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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 malpracticeclaim 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.

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