New York City

Published on: July 1, 2012

NY Appellate Court Decides if Parent Exercised Impaired Judgment

by Stephen Bilkis

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.

Published on: June 30, 2012

Loss of a one-week pregnancy is considered a “serious injury” under New York insurance law – McKendry v. Thornberry, 872 N.Y.S.2d 658 (N.Y. Sup. Ct., 2009)

by Stephen Bilkis

The issue in this car accident case is whether, under New York’s insurance law, the plaintiff suffered a “serious injury” when she lost her 1-week old pregnancy as result of the car accident. Under New York Insurance Law § 5104, in order to recover for pain and suffering in a personal injury lawsuit, the plaintiff must have suffered a serious personal injury. Examples of injuries that are deemed serious include an injury that results in death, dismemberment, disfigurement, loss of the use of a body organ, or loss of a fetus.

In December 2002, the plaintiff and the defendant were involved in a car accident in Troy, New York. As a result, the plaintiff filed a personal injury claim against the defendant, stating the serious injury she suffered was the loss of her unborn child. In response, the defendant filed a motion for summary judgement dismissal based on 2 issues: 1). The loss of a 1-week pregnancy is not a serious injury; or 2). The plaintiff’s miscarriage was not caused by the car accident.

Defendant’s argument that the plaintiff’s miscarriage was not caused by the car accident is based on the plaintiff’s own deposition testimony that she was told by a physician’s assistant that her miscarriage was not caused by the car accident. In addition, the defendant submitted a report from a doctor who asserted that his medical opinion was that the car accident did not lead to the plaintiff’s miscarriage. Despite what she stated in her deposition, the plaintiff also submitted an affidavit of her treating doctor who maintains that the plaintiff’s miscarriage was indeed caused by the car accident. Thus, the plaintiff argues, there is a triable question of fact.

Published on: June 29, 2012

Case Involves Medical Indemnity Fund for Medical Malpractice Case

by Stephen Bilkis

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

Published on: June 28, 2012

Court Discusses Release of Confidential Medical Records

by Stephen Bilkis

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

Published on: June 27, 2012

Plaintiff moves for a Frye hearing in medical malpractice action – Fernandez v. St. John’s Queens Hospital, 2007 NY Slip Op 31604(U) (N.Y. Sup. Ct. 6/11/2007)

by Stephen Bilkis

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.

Published on: June 26, 2012

NY Appellate Court Hears Allegations of Neglect, Judgement for Defendant in Child Neglect Case

by Stephen Bilkis

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

Published on: June 25, 2012

NY Appellate Court Confirms Improper Care of Infant, Judgement for the Plaintiff

by Stephen Bilkis

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

Published on: June 24, 2012

Request for Summary Judgment Denied in Medical Malpractice Case – Peterson v. Andrew Garber, M.D., 2007 NY Slip Op 32866(U) (N.Y. Sup. Ct. 9/6/2007)

by Stephen Bilkis

In this medical malpractice case, the court must decide whether the plaintiff’s expert testimony was sufficient to rebut the defendant’s expert’s testimony which established a prima facie showing supporting the defendant’s motion for summary judgment dismissal.

Plaintiff Peterson filed a medical malpractice lawsuit against defendant Dr. Garber. In her claim, the plaintiff asserted that the defendant improperly performed amniocentesis, and as a result her infant son’s right eye was penetrated with a needle. Plaintiff alleges that this caused her baby to suffer a condition called microphthalmia (small eye). In addition, her baby is blind in that eye and must wear an ocular prosthesis. Defendant Garber filed a motion for summary judgment dismissal of the case, asserting that the baby’s condition was not caused by improper amniocentesis, but was actually a developmental anomaly.

When a defendant files a motion for summary judgment dismissal, the defendant has the burden of presenting a prima facie case that there is no genuine issue as to any material fact and that based on the undisputed facts, the defendant is entitled to judgment as a matter of law. If the defendant offers a prima facie showing, then the burden shifts to the plaintiff.

Published on: June 23, 2012

Woman Contends High Risk Pregnancy Wasnt Managed Properly

by Stephen Bilkis

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.

Published on: June 22, 2012

Plaintiff Sues Defendant for Pregnancy, NY Court Finds for the Plaintiff

by Stephen Bilkis

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.