Long Island

Published on: April 1, 2012

Drug Given During Pregnancy Results in Severe Birth Defects, NY Appellate Court Denies Defendant’s Motion to Dismiss

by Stephen Bilkis

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.

Published on: March 28, 2012

Plaintiff’s Lead Exposure Case Denied Due to Statute of Limitations Issue

by Stephen Bilkis

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.

Published on: March 24, 2012

New York Appellate Court Upholds Dismissal of Plaintiffs Birth Injury Claim

by Stephen Bilkis

A woman who was pregnant first saw an obstetrician on January 2, 2004 for prenatal care. Two ultrasounds were performed on February 25, 2004 and again on April 21, 2004. These ultrasounds showed that the baby was growing normally. The third ultrasound on June 30, 2004 showed that the growth rate of the fetus was not the same. The ratio of the size of the head with the girth of the child around the abdomen was not within normal range.

On July 4, 2004, the mother’s water broke. She had a normal labor. She was hooked up to a fetal monitor and no signs of fetal distress were noted. While she was in labor, the umbilical cord of her baby was noted to be squeezed. The doctor ordered an emergency cesarean section.

A New York Injury Lawyer said when the baby was born, it cried spontaneously. His Apgar scores were normal. A sample of the blood from the umbilical cord showed that the gases in the blood were normal.

Published on: March 22, 2012

New York Appellate Court Hears Medical Malpractice Case for Abortion Proceedure

by Stephen Bilkis

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.

Published on: March 20, 2012

Court Decides Case Regarding Medical Malpractice for Failure to Diagnose

by Stephen Bilkis

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 malpracticeconnected 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.

Published on: March 20, 2012

New York Appellate Court Denies Late Notice of Claim in Birth Injury Case

by Stephen Bilkis

Infant plaintiff alleges that he sustained injury due to respondent’s medical malpractice. The injury was in connection with his birth, pre-natal and post-natal up to his discharge. He sustained perinatal asphyxia, which manifested as a cognitive developmental delays, coordination difficulties, seizures, hyperactivity, and mental retardation.

According to General Municipal Law, for him to commence an action based on torts against a municipality or public corporation he must serve first a notice of claim upon the municipality or public entity within 90 days after the claim arises. But the notice of claim was served upon defendant Hospital for almost nine years past the ninety-day deadline for the filing of a notice of claim.

Under the same law, according to a New York Injury Lawyer, the court is given the discretion to allow the filing of a late notice of claim within the period of limitation for commencing tort actions against municipality provided that the action must commenced within one year and ninety days after the date plaintiff’s cause of action accrued.

Published on: March 13, 2012

Plaintiff files for Slip and Fall at Construction Site, NY Appellate Court Says Insurance Company Obligated to Cover Accident

by Stephen Bilkis

A school district was constructing a new school building. It hired a construction manager and it also hired a general contractor for the school building project. The school district and the construction manager procured an insurance to indemnify them from any claim of damages for injuries sustained in the construction project.

The general contractor hired a sub-contractor to do structural steelwork on the project. A New York Injury Lawyer said the general contractor required the steel subcontractor to obtain a general commercial liability insurance that had a $1 million occurrence limit. The steel subcontractor, the general contractor and the school district (as project owner) were named as additional injured.

On January 19, 2006, an employee of the steel subcontractor slipped and fell from a wet deck on the second floor of the building project. He landed on the first floor and was seriously injured.

Published on: March 13, 2012

Victim Suffering Brain Injury Requests Guardian, NY Appellate Court Agrees

by Stephen Bilkis

A 32-year old resident of New York was involved in an accident on Hudson Street in New York County on 12 April 2000 while he was working and fell off (slip & fall or trip & fall) a scaffold (scaffold accident or construction accident). He hit his head when he fell and suffered a brain injury. The person has a lawsuit currently pending in Bronx County. He stated that he wants a guardian to help him because he has memory problems and he needs someone to make decisions for him. The person further stated that he has attention and concentration problems, anger issues, depression and suicidal thoughts. He takes medication for his various ailments.

As a result of his limitations, the person wishes to have a guardian appointed for his property. A self-petition has been filed for the appointment of a guardian of the property of an alleged incapacitated person (hereinafter known as “the person”) where he nominated someone whom he met at his personal injury attorney’s office.

The issue is whether or not the guardianship appointment was proper and that the person appointed is acceptable.

Published on: March 9, 2012

New York Appellate Court Decides Liability of Waste Disposal Plant

by Stephen Bilkis

The County of Columbia in New York established a solid waste disposal plant in the town of Claverack in 1981. To protect itself, the County procured comprehensive and general liability insurance policy. The insurers claimed in its advertising that it would pay all sums which the insured shall be legally obligated to pay as damages because of bodily injury or property damage. Every insurance policy excluded from coverage those bodily injuries and property damage sustained from pollution or arising from the discharge, dispersal, release or escape of waste materials, contaminants and pollutants on land, atmosphere and water unless the discharge was sudden and accidental.

In 1986, the solid waste disposal system was charged with violations of the Environmental Conservation Law for it was found that liquid waste was leaching onto the soil and seeping into the groundwater which was the source of drinking water for the town of Claverack. A fine was assessed against the Town of Claverack but the payment of the fine was suspended on condition that the Town close down the solid waste disposal facility. It was closed in December 1988.

A New York Injury Lawyer said however, the County however, continued using the facility despite the order of the Town to close the solid waste disposal plant. The Town of Claverack sued the County. A hunting club that owned the land next to the solid waste disposal plant also sued the County in January 1989 for impairment of the soil, air, ground and surface water. The hunting club also alleged that the County’s continued use of the facilities was a continuing nuisance, a continuing trespass and that its activities in using the plant has caused the eviction of the hunting club from its premises.

Published on: March 3, 2012

New York Appellate Court Rules on Trip and Fall in Manhattan Building

by Stephen Bilkis

A woman claims she sustained personal Injuries including a fracture, when she tripped and fell in a building in Manhattan where she lived. The woman retained a law firm to commence a law suit against the woman’s landlord, the property owner. The law firm commenced the action by filing the summons and complaint, which were shortly thereafter served on the property owner. The personal injury action was eventually dismissed for failure to prosecute. A subsequent motion to restore the action was filed by the second law firm and was denied.

The woman thought her case was active and ongoing. A New York Injury Lawyer said that she contends that none of the attorneys contacted her or told her otherwise. In May 2008, her daughter became concerned about her mother’s personal injury case and filed a disciplinary complaint against the first law firm on her mother’s behalf. The letter refers to the law firm and states that the daughter had called them numerous times. She indicates in her complaint that the file has been with the firm since 1998. The daughter states further that she appeared in court with her mother four years ago and the Judge ordered medical records and the case was adjourned to another date which never came. No one has been in touch since. She further states that the last time she called she was told that the case was old and no one could locate the file.

Although the disciplinary complaint was issued against the first law firm, by a letter by the second law firm states that the first law firm had been dissolved in 2002. The answer states that the woman was the client of a particular attorney while he was with the first law firm but that he left the firm to start the second firm in July 2008 and then another law firm later on.