Articles Posted in Manhattan

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In a birth injury case, the court examines whether the actions of a volunteer midwife fall under the “Good Samaritan” rule, and as a result, the defendant should be granted summary judgement.

The plaintiff Lacy, who was carrying twins, opted for a home birth instead of giving birth at a hospital. She wanted to be assisted by a midwife and nurses. She hired defendant Delettera, a midwife, to assist with homebirth. Defendant Delettera invited defendant Chachere to assist with the process. On June 24, 2004, plaintiff had a sonogram which indicated a deceleration in the heartbeat of one of the twins. After following up at Stony Brook University Hospital, the hospital determined that the baby’s heartbeat had stabilized. The plaintiff then indicated that she wanted to give birth at Nassau University Medical Center. She requested that defendant Delettera assist, but Delettera did not have birthing credentials there. The plaintiff was told that if she wanted to deliver her baby at Nassau, it would have to be under the care of a doctor. The plaintiff refused and decided to give birth at home. On July 1, 2004, the plaintiff gave birth at home and one of the babies was stillborn. The plaintiff filed a medical malpractice lawsuit against a number of defendants, including Delettera, Delettera’s company, and Chachere.

Chachere filed a motion for summary judgement, arguing that she was merely a lay student observer, and that the claim against her should be dismissed. Chachere claimed that her role was restricted to observing, taking pictures, making chart entries, and injecting Pitocin at the direction of defendant Delettera. Therefore, she argued, there was no connection between her presence and the harm to the plaintiff because she did not assist in the actual birth and had no contact with the mother or the deceased child. In support of her motion for summary judgement, defendant Chachere submitted an affidavit of a board-certified maternal-fetal physician. His opinion was that the baby’s death was due to the failure of the nurse/midwife to document the fetal heart rate during the home birth. He also asserted that because Chachere had no role in the pre-natal or post-natal care of the mother or the twins, the baby’s death cannot be attributed to any of her actions.

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Plaintiff Dolnick filed a personal injury lawsuit against defendant bookstore Borders Group for an injury suffered by his father at the Borders location in Columbus Circle. The defendant moved for summary judgement to dismiss the case because the victim had passed away, and the plaintiff had not witnessed the accident. The court had to determine if the defendant met its burden of showing that the plaintiff’s claim has no merit.

In May 2004, plaintiff’s father fell in the defendant’s bookstore, and as a result suffered an open ankle fracture. The following year, in March 2005, the injured victim died from an unrelated cause. The plaintiff, who is the administrator of the estate of his deceased father, initiated the personal injury lawsuit against defendant Borders after his father’s death. The defendant filed a motion for summary judgement dismissing the claim.

When a defendant files a motion for summary judgement dismissing a claim, the defendant has the burden of presenting a prima facie case that it did not cause the hazard that resulted in the victim’s injury and that it did not have real or constructive knowledge of the hazardous condition. Once the defendant establishes a prima facie case, the burden shifts to the plaintiff.

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In this case the court considers whether a hospital’s failure to notify the next of kin can be the basis for a personal injury lawsuit for emotional distress.  Under New York law a decedent’s next-of-kin has the right to “immediate” possession of the decedent’s body. This means that a hospital, for example, must make reasonable efforts to notify the next of kin.  If someone interferes with the next of kin’s right, then he or she would be entitled to damages from that person or entity that interfered because of the mental suffering caused by the improper handling of the decedent’s remains.

In early January in 2004, the New York City Fire Department EMS found Coto, the brother of the plaintiff. He was rushed to defendant Mary Immaculate Hospital.  When he arrived, he was unable to give hospital staff any information about his next of kin because he was unresponsive.  The next day Coto died.  Hospital staff went through Coto’s possessions but did not find anything other than his clothing and a watch.  They were not immediately able to determine his name or any other information.  Because the hospital was not able to determine the identity of Coto and was unable to notify his next of kin, a nurse from the hospital notified the police department to determine and contact the next of kin.

Meanwhile, following protocol, because Coto died within a day of arriving at the hospital, the hospital notified the medical examiner’s office. Coto was transferred to the medical examiner’s office, and the hospital advised the medical examiner that it was not able to determine Coto’s identify or notify his next of kin.

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In a medical malpractice claim, both the plaintiff and the defendants moved for a Frye hearing regarding the anticipated testimony of the expert witnesses. In the alternative, the defendants ask the court to dismiss the plaintiff’s action, and the plaintiffs ask the court to preclude the testimony of the defendants’ experts.

Established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the purpose of a Frye hearing is to determine the admissibility of scientific evidence. Opponents of scientific evidence that the opposing party wants to submit typically object to it as unsupported by published articles or prevailing medical or scientific thought. During a Frye hearing it is up to the court to determine if the testimony was developed based on accepted on scientific methods.

In Fernandez v. St. John’s Queens Hospital, the infant plaintiff was born prematurely on April 29, 1991 at St. John’s Hospital in Queens. She was discharged on July 10, 1991. After discharge, defendant Pavlakis, a pediatric neurologist and defendant Miguez, a pediatrician, began to treat her. In October 1991, Pavlakis diagnosed the plaintiff with progressive obstructive hydrocephalus and placed a shunt to remove fluid around the brain. It was determined that the plaintiff had suffered brain damage. She has spastic quadriplegia, severe mental retardation, and suffers from seizures. She was admitted to New York Foundling Hospital.

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This case is being heard in the Supreme Court of the State of New York in New York County. The case involves the matter of an Application of MVAIC to vacate an Arbitration Award. MVAIC is the petitioner of the case. The respondents in the case are Geico Insurance Company, New York City East-West Acupuncture, and PC A/A/O Chun Hong Li. The Judge overseeing the case is Joan B. Lobis.

Case

The petitioner, MVAIC or Motor Vehicle Accident Indemnification Corporation, moves for an order to vacate an order that was awarded by the Lower Arbitrator and affirmed by the Master Arbitrator. The petitioner seeks an entry of judgment on their behalf that dismisses the case with prejudice. The respondents are currently in default as they have not submitted any opposition papers in this case.

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Cases of personal injury involve certain subtleties of the law that must be met in order for the complainant to have a case against the building or facility where the injury occurred. First of all, there must be an injury. A New York Injury Lawyer said if a complainant files a complaint against a company because they fell, they must show that they were injured in some way by that fall. They must also be able to show that the building owner or manager had prior knowledge that a hazardous situation existed at that location at a time prior to the accident for them to have taken steps to prevent the accident from happening. In most cases, some evidence that there was a defect or hazardous situation that most of the people who used that area were aware of and that they had complained to the building management about usually proves this portion of the law. That proof is provided by the complainant in most cases in the form of incident reports, memos, emails, or other evidence that may show that the hazard was there and that the property management knew that it was there, but had not taken steps to repair it.

In one case, which occurred at 200 Park Avenue in Manhattan, one of the janitors was responsible for mopping the floor of the lobby where a woman slipped on some spilled liquid on the floor of the lobby (skip and fall). She was injured and treated. She then filed suit against the building management because she claims that they were liable for the situation. She claimed that the floor cleaning rotation was not notated in reference to how often or even when the lobby would be checked for spills or other debris. Since there was no one responsible for checking the floors, she contends that her accident was the responsibility of the building maintenance department.

The building management filed a motion in Queens County Civil Court for summary judgment to dismiss the complaint and all other claims against them in this case because they felt that the complainant had not made a case that they had been notified of a problem prior to the accident. The Civil Court denied their motion and they filed an appeal in the Supreme Court of New York, Second Department. A Manhattan Personal Injury Lawyer said the appeal was reviewed, and decided on February 28, 2007. The Supreme Court determined that the building management had failed to show that they should get a summary judgment on the case since there were no records presented that demonstrated a process by which the lobby floor was checked or monitored for hazardous situations. The Supreme Court clearly felt that this was a triable issue of fact in that they upheld the decision of the Civil Court and denied the summary motion request of the property management.

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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.

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On 1 January 2006 at approximately 5:30 pm at the defendant’s home, a slip and fallaccident on a stairs has occurred. Thus, a personal injury action arose.

The plaintiff is the father of the defendant and on the date of the incident the plaintiff was watching the defendants’ children.

Motion by defendants for an Order granting summary judgment in favor of the defendants, dismissing plaintiff’s complaint, on the basis that plaintiff has failed to establish a prima facie cause of negligence as and against said defendants, is determined as hereinafter provided.

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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.

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On April 30, 2007 at about 9:15 in the evening, a woman was doing her grocery shopping at the market located at 1050 Willis Avenue, Albertson, New York. She was browsing the fruit and vegetables in the produce section when the vegetable misting machine came on. The misting units were improperly calibrated causing them to spray water out onto the floor of the aisle where the woman was walking. She slipped on the water in the aisle and her foot hit a bunched up area of the mat that was set up to eliminate the risk of wet floor slippage. Because the mat was bunched up, the wet floor was not covered. According to the woman, that was the proximate cause of her slip and fallinjury.

The supermarket owner claimed that the manager had just walked through the produce aisle moments before the woman was injured and did not notice any water or a bunched up mat. The injured woman claimed that the slip into the bunched up mat caused her foot to become stuck in the mat when she fell exacerbating her injury. The market owner denies the allegations. The woman testified that she had been in the produce department for about ten to fifteen minutes and that she had walked past that area herself and not noticed the water or the carpet. It was not until she remembered that she had forgotten something and returned to the area around the snap peas that she slipped and her foot got stuck in the mat.

The market owner contends that the manager had checked the area moments prior to the accident and had not seen any hazard. The woman had been in the area of the accident for fifteen minutes prior to her accident and did not report any hazard to the store. The manager contends that they were never notified that there was a hazardous condition and were therefore unable to prevent the injury that occurred. A New York Injury Lawyer said the manager who is specifically assigned to the produce section testified that he has worked in that area for several years and that he has never seen the vegetable misters dampen the mats. He stated that he has never seen the mats bunch up either. He also testified that he has never received a complaint of mats bunching or water pooling on the floor.

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