Manhattan

Published on: April 21, 2012

Plaintiff Seeks Summary Judgement from NY Appellate Court in Birth Injury Case

by Stephen Bilkis

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.

Published on: April 21, 2012

New York Appellate Court Decides Premises Liability Issue

by Stephen Bilkis

The plaintiff is the case is Marcia Spalma. The defendants in the case are the Lawrence Towers Apartments, LLC, and AMA, Inc.

About the Case

The defendants/movants in the case, Lawrence Towers Apartments LLC and AMA, Inc., move for a summary judgment to dismiss the complaint made against them by the plaintiff. Alternatively, a Manhattan Personal Injury Lawyer said the defendants/movants seek the case’s dismissal because allegedly the plaintiff released the defendants from liability from the personal injuries that she sustained. Additionally, the defendants/movants seek the case to be dismissed because the injuries obtained by the plaintiff were not caused by a toxic substance or mold. The defendants/movants seek a hearing based on the case of Frye versus the United States in order to contest the scientific basis of the cause of her alleged injuries.

Published on: April 20, 2012

Plaintiff Claims Amniocentisis Caused Child’s Death, New York Court Dismisses Complaint

by Stephen Bilkis

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.

Published on: April 19, 2012

Defendant Contends Patient-Doctor Confidentiality was Breached, Court Disagrees

by Stephen Bilkis

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.

Published on: April 12, 2012

Defendants Seek Summary Judgement in Slip and Fall Case, New York Appellate Court Agrees

by Stephen Bilkis

Kings County Personal Injury 122

The plaintiff in this case is Andrzej Drozdzal. The defendants in the case are Suzanne and Ruth Semel and Spoon Incorporated. The judge overseeing the case is Laura Lee Jacobson.

About the Case

Published on: April 9, 2012

New York Court Hears Medical Malpractice Claim Based on Birth Injury

by Stephen Bilkis

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.

Published on: April 6, 2012

New York Appellate Court Grants Summary Judgment for Defendant in Construction Accident Case

by Stephen Bilkis

The plaintiff in the case is Bierzo Construction Corporation, LLC. The Defendant in the case is The Everest National Insurance Company. The third party plaintiff in the case is The Everest National Insurance Company and the third party defendants are Port-Land Construction Corporation and Utica First Insurance Company.

Case History

A New York Injury Lawyer explained that this is an insurance action, which comes from the underlying action from a fatal accident that occurred on October 7, 2006. The fatal accident occurred at a construction site when Erasmo Sanchez Lopez was struck by a brick while working at the site.

Published on: April 2, 2012

New York Appellate Court Hears Uninsured Motorist Claim, Affirms Judgment

by Stephen Bilkis

The respondent in the case is the Allstate Insurance Company. According to a Long Island Personal Injury Lawyer, the respondent is represented by Charles F. Brady for counsel, from the Benjamin Purvin law firm located in Lake Success. The appellant in the case is Carlos Casanova. The appellant is represented by Kenneth Popper for counsel, from the Joseph Greene law firm located in Rego Park.

The case is being heard in the Second Department of the Supreme Court in the Appellate Division. The judges overseeing the case are Kunzeman, J.P., Weinstein, Kooper, and Balletta, JJ.

Court Memorandum

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 25, 2012

Plaintiff’s Request for Leave to Follow Late Claim is Denied by New York Appellate Court

by Stephen Bilkis

A mother and her son claim for medical malpractice against a hospital. The action arises when the mother delivered her son and alleges that the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of her labor and delivery. Even if the infant was transferred to another hospital for almost two weeks, he was then transferred back to the opponents’ hospital where he remained. Subsequently, the newborn was treated at the opponents’ hospital. It is further alleged that the newborn suffers from brain injury and severe developmental delays.

At the beginning, the court lacks of authority to grant leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the action.

In determining whether to allow a late filing, a New York Injury Lawyer said the court must consider various factors which includes whether the petitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or reasonable time thereafter, and whether the delay would considerably prejudice the public corporation in defending on the merits.