challenged, is the most difficult thing anyone can experience. Depending on someone else or seeing someone having a difficulty to cope with the day to day activities is just heart-breaking. More so, if these difficulties are attributable to the negligence of another. If you have been wronged, consult with a lawyer immediately and know what rights of action you have to make these wrongdoers pay. Contact Stephen Bilkis & Associates and you will be advised by their skilled team, and receive a free consultation.

March 28, 2012

Mother brings Lawsuit for Harm Caused to Child by Lead Exposure

A child was born at a public hospital in New York on September 5, 2000. He was repeatedly brought to the same public hospital for his routine well-baby check-ups. At his six-month check-up, on March 21, 2001, he was not given the routine blood test required to screen for lead poisoning. He continued to go for routine well-baby check-ups at the public hospital. He came in a few times for ear infections, diarrhea, decreased appetite, stomach pain, decrease and a broken arm.

In March 2001, the infant changed residences with his parents. The apartment they moved into had peeling paint. It is the mother’s contention that the child was exposed to the lead in the peeling paint at their new apartment beginning at this time.

A New York Injury Lawyer said the first ever blood test screening for blood lead levels was first performed on the child only on August 14, 2002. At this time, the blood lead of the child was just 6 micrograms per deciliter. The mother was not told that this result could mean that her baby had been exposed to lead. The mother was not told that exposure to lead would cause cognitive impairment in her child.

The lead blood poisoning of the child was not diagnosed until September 9, 2003 when he was already 3 years old. He was hospitalized until September 17, 2003 to receive chelation therapy. The mother consulted three different lawyers. She intended to sue the owners of the apartment to recover damages for the lead poisoning of her baby due to the peeling paint in the apartment which contained lead. A Long Island Personal Injury Lawyer said one of the lawyers she consulted took the case because the owner of the apartment did not have any insurance. None of the lawyers ever informed her that she had a cause of action against the public hospital for medical malpractice.

The baby boy continued to go to the public hospital for follow-up-check-ups and routine well-baby check-ups from 2003 until March 2006.

In the meantime, on June 8, 2005, the parents finally found lawyers who told them that they had a cause of action for medical malpractice against the public hospital. The doctors first served a claim against the public hospital on February 6, 2006. On July 21, 2006, the public hospital examined the hospital records in their possession and deposed the mother. On September 28, 2006 the mother finally filed a medical malpractice case against the public hospital and served summons and a copy of the complaint on the public hospital on October 2, 2006.

The mother claims that the public hospital’s failure to perform the routine blood test for blood lead levels when the baby was 6 months old, when he was a year old, and when he was two years old resulted in the prolonged and undiagnosed exposure of their baby to lead. A Manhattan Personal Injury Lawyer said this lead poisoned their child and the lead poisoning caused his brain injury, learning disabilities, speech disorders, hyperactivity, attention deficit and developmental delay. For this, the mother claims damages.

The hospital claims that the complaint is barred by the Statute of Limitations. The law provides that actions for medical malpractice must be initiated within two years and six months from the time the medical malpractice or the last treatment of the illness, injury or condition complained of.

It was the hospital’s contention that they continued to treat the child until March 2006. They claim that the continues treatment should count only from the time that the lead poisoning was discovered in September 2003 but that it cannot count until March 2001 when the child turned 6 months. In effect, the hospital was asking the Court to dismiss that part of the complaint that alleged medical malpractice in failing to test the child from March 2001 until August 2002. They claim that if they had committed medical malpractice, only that which may have occurred after September 2003 should be considered.

The Court found that prior to September 9, 2003 there was no evidence that the child had lead poisoning. His treatments and visits to the public hospital were for routine well-baby check-ups. The lead poisoning was diagnosed only on September 9, 2003. After this date, the child began continuous treatment for the lead poisoning. Thus, the notice to the public hospital should be deemed effective only beginning September 9, 2003.

Despite this finding, the Court still made the late notice apply to any medical malpractice beginning on March 22, 2001 until September 9, 2003 because the medical malpractice case include injury to a child who is mentally and physically incapacitated to look out for its own interests.

Skilled lawyers not only need to prove negligence and deviation from accepted medical malpractice, they also need to file timely notices of claim if the party being sued is a public hospital. The attorneys from Stephen Bilkis and Associates are ready and willing to assist you in filing a notice of claim. They are also willing to assess the facts of your case to see if you have a viable cause of action for medical malpractice. Call Stephen Bilkis and Associates today, speak with any of their legal team and begin the process to ensure you are compensated for valid legal claims you may have.

March 27, 2012

Court Decides Case for Birth Injuries

A mother and her infant filed a complaint of medical malpractice and lack of informed consent with a derivative cause of action for loss of services. The infant was born prematurely at the university hospital and remained hospitalized for two more months. In the complainants’ bill of particulars, it is asserted that the gynecologist, the attending pediatrician and the hospital rendered care and treatment during labor and delivery, and upon birth of the infant, treatment of the infant for prematurity, respiratory distress syndrome and sepsis. The mother allege that the accused parties failed to timely and properly diagnose and treat the infant for hydrocephalus and failed to timely provide propelling of the fluid from the infant’s brain causing loss of function of the brain tissue. The mother claim that as a result, the infant has suffered profound and global developmental deficiencies with no hope for meaningful improvement, has required multiple hospitalizations, has undergone stem cell implants in an attempt to replace the lost functioning of the white matter, and that she will require 24 hour care for the remainder of her life with constant medical supervision.

The gynecologist and the attending pediatrician allege there were no departures from the appropriate medical standards of care and that they did not proximately cause the injuries from which the infant suffers. According to a New York Injury Lawyer, the physician argues that in the period of time he cared for the infant, she exhibited no signs of problems, demonstrated no pleural effusion and did not need to be seen by a pediatric neurosurgeon. Thus, the accused parties seek to dismiss the complaint as asserted against each of them.

The attending pediatrician testified that a discharge physical exam written by the resident indicated that the baby had hydrocephalus, but his fontanels and sutures were flat, suggesting that the hydrocephalus etiology was from a condition where the brain and the cranium is growing and that the hydrocephalus is not getting worse. He stated the infant was being discharged home to her parents and was to follow up with neurosurgery in three weeks. A Nassau County Personal Injury Lawyer further testified that the retinopathy of prematurity was not a complication of oxygen therapy, but was from prematurity as it is not seen in term newborns, and that it is a condition that affects the retina independent of the hydrocephalus.

Another pediatrics expert states that he reviewed the admission record of the infant maintained by university hospital, the verified Bill of Particulars and Supplemental verified Bill of Particulars, as well as the deposition transcripts, the summons and complaint, and complainants’ neonatology Expert Disclosure. It is the expert’s opinion within a reasonable degree of medical certainty that the attending pediatrician did not depart from accepted standards of care with respect to either the treatment he personally provided to the infant or the treatment provided by residents, fellows and other medical personnel to the infant under his supervision.

The pediatric expert sets forth that it is the mother’s theory that all of the infant’s injuries are secondary to the events that transpired one month after birth and during that time frame, a series of events occurred which caused the infant to sustain an deprivation of oxygen supply injury to the brain leading to the development of permanent seizure disorder, global developmental deficiencies and severe neurological birth injury. He further states that the attending pediatrician had absolutely no contact with the infant during the relevant time frame either in a direct or supervisory capacity. He states that as a result of the infant’s extreme prematurity, she was diagnosed with numerous medical conditions including respiratory distress syndrome, abnormal bilirubin level and sepsis. He further states that the infant's attending pediatrician performed his initial examination of the infant approximately four hours after her birth, and by the time of his initial examination, her condition was such that she had already been placed on a ventilator and was treated for his respiratory distress syndrome. The pediatrics expert further sets forth that the alleged infant’s permanent lungs and eye related to the improper administration of oxygen are entirely without merit as there is no evidence whatsoever to indicate that either the retinopathy of prematurity or the lung injuries were secondary to the improper administration of oxygen. Based upon the foregoing, it is determined that the attending pediatrics has demonstrated legitimate case entitled to dismiss the complaint against him.

A New York City Personal Injury Lawyer said the complainants’ expert opinion claims that the attending pediatrician departed from accepted medical practice by allowing the infant to receive inappropriately high concentrations of oxygen in order to maintain an unnecessarily high blood oxygen saturation, and that he further deviated from accepted medical practice by failing to monitor the position of the catheter line and recognize that it was no longer in the large vein that carries de-oxygenated blood. The expert further opines that because of the infant’s birth weight and gestational age, she was already at risk for developing white matter injury to the brain, and that the attending pediatrician’s endorsement of the order for oxygen at that level allowed her to receive the aforementioned oxygen concentrations which made the white matter more susceptible to any injury.

The mother’s expert states that a premature infant has an immature auto-regulation of blood flow to the brain and it is vulnerable to changes in blood pressure, oxygen levels and carbon dioxide levels, and as a premature infant with an infection of the placenta present at the time of her birth, the infant was at increased risk for death of brain tissue. The expert further states that the infant did not have any sign of a brain injury including hemorrhage at birth and during the first week of her life. In addition, the expert further states that one month after birth, the infant had no evidence of such an injury on the head ultrasounds that were done, and it was the repeated exposure to the aforesaid oxygen concentrations that made her more susceptible to death of brain tissue, making her unable to withstand the insult of the respiratory distress and the resultant oxygen saturation caused by the infusion of the intravenous fluid into her chest.
He further states that during the infant’s admission, the attending physician was in charge of the neonatal intensive care unit and oversaw all orders written by the residents and fellows and required the nurses to adjust the ventilator setting of the oxygen concentration which is unacceptable for the infants gestational range and birth weight range. He claims that exposure to such high concentrations of oxygen increased the infant's risk for development of injury to her tissues, including her brain, eyes and lungs. The mother’s expert further claims that as the infant’s attending physician, he had the obligation to review the orders and flow sheets documenting the ventilator settings, vital signs, blood gases and oxygen concentrations in the blood; and as the Director of the Fellowship Program, he had the obligation to be knowledgeable about the developments in neonatal care, including the effect of excess oxygen in the system of a neonate.

It is determined by the Court that the mother’s experts have raised material issues of fact in opposing the attending pediatrician’s motion to prevent the dismissal of the complaint. The factual issues raised the alleged departures from the standards of care. The complainants have demonstrated the existence of issues capable of trial of fact attesting to departures from accepted practice by the attending pediatrician and the departures were competent in producing cause of injuries to the infant.

Accordingly, motion by the infant’s attending pediatrician to dismiss the complaint against him is denied as there are material issues of fact which preclude the same. The motion by the accused pediatric expert to dismiss the complaint, opposed by the mother and her infant is denied.

If your life or a member of your family’s life is put into danger caused by the negligence of a medical practitioner, you may seek the assistance of a skilled lawyer at Stephen Bilkis and Associates. When a newborn child’s life is the one at risk, don’t hesitate to consult us right away for advice and a free consultation.

March 27, 2012

Mother Brings Suit for Serious Birth Injury to Child

A pregnant woman who was receiving prenatal treatment at a clinic came to the emergency room of a university hospital on March 29, 1997 complaining of leaking amniotic fluid. The residents and interns attended to her by taking her medical history and interviewing her. A licensed obstetrician saw the pregnant woman and conducted tests on at vaginal fluid but found negative results. They also performed a test to determine if the amniotic fluid was sufficient and they found the amount of amniotic fluid to be normal. A fetal heart monitor was used to check if the baby was distressed but the fetus was active and its heart beat was normal. She was discharged. She was also advised to rest and go to the clinic on March 31, 1997.

When the pregnant woman went back to the clinic as she was instructed, they confirmed the findings of the university hospital staff that there was no leak in her amniotic fluid. All her vital signs were normal as were her fetus’s heart tones. A New York Injury Lawyer said she was ordered to return for an ultrasound after two days so that she can present her employer with a medical certificate for her two-day absence from work. She was told to return for her scheduled follow-up visits after a week or on April 7, 1997.

But a day after her visit to the clinic, on April 1, 1997, the pregnant lady went back to the emergency room. The obstetrician on duty determined that the lady’s bag of water had already broken. She was admitted into the hospital and given antibiotics to forestall any infection. She was also given medications to prolong the pregnancy. At that time, the pregnant lady had no fever. She stayed in the hospital for two more days. On April 3, 1997, she gave birth. Her placenta and her bag of waters were tested and the tests revealed that the pregnant lady had a mild infection of the amniotic lining.

The baby had to be ventilated and was given antibiotics to forestall any sepsis. A Queens Personal Injury Lawyer said that after five days and no infection was noted, the antibiotics were stopped. When the baby’s skin turned yellowish, it was given phototherapy and the mild jaundice was resolved. One week after birth, the baby had difficulty breathing and its heart rate slowed. They started antibiotics again and it was determined that the baby was suffering from meningitis. The baby was discharged from the university hospital on May 28, 1997.

The baby was diagnosed to experience apnea (breathlessness while asleep). The child was also diagnosed to have an obstruction in the intestines and had to undergo surgery to correct the problem. Because of the meningitis, the baby experienced seizures within the first three months of birth but the seizures have not recurred. The child was screened for vision and hearing and found some abnormalities. They advised the mother to present the baby for outpatient follow-up.

The woman then sued for medical malpractice the university hospital and the doctors, interns and residents who treated her there for the two times she came to the emergency room. She also sued the obstetrician who helped deliver her baby and the pediatricians and residents and interns who took care of her baby in the neonatal intensive care unit. She claims that the doctors were guilty of medical malpractice for failing to timely and correctly diagnose that she had an infection in her amniotic sac lining. They also committed medical malpractice for failing to give her enough antibiotics to kill all the bacteria present in her amniotic fluid. She claims that the insufficient antibiotics that failed to kill the bacteria in her amniotic fluid was the direct cause of her baby’s contracting meningitis. She also sued for medical malpractice the pediatricians, residents and interns claiming that their negligence in caring for her baby caused him to develop brain damage and other neurological disabilities.

The residents and interns moved for a summary judgment asking dismissal of the medical malpractice case against them as they were just students at that time. They did not treat the pregnant lady apart from taking her medical history and merely executing the orders of the attending physicians. The plaintiff did not object to the motion so the motion was granted.
The obstetrician who examined her when she presented herself for the first time at the emergency room when she complained that her amniotic fluid was leaking also filed a motion for summary judgment asking that the case against them be dismissed because they did not deviate from accepted medical practice. The plaintiff did not oppose this motion. The Court found that there was no evidence of infection of any kind at the time that the lady first presented herself at the emergency room and so, the Court dismissed the case against them.

The obstetricians who delivered her baby also moved for a summary judgment asking for the summary dismissal of the case against them as they did not deviate from accepted medical practice. A Suffolk County Personal Injury Lawyer said the plaintiff vigorously opposed this motion claiming that the obstetricians failed to give her sufficient antibiotics when she came into the emergency room for the second time. She claims that this is the direct cause why the bacteria that caused her infection thrived and infected her baby as well, although her baby’s infection did not manifest until after a week from birth.

The Court ruled that the plaintiff has raised a question of material fact that must be tried by a jury. The obstetricians’ motion for summary dismissal was denied. The Court ordered that trial on this sole issue of material fact ensue in the lower court.

Part of the job of a lawyer is to determine whom to sue. Not all doctors in an emergency room who had contact with a patient can be sued. A skilled attorney also has to plead only those material facts that show negligence or deviation for accepted medical practices. At Stephen Bilkis and Associates, our legal team can help you assess the facts of your case.

March 26, 2012

Plaintiff Claims Malpractice Due to Birth Injury

The infant was allegedly injured during her mother's labor and delivery as a result of the accused party’s medical malpractice. The infant was born in 1999 in one of the hospitals by the State Health and Hospitals Corporation facility (HHC). The record reflects that the infant was admitted for shaking and possible seizure three weeks after birth in another hospital not affiliated with the hospital. The unaffiliated hospital records show that the mother told the doctors that the infant had been shaking since birth. Those records also show that the mother told the doctors that the infant had fallen on the floor when she was three days old and that there was some family history of epilepsy. Seven months after birth, a doctor from the unaffiliated hospital found that the infant has a seizure disorder.

Nine years after the infant's birth, the mother and the infant moved for leave to serve a late notice of claim on the hospital. The mother alleged that the infant had suffered fetal distress but the hospital had allowed the mother to labor for 48 hours which resulted to the infant’s birth injury. In further support of the motion, the mother asserted in an affidavit that the hospital should have performed an emergency caesarean section. A New York Injury Lawyer said the mother stated that when the infant was born she was purple and she would shake all over her body and her eyes would roll back. She further stated that she had complained about the infant's condition to the nurses at the time, but they told her nothing was wrong. Hence, the complainant asserted that leave to file a late notice should be granted because they had met their burden of showing that the hospital had actual, contemporaneous notice of the facts underlying the claim.

In opposition to the motion, the hospital asserted that its hospital's records do not support the mother’s allegations that it allowed prolonged fetal distress and the complainants failed to attach an expert affidavit establishing a connection between any alleged complications during labor or delivery and the infant's injuries. A Westchester County Personal Injury Lawyer said that more significantly, the hospital asserted that the records directly contradict the contention that there was anything wrong with the infant, or that they include any reference to the mother's report of the infant’s shaking or rolling back of eyes. On the contrary, the hospital argued that the medical records established that the infant was a healthy newborn.

In reply, the complainants annexed the records from the affiliated hospital. The record certifies that three weeks after the woman was discharge from the hospital, the mother told doctors at the unaffiliated hospital that the infant had a history of seizures since birth. The mother annexed the affiliated hospital records to show that the infant has been documented as having suffered seizures since birth or her second day of life.

The motion court granted the motion to file a late notice of claim of the infant but denied the motion of the mother since it is time-barred. The motion court reasoned that the accused had actual notice of the facts underlying the claim. Hence, the court concluded that the delay in notice would cause the hospital only some prejudice in investigating the claim. The hospital appeals but the court finds that the hospital had no actual notice of the facts underlying the medical malpractice claim, and would be substantially prejudiced by receipt of the notice of the infant’s claim nine years after the alleged medical malpractice took place.

The motion court noted that the attending physician who admitted the mother and made the decision to induce labor is no longer employed at the hospital and the obstetrician who delivered the infant resides outside of the state. Therefore, the accused party’s ability to defend itself against the mother's allegations is substantially prejudiced by the passage of nine years. Accordingly, the order of Supreme Court granted the infant's motion for leave to serve a late notice of claim upon the accused parties should be reversed without costs and the motion denied.
In taking care of children, one must be very observant and keen. Any unusual observations especially injuries in children caused by other people should be properly addressed with the help of a New York Injury Attorney from Stephen Bilkis and Associates. When dealing with birth related actions, be sure to contact a NYC Birth Injury Accident Lawyer or a NY Medical Malpractice Attorney.

March 23, 2012

Court Hears Medical Malpractice Action Regarding Birth Injury

A thirty-seven year old woman consulted an obstetrician/ gynecologist. She had a thyroid condition and had given birth to a deformed child. She specifically went to this obstetrician for him to inform and advise her on the risk of having another deformed child if she were to get pregnant again. Knowing all this background information, the obstetrician did not inform the woman about amniocentesis, a test which draws amniotic fluid from the mother and testing it for markers for genetic or chromosomal abnormality. The doctors did not give her any advice whatsoever as to how to determine if the child she was carrying would also be deformed.

According to a New York Injury Lawyer, as a result of the lack of information, the woman continued her pregnancy and eventually gave birth to a child with Down’s syndrome. She sued the doctors for negligence, medical malpractice, lack of informed consent, breach of contract and wrongful life. The woman claimed damages for her pain and suffering at having delivered an impaired child; she claimed damages for the extraordinary cost of caring and supporting the impaired child. The husband also included a cause of action for loss of income as a result of the child’s deformity, loss of consortium and for his own pain and anguish. The woman filed a separate cause of action on behalf of their child, seeking damages for his own pain and suffering for the burden of living life impaired.

The obstetrician filed a motion for summary judgment asking for the dismissal of all the causes of action and alleging that there are no material issues of fact that need to be tried. A Nassau County Personal Injury Lawyer said the Court granted the motion and dismissed the wife’s cause of action for her pain and suffering; the cause of action for the husband’s pain and suffering and loss of income; the cause of action for lack of informed consent and for breach of contract; the cause of action for the wife’s development of breast cancer due to the stress; and the claim for punitive damages in behalf of the child.

The plaintiffs appealed the dismissal. A Queens Personal Injury Lawyer said the Court upheld the dismissal only in part it ruled that the parents suffered harm from the failure and negligence of the doctor to administer a test to her. Thus, she can claim for her own pain and suffering.

The Court ruled that while it is legally possible to maintain a suit in damages for medical malpractice against a doctor who fails to properly diagnose a pregnancy which prevented a mother from timely aborting the child. Here, the source of the claim is not the child’s injury, but the injury sustained by the mother when the doctor failed to perform his duty to care for the mother as her obstetrician. The doctor, as the person responsible for the injury must respond for all damages which are natural consequences of the wrongful act he committed.

The wrongful birth cause of action was properly dismissed because the parents sought damages for the birth of the child itself. Recognizing this claim would mean that the court will rule that the child was placed in a worse position for having been born due to the medical malpractice of the doctor. The Court ruled that it cannot affix a price on the how much better off the child would be had it not been born.

The father’s suit in damages is a derivative cause of action. As such, it can only exist if the child’s right to be compensated also exists and is also compensable. As the Court had already ruled that the child’s claim for wrongful birth is not a legally compensable injury, then the father’s derivative cause of action must also fail.

The woman cannot sue for lack of informed consent as this is reserved for those doctors whose medical malpractice involved surgery, injection or any invasive procedure that he performed without first obtaining the consent of the patient who was injured. For this cause of action to survive, the woman must allege that the doctor performed surgery on her which he clearly did not. The basis of the claim is the doctor’s failure to do a duty. This cause of action was also rightly dismissed.

A skilled attorney has to prove a doctor’s duty of care that the law or his profession imposes on him; he also has to prove the doctor’s failure or breach to perform that duty of care. An attorney may also prove that in performing the duty of care, the doctor deviated from generally accepted medical standards. Without allegations such as these, there is no viable cause of action for medical malpractice. Call Stephen Bilkis and Associates today for a free consultation. Ask them to evaluate the facts of your case to see if you have a viable cause of action for medical malpractice.

March 23, 2012

Court Decides Medical Malpractice Action for Failure to Diagnose

A thirty-seven year old woman got pregnant in 1974. When she and her husband learned that she was pregnant, they engaged obstetrical specialists. They treated her and cared for her during the rest of her pregnancy. These specialists also delivered her baby on May 10, 1975.
The baby girl was born with Down’s syndrome. The parents brought suit against the specialists for negligence and for medical malpractice claiming that they should have known that women over thirty-five years old (such as the pregnant lady here) have a much higher risk of giving birth to infants with Down’s syndrome. As specialists, they should have taken care of the pregnant lady and advised her to undergo amniocentesis. This is a test where a needle is inserted through the mother’s navel and a sample of the amniotic fluid is drawn and tested for its chemical and DNA properties. A scrutiny of the fluid can detect if the baby has chromosomal defects that would signal that the baby has Down’s syndrome.

A New York Injury Lawyer said the parents sued the obstetrical specialists for negligence and medical practice in behalf of their child. They also included in their complaint a cause of action for actual damages. They are asking that the doctors pay for what they may need to spend for the institutional care of their child. They also included in their complaint a cause of action for damages to the parents. They contend that the obstetricians’ negligence and medical malpractice caused them emotional harm when their child was born with Down’s syndrome.

The obstetric specialist filed a motion asking that the complaint be dismissed for failure to state a cause of action. The doctor alleges that the complaint seeks damages for an injury which is not legally cognizable as compensable. He claims that the suit in negligence and medical malpractice is actually a wrongful life suit which is not an actionable wrong.

The only question presented to the Supreme Court, according to a Nassau County Personal Injury Lawyer is whether or not the complaint should be dismissed for failure to state a cause of action. The Supreme Court found that the part of the complaint which was brought by the parents in representation of their infant and which seeks damages for the wrongful birth of a retarded child should be dismissed. The parents’ suit for emotional harm caused by the birth of a retarded child should also be dismissed. Only the suit for the actual damages they will incur in the institutional care of their child survived as a suit which states a cause of action.

The Court declared that for the purpose of reviewing the sufficiency of the complaint, the allegations of the complaint must first be assumed to be true. A Queens Personal Injury Lawyer said that the Court presumed for the sake of argument that the doctors were indeed negligent and committed a medical malpractice in failing to advice the pregnant lady that there is a test available to determine whether the baby had Down’s syndrome. And the Court also presumed that had they been informed, they would have had the fetus aborted.
The Court also ruled that resolving cases of this nature cannot include only the mechanical application of legal principles but must include the application of public policy.

The Court also explained that causes of action for “wrongful birth” are classified into “wrongful conception” where the pregnant lady tried to have an abortion but the abortion was unsuccessful and the child born is either born healthy but unwanted, or the child is born unhealthy and unwanted. There is also the classification of “wrongful diagnosis” where a pregnancy was wrongly diagnosed and the mother was deprived of the right to terminate the pregnancy within the allowable period.

This case does not fall into these two categories. In this case a mentally impaired child brings suit to recover damages for the injury she suffered as a consequence of her birth as a stigmatized child. Here, the pregnancy was not unwanted; the child was fully intended but the child born needs extraordinary care and treatment. There is no claim that the doctor’s negligence or medical malpractice caused the child’s impairment. The Court ruled that the child did not suffer a legally cognizable injury because there is no law that gives every child the right to be born whole or healthy.

The calculation of damages would be speculative and the Court is not equipped to make that calculation. Damages are supposed to restore a person to his original position prior to the negligence. What amount of damages can be given to restore a child to his previous state, which is, that he should not have been born?

The emotional distress caused by the birth of an impaired child cannot be recognized either as there is no law that guarantees parents that every child they conceive shall be born healthy. The distress caused by the birth of a child that is impaired is real but it is not legally compensable.

A skilled attorney needs to prove negligence or breach of a duty of the doctor to care for his patient.They also need to prove that the doctor deviated from accepted medical malpractice and the deviation is the cause of the injury to the child or to the mother. At Stephen Bilkis and Associates, qualified lawyers can sit with you and assess the facts of your case to determine the viability of a medical malpractice suit. Call Stephen Bilkis and Associates today and ask for their advice or assistance, they are more than happy to help ensure that you are justly compensated for any valid legal claims you have.

March 22, 2012

Court Hears Medical Malpractice Case for Abortion Proceedure

An unmarried woman got pregnant. She discussed the pregnancy with her boyfriend and they determined that they were unable to care for and rear a child at this time. The woman decided to have an abortion. She went to an advertised abortion clinic. She was asked to fill up forms and wait until a doctor can see her. In the meantime, a nurse took her blood pressure and her medical history. She was also asked to pay in cash for the abortion procedure.

When the doctor was available, the unmarried woman was brought to an examining room and was examined by the doctor. The doctor explained how the abortion procedure would be performed and informed her that she would experience cramping. She was told to take Tylenol for the pain and to come in for a follow-up after two weeks. The doctor then performed the procedure on her. After the procedure, the nurse injected her with RhoGAM because she was Rh-negative. She was charged $25 dollars for the injection. The unmarried lady went home and took Tylenol for her cramps. A New York Injury Lawyer said the cramps continued and she just continued taking Tylenol. She decided to return for a follow-up check-up at the abortion clinic but there was a snow storm on the day of her appointment and so she was unable to go to the clinic.

The abortion clinic received a pathology report which suggested that the unmarried woman was still pregnant and the abortion procedure was unsuccessful. They did not call or inform the unmarried lady. They did not tell her to come in for another abortion as the first one was unsuccessful.

The lady was at work when she felt extreme pain. She asked her boyfriend to bring her to a hospital. While in the waiting room of the emergency room of the hospital, she experienced a pressure in her abdomen. She went to the bathroom and she felt something fall out of her. In the toilet bowl, she saw a four and a half inch fetus and much blood. She started screaming. Medical personnel came to get her from the toilet stall.

The fetus was still attached to the umbilical cord and the placenta was still inside the unmarried lady’s uterus. A Long Island Personal Injury Lawyer said the medical personnel delivered the placenta and cleaned out her uterus. She was in the hospital for two days.

The lady suffered post-traumatic depression, nightmares and sleeplessness. She became withdrawn and refused to resume sexual relations with men for fear that she would again get pregnant.

She sued the abortion clinic for negligence and medical malpractice for the unsuccessful abortion, for failing to inform her of the unsuccessful abortion which she alleged to have caused her extreme pain and emotional distress. She also claimed that she was psychologically traumatized when she miscarried and saw the fetus.

At the trial court stage, the abortion clinic appeared but later, their lawyers withdrew their appearance and they did not participate. The doctors defaulted and did not even file an answer. After the trial, a Westchester County Personal Injury Lawyer said the jury awarded the unmarried woman $135,000.00 in damages.

The abortion clinic and the doctors ask for a new trial. On the appeal level, the court was constrained to reduce the award to $125,000. The abortion clinic and the doctors appealed from this reduced award. They claim that the complaint should be dismissed.

The only question before the Court is whether or not the complaint should be dismissed for failing to state a cause of action.

On the defendant’s claim that the pain experienced by the unmarried lady was a necessary accompaniment of the childbirth process, the Court ruled that the lady’s injuries were not a natural part of child birth. She had an illness or condition for which she sought treatment and the doctors failed in their duty to care for her.

On the defendant’s claim that the lady cannot claim for emotional distress from seeing her stillborn fetus, the Court held that the lady proved her own personal and direct personal injury: she suffered intense pain for which she had to be hospitalized. The unsuccessful abortion caused her to expel her fetus and she had to undergo uterine curettage (scraping of the uterus) which is a painful procedure.

The lady also did not claim for any pain or injury for the aborted or miscarried fetus. She only claims damages for her own personal physical and emotional injury. She did not sue for damages arising from negligence and medical malpractice from what happened to the fetus but her suit is based on what happened to her when she underwent a spontaneous miscarriage.

The Court affirmed the reduced award of $125,000 for the pain and emotional distress.
An attorney must prove a duty of care that a doctor breached. Or, in the alternative, a skilled lawyer has to prove that in performing the duty of care, the doctor deviated from accepted medical procedures and standards. At Stephen Bilkis and Associates, their legal team can help advice you as to the viability of your claim for medical malpractice. They can assist you in gathering evidence, drafting your complaint and even deposing witnesses. Call Stephen Bilkis and Associates today and schedule a free consultation.

March 21, 2012

Couple Sues for Medical Malpractice

A baby was born who lived for only five hours. The death was caused by polycystic kidney disease, a fatal hereditary disease. This disease was caused by the same parents and there is a high probability passing on the kidney disease to the future baby. After the birth of the baby, the parents immediately sought out medical counseling of the doctors if there will be risk to another baby born to them to be afflicted with the kidney disease.

A New York Injury Lawyer said the parents are now suing the doctor for wanton and gross disregard of medical fact. According to them, the doctors gave them medically inaccurate advice that the chances of the future baby with the kidney disease were “practically nil” and that the disease is not hereditary, when in fact it was hereditary. The parents, in deciding whether to have another child, relied on the advice of the doctors since they have superior knowledge and expert in the medical field in. If only they were given accurate medical advice, they would have chosen not to have another baby. However, they in fact relied on the assurance of the doctors that it would be safe for the wife to have another child and became again pregnant and have another baby. The same doctors delivered the baby, which was also born with polycystic kidney disease. The baby lived for only two and one-half years before succumbing to this fatal disease.

The action filed by the parents is based on the so-called “wrongful life” and for the medical expenses, emotional distress and loss of service, in medical malpractice and fraud, and the negligence and failure of the doctors to properly inform, advise and warn the parents of the risks attendant upon a future pregnancy. According to them, it is the duty of the doctors, with their medical knowledge to have an understanding of the circumstances and should have given them accurate medical-genetic advice. The doctors knew or should have known that the parents have a genuine cause to be concerned and that they would rely on the superior medical knowledge and advice of them. The incorrect advice, lead directly to the birth of another baby with the exact genetic disease. This was believed to be the proximate cause of the injury to the parents and suffering to the needless birth of the genetically deformed child.
The issue in this case is whether the conduct of the doctors, wrongful to the parents, is a wrong which is cognizable at law.

The court ruled to dismiss the case. The court will not impose upon all obstetricians the duty of becoming forced genetic counselors. An NYC Personal Injury Lawyer said that based on jurisprudence, it would make the physician a virtual insurer of the genetic health of newborns and the disease are merely fortuitous events. The court decided that no such duty existed between the doctors and the patient is unilaterally seeking to expand the nature of the medical duty of the doctor clearly it is an intolerable burden upon the doctors.

Since the mother was the patient of the doctors, to take genealogical history of the non-father would be an intolerable burden. Without studying the genealogical history of the father, the doctors could not reach to any conclusions with respect to the future children of the parents.

The court ruled that the cause of action by the parents would require the extension of traditional tort concepts beyond manageable bounds, damages for the pain and suffering, medical expenses incurred on behalf of the child during her life, should all be dismissed. An NY Personal Injury Lawyer said the court based its decision on the fact that the parents seek damages solely because of the existence of life or wrongful life, rather than no life at all. Such suits are not cognizable at law and have not favor with the courts.

Stephen Bilkis and Associates with its skilled lawyers can help you fight for your rights that exist in physician-patient relationship. When injury or disease results at the birth of our child, we can seek justice and compensation for injuries caused by another's negligence.

March 20, 2012

Court Decides Case Regarding Medical Malpractice for Failure to Diagnose

A couple, who are carriers of genetic mutations that cause cystic fibrosis were residents of the State of Colorado. When the wife became pregnant with triplets via in vitro fertilization, they decided to have a genetic test to determine the health of the fetuses. A doctor, who is the Chief of the Columbia Center for Genetics, Fetal and Maternal medicine gave the mother the option where to do the procedure, either to go to New York or to go to Philadelphia, Pennsylvania. The couple chose to go to Philadelphia.

The doctor performed a chorionic villus sampling (CVS) procedure on the triplet fetuses. This procedure involves taking a small sample of the placental tissue of each fetus to perform chromosomal and DNA analysis. A New York Injury Lawyer said the samples taken were split and labeled as belonging to fetus A, B and C. The results showed that they had one healthy fetus and two with cystic fibrosis. Based on the DNA analysis, Fetus C was a carrier of cystic fibrosis but did not have the disease. On the other hand, A and B had cystic fibrosis. On the belief that two fetuses had cystic fibrosis, the parents decided to have the doctor reduce those two fetuses, while allowing the pregnancy to continue as to the third fetus which believed to be carrier. However, the confirmatory studies done were incomplete due to the DNA insufficiency in the samples. The parents continue the pregnancy of the third fetus. When the baby was born, he was diagnosed with cystic fibrosis.

Now the parents are suing the doctor for damages based on the alleged “wrongful birth” of their son, who was born with cystic fibrosis. According to the parents, they consulted the doctor before the baby was born with the specific purpose of confirming whether the infant would be born with cystic fibrosis and with the intention to terminate the pregnancy if cystic fibrosis was confirmed. Due to the doctor’s medical malpractice connected with the pre-natal genetic testing and reduction of the two fetuses, they were not informed of the condition of the third fetus and would have chosen not to continue the pregnancy.

The parents commenced the action against the doctor and Columbia in New York. The parents have engaged in extensive discovery which included numerous depositions of the various persons involved in the testing and related procedures in the various states. The residence of these depositions and the parents include Colorado, New York, Pennsylvania and New Jersey.
The legal issues they are facing relates to forum non conveniens and choice of law.

There is forum non conveniens when the court finds that in the interest of substantial justice the action should be heard in another forum. A Suffolk Personal Injury Lawyer said the defendants move to dismiss the action on this ground. The doctor emphasizes that he performed all the procedures in Pennsylvania and most of the relevant witnesses reside in that state. However, the parents support to maintain jurisdiction in New York asserting that there are no available forum exists as the State of Pennsylvania does not recognize claims for wrongful birth.

The court agrees with the parents that the place where the injury occurred is Colorado, where the baby is born and the damages incurred by the parents for the baby’s care and treatment all occurred, even if the doctor performed his procedure in Pennsylvania.

According to jurisprudence, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred. The location in this case should be determined where the parents’ injuries occurred. Based on this, said a Long Island Personal Injury Lawyer, the court denied the motion to dismiss of the defendants and Colorado law shall be applied.

Stephen Bilkis and Associates can give you advice on remedies that can help you with your cause. Our skilled legal team are also available if your newborn baby suffered injury due to negligence of the doctors and medical staff. The asking for their help, we can understand more what our rights are and how we can fight for them.

March 20, 2012

Court Determines if Statute of Limitations has run in a Medical Malpractice Case

In 1967, at the age of 26, plaintiff began to undergo regular gynecological examinations in the office of defendant-doctor, an obstetrician-gynecologist. In April of 1969, plaintiff became pregnant for the first time. During the course of her pregnancy, she began to experience problems, including severe bleeding, which, according to defendant-doctor, indicated the possibility of a miscarriage. He thereupon prescribed medication which he said would help prevent a miscarriage. She took 100 pills a month for six months until, on 14 November 1969, she gave birth to a daughter. Following the birth, she continued her regular annual gynecological examinations and thereafter gave birth to two other daughters on 27 July 1973), and on 14 October 1974). During each of these pregnancies she was cared for and treated by defendant-doctor, who also delivered the children. After the third child’s birth, at plaintiff's request, defendant-doctor performed a tubal ligation so that she would bear no more children. Plaintiff thereafter continued her regular annual gynecological examinations with defendant-doctor.

In November of 1978, plaintiff became concerned about a painful lump in her left breast. Defendant-doctor referred her to her family physician. The lump was found to be cancerous and, in December of 1978, plaintiff underwent a modified radical mastectomy of her left breast. After completion of her post-operative care, she returned for her annual visit to defendant-doctor’s office. Upon learning of her operation, he advised her to return twice yearly. Early in 1980, on one of her visits, plaintiff asked defendant-doctor whether the drug she had taken in 1969 was DES. He acknowledged that it was. According to a New York Injury Lawyer, in May of 1980, plaintiff began to develop severe back pain. In June of 1980, she had a positive bone scan, evidencing lesions in her thoracic spine. After 10 radiation treatments, she underwent a bilateral salpingo-oophorectomy (removal of both fallopian tubes and ovaries) for relief. By the fall of 1980, she began to experience new back pain. A bone scan administered in January of 1981 showed new areas of activity and lesions. Plaintiff is at present being treated for an estrogen related metastatic bone disease which has spread through her vertebrae to her right ribs and the right side of her skull.

Plaintiff and her husband hereafter commenced the instant action against defendant-doctor and the manufacturer and seller (defendant-company) of the DES which she took in 1969. A Staten Island Personal Injury Lawyer said the complaint stated three causes of action against each defendant: (1) on behalf of plaintiff, against defendant-doctor, alleging negligence and lack of informed consent; (2) on behalf of the husband, against defendant-doctor, alleging medical expenses and loss of services and society; (3) on behalf of plaintiff, against defendant-doctor, alleging negligent infliction of emotional distress (from fears that her 1st daughter would develop reproductive cancer as a result of her prenatal exposure to DES); (4) on behalf of plaintiff, against defendant-company, on a theory of strict products liability (defective product); (5) on behalf of the husband, against defendant-company, alleging medical expenses and loss of services and society; and (6) on behalf of plaintiff against defendant-company, alleging negligent infliction of emotional distress.

Defendants argue that the action is time barred on Statute of Limitation grounds; lack of merit; and failure to state a cause of action.

Were the plaintiff’s two subsequent pregnancies and her series of annual gynecological examinations constitute a continuous course of treatment sufficient to postpone the running of the Statute of Limitations?

The "continuous treatment" exception states that the time in which to bring a medical malpractice action is stayed "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint". The Court limited the doctrine to a continuous course of treatment related to the same original condition or complaint, for the same or related illness or injuries, continuing after the alleged acts of malpractice, but excluded those cases involving the mere continuity of a general physician-patient relationship. The rationale for the exception rests, in part, upon the principle that where a patient is being treated continuously for one condition, he or she should not have to interrupt that treatment in order to sue the physician; rather, the patient should be allowed to continue the treatment to its conclusio reposing trust and confidence in the physician, and the Statute of Limitations should not begin to run until that course of treatment has ended.

New York Courts have continued to elaborate upon the "continuous treatment" doctrine and held that a patient's yearly checkup appointments for mammographies amounted to a series of discrete individual "treatments" and therefore did not constitute a "continuous course of treatment" sufficient to delay the running of the Statute of Limitations. A Westchester County Personal Injury Lawyer said the Courts further held that a series of mail and telephone contacts regarding the scheduling of an appointment did not constitute "treatment"; a series of routine pediatric examinations did not constitute a "continuous course of treatment".

The "continuous treatment" exception would also not apply to a situation where a patient interrupted her treatment in disregard of her physician's advice and then, eight and one-half months later, after she was admitted to the hospital under treatment by other physicians, her original physician visited her there and signed her discharge summary as this constituted a resumption and not a continuation of treatment. On the other hand, the "continuous treatment" doctrine can be applied to a situation in which, after operating on a patient, a physician continued to care for and observe him during post-operative visits, advising him that he had been cured, and the patient, complaining of pain in the same area, thereafter continued to return for further visits until the original allegedly faulty diagnosis was finally discovered.
On the basis of the foregoing cases and the legislative codification of the holdings thereof, it is thus clear that the facts as alleged by plaintiff do not bring her within the purview of the "continuous treatment" exception to the Statute of Limitations in medical malpractice actions.

Did the defendants have a "continuing duty to warn" plaintiff regarding the dangers of DES, as those dangers became known, and that this duty delayed the running of the Statute of Limitations?

It must be noted that plaintiff took DES during only one period in 1969 and, once she ingested the medication, the "treatment" in question ceased and the Statute of Limitations began to run. Since plaintiff's allegations do not bring her within the purview of the "continuous treatment" exception, the Statute of Limitations began to run when the "treatment in question" ceased, that is, when plaintiff's 1st daughter was born on 14 November 1969, or shortly thereafter when postoperative care ceased, and expired well before the commencement of this action.
Can defendant-company be liable on the same basis as defendant-doctor?

Even if the herein court were to conclude that the "continuous treatment" exception was somehow applicable to defendant-doctor, it would not similarly make the action timely against defendant-company. Courts have extended the applicability of the "continuous treatment" doctrine to third parties not directly involved in the physician-patient relationship, such as consulting physicians, laboratories, and manufacturers, only under very limited circumstances.
The court held, in a landmark case, that a pathologist who misdiagnosed a biopsy specimen would be liable under the same "continuous treatment" theory as the primary physicians who treated the patient since during the course of their treatment they continued to rely on the pathologist's faulty diagnosis in assuring the patient that he did not have cancer. Thus, it was reasoned that his misdiagnosis was as much a part of the continuing malpractice as the physician's continued reassurances.

However, the Court of Appeals held, in another case, that a pathology laboratory would not be liable on a "continuous treatment" theory for its misdiagnosis of a cancerous biopsy specimen where its action consisted of a one-time analysis and it had no continuing relationship, of an agency or any other nature, with the primary physician who continued to treat plaintiff for the condition in question.

In another case, the court, applying New York law, held that the "continuous treatment" exception would apply to the manufacturer of an inflatable mammary prosthesis in a case where the "continuous course of treatment" in question involved the fitting and continuing adjustment of the prosthesis in the patient's body by the physician, since the device was an integral part of the treatment.

However, in another landmark case, in an action by a patient against both her physician and a manufacturer in connection with the continuing administration, over a period of years, of birth control pills, the Second Circuit Court of Appeals declined to follow the aforesaid ruling reasoning that it would rather await a ruling on the question by the New York Court of Appeals before finding a pill's manufacturer liable under a "continuous treatment" theory.

On the basis of the abovementioned cases, the court finds that there is no reading of the allegations present under which defendant-company’s role in the treatment of plaintiff can be said to have extended past the birth of plaintiff’s 1st daughter. Thus, as to it, the Statute of Limitations began to run at that time and plaintiff's action is untimely.

Is defendant-doctor estopped from raising the Statute of Limitations as a bar to plaintiff’s action because he knowingly concealed his malpractice from her and intentionally deceived her in order to prevent her from suing him?

On the facts as alleged, such contention is without basis.

The Court of Appeals has held in a number of cases that a defendant physician in a malpractice action might be equitably estopped from raising the Statute of Limitations as an affirmative defense where, through actual affirmative misrepresentations, he fraudulently concealed his malpractice from the patient by informing her that she was being cured (when in fact he knew this to be false), thereby causing her to continue her treatment with him in reliance on his advice and forego both seeking other treatment and suing him before the running of the Statute of Limitations. However, the court indicated that there had to be specific allegations of such fraudulent concealment in the complaint, or at least evidence in the record that might support such allegations, before the principle could be applied.

A reading of plaintiff's complaint and the papers submitted on the motions disclose no such allegation or evidence. It contains no allegation that defendant-doctor actually knowingly concealed his malpractice or made fraudulent misrepresentations to plaintiff. Similarly, although plaintiff's affidavit seeks to imply that defendant-doctor deliberately concealed from her the fact that he had given her DES in 1969 when she informed him of her breast cancer and subsequent mastectomy, the allegations in the record do not in any way indicate the kind of actual fraud necessary to create an equitable estoppel.

Was the complaint time-barred?

A cause of action for damages suffered as a result of exposure to a harmful substance accrues, the Statute of Limitations begins to run when the last exposure occurs, even though the actual injury (personal injury) may only become manifest many years later. In actions of negligence, damage is of the very gist and essence of the plaintiff's cause.

Although negligence may endanger the person or property of another, there is no actionable wrong is committed if the danger is averted. It is only the injury to person or property arising from negligence which constitutes an invasion of a personal right, protected by law, and, therefore, an actionable wrong. Through lack of care, a person may set in motion forces which touch the person or property of another only after a long interval of time; and then only through new, fortuitous conditions. There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose.

"That does not mean that the cause of action accrues only when the injured person knows or should know that the injury has occurred. The injury occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues. Except in cases of fraud where the statute expressly provides otherwise, the statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury. Consequential damages may flow later from an injury too slight to be noticed at the time it is inflicted. No new cause of action accrues when such consequential damages arise. So far as such consequential damages may be reasonably anticipated, they may be included in a recovery for the original injury, though even at the time of the trial they may not yet exist. When substantial damage may result from any wrong affecting the person or property of another, a cause of action for such wrong immediately accrues.

The leading case applicable to the case at bar held that: the injury to the plaintiff was complete when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust. For that injury, including all resulting damages the defendant was then liable. The disease of the lungs was a consequence of that injury. Its result might be delayed or, perhaps, even by good fortune averted; nevertheless, the disease resulted naturally, if not inevitably, from a condition created in the plaintiff's body through the defendant's alleged wrong. It cannot be doubted that the plaintiff might have begun an action against the defendant immediately after he inhaled the dust which caused the disease. No successful challenge could have been interposed on the ground that the action was prematurely brought because, at the time it was commenced, no serious damage to the plaintiff had yet developed. In that action the plaintiff could recover all damages which he could show had resulted or would result therefrom. In effect, the plaintiff is asking this court to hold that the statutory period of limitation begins only from the time that the plaintiff had reasonable assurance that serious damage had resulted or would result from past injury. The statute provides in unambiguous language that the period of limitation begins to run at the moment when right to begin an action accrues. The same test must be applied to a challenge that the action is stale as to a challenge that the action has been brought prematurely.

The Statute of Limitations is a statute of repose. At times, it may bar the assertion of a just claim. Then its application causes hardship. The Legislature has found that such occasional hardship is outweighed by the advantage of outlawing stale claims. The problem created by the slow onset of the disease of pneumoconiosis or silicosis has been considered by the courts of other jurisdictions. They have given to statutes of limitation their intended effect as statutes of repose and have held that a cause of action sounding in negligence accrues at the time when through lack of care by an employer, deleterious substances enter the lungs of an employee though the development of consequential damages may be long delayed.

In view of the above, the court is constrained to dismiss the complaint. The ingestion of a pill is analogous to the injection of a chemical substance or the inhalation of dust as to render this case legally indistinguishable from those cited. The law as it now stands--restated by a majority of our state's highest court but 20 months ago--mandates that the court decides the case against the weight of profound sympathy; and the apparent injustice that the doctrine brings.
If you have been injured as a result of a negligent act, consult with a lawyer immediately. Do not waste time for you might end up like the above mentioned case where you could lose your right to ask for compensation on the damages or injuries inflicted on you. Contact Stephen Bilkis & Associates for a free legal advice.

March 19, 2012

Court Decides Lawyer Malpractice Case

The Grievance Committee served the respondent with a petition, dated 20 November 2007 containing 10 charges of professional misconduct. After hearings in April 2008, the Special Referee sustained all 10 charges. The Grievance Committee now moves to confirm the Special Referee's report and impose such discipline as the Court deems appropriate. The respondent also moves to confirm the Special Referee's report, having admitted the 10 charges of the petition, and asks the Court to take mitigating evidence into account when determining the sanction.

The 1st , 2nd 3rd, 4th and 5th charges allege that the respondent converted to his own use funds entrusted to him as a fiduciary, incident to his practice of law, on behalf of his clients in violation of the Code of Professional Responsibility.

According to a New York Injury Lawyer, on the 1st charge, the respondent maintained a checking into which he deposited client funds and other funds entrusted to him as a fiduciary. On or about 26 October 2005, the respondent deposited the sum of $6,250 into his attorney escrow account on behalf of his client as the proceeds of a personal injury settlement (personal injuries may refer to broken bones, or as a result of car accidents or medical malpractice). A Suffolk Personal Injury Lawyer said that on or about 9 November 2005, the respondent drew a check in the amount of $4,083.34 payable to the order of his client as her share of the settlement. From approximately 26 October 2005 until approximately 9 November 2005, the respondent was required to maintain a balance of at least $4,083.34 in his attorney escrow account on the client’s behalf. By 28 October 2005, the balance in the respondent's attorney escrow account was depleted to $253.68.

On the 2nd charge, on or about 28 October 2005, the respondent deposited the sum of $6,500 into his attorney escrow account on behalf of his 2nd client as the proceeds of a personal injury settlement. On or about 20 November 2005, the respondent drew a check in the amount of $4,226.67 from his attorney escrow account payable to his 2nd client as her share of the settlement. From approximately 28 October 2005 until November 20, 2005, the respondent was required to maintain a balance of at least $4,226.67 in his escrow account on the 2nd client’s behalf. By 10 November 2005, the balance in the respondent's escrow account was depleted to $4,083.34.

On the 3rd charge, on or about 10 November 2005, the respondent deposited a check in the amount of $3,125 into his attorney escrow account on behalf of his 3rd client as the first proceeds of a personal injury settlement. On or about 21 November 2005, the respondent deposited a check in the amount of $7,500 into his attorney escrow account on the 3rd client’s behalf as the second portion of her personal injury settlement. A Long Island Personal Injury Lawyer said that on or about 1 February 2006, the respondent drew a check on his attorney escrow account in the amount of $6,337.75, payable to the order of his 3rd client as her share of that settlement. From approximately 21 November 2005 to 1 February 2006, the respondent was required to maintain a balance of at least $6,337.75 in his attorney escrow account on behalf of his 3rd client. By 27 December 2005, the balance was depleted to $2,798.33.

On the 4th charge, on or about 14 March 2006, the respondent deposited the balance of $25,000 into his attorney escrow account on behalf of his 4th client as the proceeds of a personal injury settlement. On or about 26 May 2006, he drew a check in the amount of $15,920.68 payable to the order of his 4th client as her share of that settlement. From approximately 14 March 2006 until 26 May 2006, the respondent was required to maintain a balance of at least $15,920.68 in his attorney escrow account on the 4th client’s behalf. By 23 March 2006, the balance in the respondent's attorney escrow account was depleted to $14,173.34.

On the 5th charge, on or about 11 May 2006, the respondent deposited a check in the amount of $8,000 into his attorney escrow account on behalf of his 5th client as the first portion of the proceeds of a personal injury settlement. On or about 25 May 2006, he deposited a check in the amount of $4,000 into that account on the 5th client’s behalf as the second portion of the personal injury settlement. On or about 14 July 2006, the respondent drew a check on his attorney escrow account in the amount of $6,907.82 payable to his 5th client as his share of that settlement. From approximately 25 May 2006 until 14 July 2006, the respondent was required to maintain at least $6,907.82 in his attorney escrow account on the 5th client’s behalf. By 21 June 2006, the balance was depleted to $6,711.27.

The 6th charge alleges that the respondent failed to safeguard funds entrusted to him as a fiduciary, incident to his practice of law, on behalf of his 6th client in violation of the Code of Professional Responsibility.

On or about 23 March 2006, the respondent received a check in the amount of $22,000 from his 6th client as payment for legal services provided. Inasmuch as the 6th client disputed the exact amount owed, the respondent agreed to hold that check in escrow pending resolution of the fee dispute. That check was not deposited into the respondent's attorney escrow account until approximately 18 September 2006.

The 7th charge seven alleges that the respondent paid himself legal fees for two personal injury matters before depositing the corresponding settlement checks into his attorney escrow account, in violation of the Code of Professional Responsibility.

On or about 28 October 2005, the respondent withdrew the sum of $6,000 from his attorney escrow account to pay himself legal fees for personal injury matters for three clients. However, he did not deposit the settlement checks for one of the three clients (3rd client) into his attorney escrow account until approximately 10 November 2005 and 21 November 2005. Between approximately 10 November 2005 and 20 December 2005, the respondent made four withdrawals from his attorney escrow account totaling $8,270.34 to pay himself legal fees for personal injury matters for four clients (8th client). The respondent did not deposit the settlement checks for another one of the four clients matter into his attorney escrow account until approximately 26 January 2006.

The 8th charge alleges that the respondent engaged in a pattern and practice of failing to promptly pay his clients the shares of the proceeds of the personal injury settlements to which they were entitled, in violation of the Code of Professional Responsibility.

On or about 28 October 2005, the respondent deposited the sum of $6,500 into his attorney escrow account on behalf of his 2nd client as the proceeds of a personal injury settlement. He failed to pay her share of the settlement ($4,226.67) until approximately 20 November 2005.
On or about 10 November 2005, the respondent deposited a check in the amount of $3,125 into his attorney escrow account on behalf of his 3rd client as the first proceeds of a personal injury settlement. On or about 21 November 2005, he deposited a check in the sum of $7,500 on behalf of his 3rd client as the second portion of the settlement proceeds. The respondent failed to pay his 3rd client her share of that settlement ($6,337.75) until approximately 1 February 2006.

On or about 27 March 2006, the respondent deposited the sum of $4,250 into his attorney escrow account on behalf of his 9th client as the proceeds of a personal injury settlement. The respondent failed to pay his 9th client his share of the settlement ($2,416.67) until approximately 15 May 2006.

On or about 11 May 2006, the respondent deposited the sum of $15,000 into his attorney escrow account on behalf of his 10th client as the proceeds of a personal injury settlement. The respondent failed to pay his 10th client her share of that settlement ($9,506.67) until approximately 20 July 2006.

On or about 18 July 2006, the respondent deposited the sum of $25,000 into his attorney escrow account on behalf of his 11th client as the proceeds of a personal injury settlement. The respondent failed to pay his 11th client her share of that settlement ($7,810) until on or about 2 October 2006.

The 9th charge alleges that the respondent failed to maintain the required bookkeeping records for his attorney trust account, in violation of the Code of Professional Responsibility.
The respondent failed to maintain records of all deposits into and withdrawals from his attorney trust account, showing the date, source, and description of each item deposited and the date, payee, and purpose of each withdrawal or disbursement. The respondent failed to maintain a ledger book or similar record for his attorney trust account, showing the source of all funds deposited into it, the names of all persons for whom those funds were held, the description and amounts of those funds, and the names of all persons to whom those funds were disbursed. The respondent failed to maintain the required checkbooks, check stubs, bank statements, prenumbered canceled checks, and duplicate deposit slips for his attorney trust account.
The 10th charge alleges that the respondent engaged in a pattern of failing to file closing statements with the Office of Court Administration (OCA), in violation of NYCRR and the Code of Professional Responsibility.

The respondent filed 143 retainer statements with OCA on behalf of his law firm between July 2001 and November 2006. However, he filed only 10 closing statements between July 2001 and 31 December 2002. Since 1 January 2003, the respondent did not file any closing statements.
Inasmuch as all of the factual allegations have been admitted and the respondent has joined in the Grievance Committee's motion to confirm, the Special Referee properly sustained all 10 charges and the Grievance Committee's motion to confirm the Special Referee's report is granted.

In determining an appropriate measure of discipline to impose, we note that the respondent has no prior disciplinary history. The court considers mitigating factors, as requested by the respondent, which are - the absence of economic harm to any client; his abandonment of the Quikbooks system in favor of personally reconciling his accounts with his banking statements; his excellent reputation in the legal community; his sincere remorse; and his full cooperation with the Grievance Committee. The respondent has admitted from the outset of the investigation that he unreasonably relied upon others to manage his accounts. He notes that the conversions were not motivated by venality. The respondent was unaware that his father, upon whom he relied to manage his account, had delegated that responsibility to his brother or that his brother suffered from a psychiatric disorder which prevented him from focusing on his accounting duties. The respondent belatedly discovered, to his detriment, that during his brother's management of his accounts, the Quikbooks entries had not been reconciled with bank statements. It became evident from continued communications with the Grievance Committee that the accounting errors went beyond the error which caused the subject check to be dishonored. Upon ascertaining that fact, the respondent instructed both his brother and his father to cease working on his accounts.

Thus, the respondent's misconduct warrants his suspension from the practice of law for a period of one year.

Be wary of lawyers just like the abovementioned case. If you have been injured by the negligence of another such as a medical malpractice action, or because of a car accident, contact us for guidance. At Stephen Bilkis & Associates, our highly trained attorneys are worthy of your trust. You can rely on us to provide you with what is due.

March 16, 2012

Plaintiff Sues for Injuries After Being Struck by a Vehicle

A man was hit by an automobile while crossing an intersection. It is acknowledged that there were traffic signals controlling the intersection where the car accident happened. Subsequently, the man initiated a personal injury action against the driver and the owner of the automobile that had struck him. The law firm was retained as the trial counsel. The attorney who represented the man is now his opponent.

During the liability phase of the injury trial, there was conflicting testimony as to whether the injured man was in the crosswalk of the intersection when he was struck by the opponent’s vehicle. With the request of the man’s attorney, the trial court notified the jury with the vehicle and traffic law. It stated that a pedestrian has the right of way when crossing on a crosswalk, but has a duty not to leave a curb or other place of safety and enter the path of a vehicle that when a vehicle is so close it is impractical for the driver to give way. A New York Injury Lawyer said that the law further states that it only applies when there is no controlling traffic signal at the intersection, which was not the case in the accident. At the conclusion of the liability phase of the trial, the jury returned a decision finding that the injured man and the driver of the automobile had 50% each at fault in the happening of the auto accident. Following the damages phase of the trial, the jury found that the man’s sustained damages for past and future pain and suffering, past and future lost earnings, and loss of services, at which was reduced by the liability distribution. After unsuccessfully moving to set aside the liability decision, the man appealed from the judgment in the legal action contending that the trial court had made a mistake in notifying the jury on the vehicle and traffic laws. Although the man had not properly maintained his claim, the court reached did in the exercise of the interest of justice jurisdiction, reversed the judgment and ordered a new trial on all issues. In reversing, the court explained that vehicle and traffic laws imposed different rights and duties on drivers and pedestrians, and that section 1111 rather than section 1151 should have been charged because the subject intersection was controlled by traffic signals.

Shortly after the judgment in the legal action was reversed, the man initiates the legal malpractice action against his attorney and the law firm. A Long Island Personal Injury Lawyer said the man alleges that they had committed malpractice by failing to object to the erroneous charge and failing to demand a charge on the vehicle and traffic laws. In the complaint, the man wanted to reimburse the legal expenses incurred in moving to set aside the liability decision and action against the appeal. He also wanted to reimburse the probable costs of the retaining expert witnesses for a new trial. Lastly, he sought damages on the theory that they had lost the value and use of the monies that would have been secured for the opponent’s malpractice.

A second trial in the legal action was conducted. At the conclusion of the liability phase of the second trial, the jury returned a decision finding that both the injured man and the automobile driver had been negligent, but that the injured man’s negligence was not a significant factor in causing the accident. Therefore, legal responsibility for the happening of the accident was given solely to the driver. A Westchester County Personal Injury Lawyer said before the jury decided on the issue of damages, the man and the driver reached an agreement to settle the legal action.

The man thereafter moved for judgment without trial in the instant legal malpractice action contending that due to his lawyer’s malpractice in requesting an incorrect vehicle and traffic law instruction, they would have received a different amount in damages at the conclusion of the first trial. The man therefore argued that they were entitled to approximately $190,000 in damages representing the interest that would have accrued on a $750,000 award if it had been received at the end of the first trial. Although the Supreme Court granted the man’s motion for judgment, it awarded the man’s damages in the principal sum of only $28,703.27, representing reimbursement for the legal fees and expenses incurred in moving to set aside the liability decision in the first personal injury trial, action against the appeal and trying the action for the second time.

The court ordered that the judgment is reversed. The man’s motion for judgment without proceeding is denied. Upon searching the record, judgment without proceeding is awarded to the attorney of the man and the attorney’s firm. The complaint is also dismissed and the order is modified accordingly. The court also ordered that the appeal from the judgment is dismissed as speculative. Lastly, the court ordered that a bill of costs is awarded to the attorney and the firm.

In medical practice, assessment is vital in giving the correct diagnosis, so thus in legal practice. Assessing the appropriate law suit is imperative to be able to represent the person in court properly. If you want to be certain on what action to pursue, ask for qualified lawyer at Stephen Bilkis and Associates.

February 11, 2012

Research suggests DOD medical policy malpractice, a New York Injury Lawyer says

Research into medical practices for Guantanamo detainees calls giving every detainee mefloquine, anti-malaria treatment, is malpractice. Medical experts with Seton Hall University studied the Defense Department’s policy on giving detainees large doses of the anti-malaria drug, a New York Injury Lawyer stated.

When every detainee is processed into the prison, they are administered 1,250 mg of mefloquine in two doses over a 12-hour period. Mefloquine is usually given as a lost restore to individuals who are known to have malaria. The prison does not conduct a blood test before giving the drug.

Mefloquine is known to have severe side effects including “anxiety, paranoia, hallucinations, aggression, psychotic behavior, mood changes, depression, memory impairment, convulsions, loss of coordination, suicidal ideation, and possibly suicide, particularly in patients with a history of mental illness,” the study stated.

A statement from a Defense Department representative stated that there have been only three cases of detainees coming to the facility with malaria symptoms. The facility has been in use since 2001. There are more than 700 prisoners at the facility.

Malaria is an extremely deadly disease that can kill in 48 hours. According to World Health Organization, around 1 million people died of malaria every year. The top three locations with high malaria dead rates are Africa, Southeast Asia, and the South Pacific. Cuba has no recorded malaria threats. Many the detainees are caught in these areas.

If you or one of your loved ones is being given unneeded prescriptions, or has been the victim of medical malpractice, call Stephen Bilkis and Associates to take on their case. Our office can help you through your legal proceedings, and ensure that your rights are protected. Come in for a free consultation today.

February 8, 2012

Dr. Mom Disagrees with Governor’s Proposed Malpractice Cap

As New York Governor Cuomo proposes legislation that seeks to limit pain and suffering awards to $250,000 in cases involving medical malpractice, there is at least one woman who disagrees with his proposal. This mom also happens to be a practicing physician, which gives her some rather unique perspectives that can only be understood by someone with experience from both sides of the issue. In this instance, the practicing doctor is also the mother of a 13-year old boy who is the victim of medical malpractice.

While her son’s award was awarded several years ago and is not subject to the governor’s proposed cap, she is aware of the day-to-day responsibilities in caring for someone who has been injured due to medical malpractice. A New York Injury Lawyer learned that her son must be attended full-time, as he is unable to walk or talk. His cerebral palsy was caused by medical negligence, which leaves the youth confined to a wheelchair and unable to go though any of the daily things that many people take for granted, such as eating, getting dressed, bathing, and even going to the toilet. Her son also needs a motorized wheelchair and a van with wheelchair access in order to travel anywhere.

Dr. Mom is also at least one physician who takes her responsibility seriously and recognizes there are times when the human factor becomes involved that specifies that we all make mistakes. As was also reported to a Nassau County Personal Injury Lawyer, that she and other physicians, must “live with the reality” that they may cause someone irreparable harm and that they will be sued. While the thought of a potential lawsuit sounds extremely unpleasant to her, her thoughts are also with the potential victim of any such errors. She is all too aware of this by her own experience.

Although the state budget must be brought into line with economic realities, at least one of the things that tend to be overlooked is the realities that victims of medical malpractice must endure daily and for the rest of their lives. They too face certain economic hardships and uncertain futures, and many must do so without the ability to seek gainful employment and must rely on the compassion of others just to survive each day.

The budget debate will likely continue, at least for a short time. All the while people like Dr. Mom will continue to raise their children who have been placed in harm’s way due to the negligence of someone else. When asked as to whether an award of $250,000 would have been sufficient to care for her son for the rest of his life, her reply was a simple, “Absolutely no way.”

February 6, 2012

Vermont House Wants a Study on Medical Malpractice

Recent reports from a New York City Injury Lawyer reveal lawmakers from the state of Vermont have considered asking the Shumlin administration in Vermont to come up with recommendations for correcting the medical malpractice system in the state with the main concern being they would like to lower the costs of healthcare in the state.

Medical malpractice investigations are very common. In debates over healthcare reform at both state and federal levels, the spotlight is put on the doctors and the medicine they are claimed to use to prevent lawsuits.

Members of the House Health Committee almost finished their completion of the work they have done on a bill that is supposed to put Vermont in the direction of single payer health care. They recently got a visit from the chairman of the Judiciary Committee with a suggestion calling for the medical malpractice study.

Healthcare has been a national issue for several years now as members of both national political parties have debated on whether healthcare reform is even possible, and if so they have to figure out the best way to do it. It has been in the news almost every day and much of the country has been up in arms regarding this issue. It has struck cords in everyone from the very rich who don’t want to pay more taxes to the middle class who can’t afford the rising costs in addition to almost everything else these days. Because the cost of healthcare is going up, the costs of prescription drugs have gone up considerably as well, mainly for senior citizens who need more drugs and are more likely to be on a fixed income.

One of the issues the study would spend a significant amount of time addressing is the cost of defensive medicine and one of the main points is to find a way to lower the costs of medicine while at the same time protecting patients.

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February 2, 2012

FL Appeals Court Gives Green Light to Staph Suit

On Wednesday, the Florida 4th District Court of Appeals overturned an earlier decision by a Circuit Court judge thereby allowing a lawsuit that was filed in 2005, a New York Injury Lawyer has learned. As part of that decision, the appeals court ruled that the lower court had erred when it dismissed a negligence lawsuit in 2009.

The suit alleges that the plaintiff had entered the hospital in May 2002 seeking to have a broken ankle surgically repaired.. During her stay at the hospital, she acquired methicillin-resistant staphylococcus aureus, which is more commonly referred to as MRSA. The staff infection reportedly caused the plaintiff injury and complications.

MRSA is caused by a strain of staph bacteria, which has become resistant to the types of antibiotics that are normally used to treat staph infections. A NY Injury Lawyer found that MRSA commonly occurs in places such as hospitals, prisons, nursing homes, and dialysis centers. Any place that people have frequent skin contact is considered a possible place to acquire MRSA.

Although the original plaintiff in the case that the appellate court ruled on died in 2009, her husband has continued with the lawsuit. It should be stated at this point that while the woman did develop complications from her acquisition of MRSA at the hospital in 2002, her death was unrelated to MRSA.

The ruling on this case has paved the way for about 17 additional cases that have been pending the outcome of this decision. The widower’s attorney went on to say that the trial judge had dealt a big blow to every case that was awaiting trial for hospital acquired MRSA that had been filed either at the same time as this case, or during the time span since. These cases can all proceed to trial now, and those parties concerned can now have their day in court.

Suffice it to say that the hospital that was named in the case was disappointed with the appellate court’s ruling, and they would simply say that their legal teams are moving forward as the pending lawsuits make their way through the judicial process.

If you have been the victim of the negligence of another, including medical malpractice, a construction accident, or a defective product, it is important to speak to legal counsel as soon as possible. You may be entitled to compensation for your injuries, which can include not only medical expenses, but also compensation for pain and suffering, as well as lost income from work.

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February 1, 2012

Many State Medical Boards Leave Bad Doctors Undisciplined

By means of a recent report that was issued Tuesday, a New York Injury Attorney learned that at least part of the reason for rogue doctors being allowed to continue practicing medicine after having established a negative history is that state medical boards are not disciplining them. They are not disciplining them even after both hospitals and in many instances, the legal system have established histories of negligence and malpractice.

State medical boards are charged with the responsibility of licensing and also with the disciplining of doctors, dentists, and some other medical professionals. The problem it seems, is that once rogue doctors have been disciplined and in some cases restricted and fired from a hospital, the state medical boards are lax in disciplining them. The report that was prepared by Public Citizen, which is a nonprofit consumer advocacy group, further states that Florida’s proportion of undisciplined doctors was higher than the national average.

The group acquired the data used in the report from the National Practitioner Data Bank that was established as a way to track those doctors who were either barred, or restricted. Hospitals, state licensing boards, and professional societies are required to report any activity involving doctors whose privileges to practice at a hospital have been suspended or revoked, or whose license has been suspended or restricted. The reporting requirement is also inclusive of any issues with the doctor’s professional conduct or competence.

There have been relatively few doctors that have been disciplined over the past 20 years, the NYC Personal Injury Lawyer was told. Of the 10,000 doctors that have been disciplined during that time, only 5,800 of them were actually discharged from their duties at a hospital. The report goes on to add that in most cases the state medical boards took no action against the problematic doctors, and that most of them continue to practice medicine.

While the report lists a few examples of problem doctors, there is one that is troublesome. One such doctor, who was never disciplined by the state medical board, had at least 10 medical malpractice reports over a 14-year period that totaled more than $7 million in damages.

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January 31, 2012

New York State Senator Wants to Increase Malpractice Lawyer Compensation

A New York State senator wants to pass a bill that would increase the percentage malpractice lawyers can receive for taking on medical malpractice lawsuits. Currently, lawyers can earn up to 30% of the first $250,000, 25% on the next $250,000 and 10% on settlements totaling more than $1.25 million. The state of New York is trying to place a cap of $250,000 on malpractice settlements, points out a New York Injury Lawyer. The senator, also a malpractice lawyer, said he opposes any type of cap.

Many states are trying to place limits on the amount of money those filing malpractice lawsuits can claim to reduce medical insurance costs and protect those in the medical community. High amounts sought in medical malpractice cases have driven some medical personnel to stop practicing or open a practice in a state with caps already in place. Capping the amount of those filing malpractice lawsuits may or may not stop the increase of medical insurance costs for medical personnel and patients.

The senator wants to increase the percentage lawyers can receive from a settlement to 33% by repealing an old law currently in use. While his efforts may or may not be successful, making changes to how much lawyers can charge for representing their clients and how much people can sue for medical malpractice will continue to be an ongoing debate.

Malpractice lawsuits cover a variety of items including medical error, database error, failure to alert patients as to the risks of certain procedures, botched procedures, lost wages, emotional stress and permanent injury which render patients unable to work and support themselves, explained a NY Personal Injury Lawyer. Placing a cap on malpractice lawsuits may prevent those who have been injured from receiving the monetary compensation they deserve. The state senate will continue to debate this issue and the issue of lawyer compensation until a final decision is reached. In the meantime, those who have lawsuits pending may be able to settle out-of-court for the full amount they are suing for or some other amount that seems reasonable for all parties involved.

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January 26, 2012

Surgeons May Order Unnecessary Tests and Scans to Protect Themselves if Sued Later on

A recent study of orthopedic surgeons suggests that many order unnecessary MRI's, bone scans, x-rays and other tests to protect themselves in the event of a lawsuit. The study, which was conducted on a volunteer basis, compiled anonymous responses from members of the Pennsylvania Orthopaedic Society. A New York Injury Lawyer states that these responses demonstrate an overwhelming number of surgeons order tests on patients that are not essential to their care. These tests are expensive and increase the cost of health care for patients and health care centers each year.

The study claims that surgeons with at least 15 years of experience or those who have been sued in the past five years are most likely to order unnecessary tests. If sued, surgeons can better defend themselves by producing these test results, especially if sued for medical malpractice This is the first study published that relied mostly on responses submitted anonymously. Other studies have compiled outside data such as percentage of lawsuits, number of tests ordered per year and the concentration of surgeons in one area.

This information is valuable not only to surgeons and hospitals, but also to insurance companies and patients. Before agreeing to a test, patients may need to be more diligent in asking their physician why the test is necessary in the first place, a Nassau County Personal Injury Lawyer advises. As healthcare costs continue to rise, many insurance companies may be reluctant to pay for certain tests. This cost may fall on the patient's shoulders instead.

It is unclear if further studies relying on anonymous replies from surgeons in other medical societies will be conducted. While it is worth investigating how many surgeons use these tests to defend themselves from lawsuits, many still use these tests to help treat patients. Questioning why tests are conducted may limit patient care. And while some cite the rising costs of malpractice lawsuits as the reason for the rise in healthcare costs, others agree the quality care comes at a price. Further studies may need to be conducted to determine if surgeons from different regions order unnecessary tests and if this varies from region to region.

If you have been a victim of medical malpractice, or have been injured in an accident, it is important to speak with legal counsel promptly. You may be entitled to compensation for your injuries, including reimbursement for medical expenses, loss of income, as well as pain and suffering. It is important to not delay, because there are strict time deadlines for filing certain types of claims. If these deadlines are missed, you will permanently lose your right to file your case.

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January 4, 2012

Napa Woman Wins Malpractice Suit

A woman living in Napa has won her malpractice suit against a surgeon, says a rep. The woman sued the surgeon who removed her gallbladder two years earlier and who had a mishap while in surgery. The resulting mishap led her to have to have more surgeries and suffer through more pain as a result.

The woman was rushed to an ER after she had severe abdominal pain. Once doctors saw her, they decided to remove her gallbladder because it contained a gallstone and thickened walls. A board certified doctor was scheduled to perform the surgery, according to the report. When the doctor was removing her gallbladder, he mistakenly cut a duct that is in the abdomen, next to the gallbladder. Since the duct was cut, that needed to be repaired as well. Then the woman also had to have more surgeries to correct problems that stemmed from the duct incident.

Hospitals in New York City and in Queens try to prevent this from happening.

A source stated that the woman was awarded $250,000 total. That award included money for past medical expenses associated with other surgeries and then an amount for her pain and suffering. The woman also had to miss work and get help to care for her four young children while she was recovering and getting more medical treatment. The woman has now recovered but her lawyer says her recovery would have been much shorter if the surgeon had not made the mistake in the first place.

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