New York City

Published on: June 10, 2012

NY Appellate Court Discusses Liability Issues for Slip and Fall on City Sidewalk

by Stephen Bilkis

The Housing Authority entered into a contract with a general contractor to improve the grounds of a housing projects owned by the City of New York. The general contractor entered into a subcontract with a company that performs concrete work. The grounds of the housing project abutted a sidewalk.

On March 21, 2006 an elderly woman and her husband were walking on the sidewalk around the housing project. The husband was assisted by a healthcare attendant. As they were walking, the elderly woman’s right foot got stuck in a deep indentation in the concrete sidewalk. This hole in the sidewalk caused her to slip and fallon her knees. When the elderly lady got up, she saw the hole for the first time and described it to be about five inches long, ten inches wide and three inches deep.

The woman sued the City of New York and the Housing Authority. These two defendants sued the general contractor and the sub-contractor whose job was to work on the concrete grounds in and around the housing project.

Published on: June 8, 2012

Child has Slip and Fall Accident on School Stairs, Defendant Denied Summary Judgement

by Stephen Bilkis

A ten year old boy studying at a Jewish elementary School in Kings County was supposed to stay in the classroom but he slipped out. A New York Injury Lawyer said he met his younger brother in the hallway near the stairs. They played and horsed around. While they were doing so, the ten year old boy had a slip and fall down the stairs during which he sustained injury. His parents sued the school on two basis: their failure to duly supervise their child and for their responsibility to keep their premises safe for the students.

The parents and the school asked the teacher in charge of the ten year old boy to execute a statement detailing what he knew and observed on the day of the boy’s slip and fall. He testified that the boy had slipped out unnoticed from the classroom prior to the accident; but the boy also managed to obtain permission to leave the classroom on several occasions prior to the accident so that the teacher cannot now remember if the boy had obtained his permission to leave the classroom on the day of his accident.

The Court ruled that this statement of the boy’s teacher cannot be considered as evidence in admissible form as it was not signed or sworn to before a person authorized to administer oaths.

Published on: June 7, 2012

Plaintiff Sues For Slip and Fall in Parking Lot, Defendant’s Summary Judgement Motion Denied by NY Appellate Court

by Stephen Bilkis

One rainy day in December 2007 at around 6am, a woman drove into the parking lot to go and buy breakfast at a deli. It had rained overnight and it was still dark, the parking lot was not brightly lit. The woman got off of her car and started walking toward the brightly lit deli. About four paces away from her car as she was going toward the deli, the woman had a slip and fall on the parking lot. She tried to get up but she was unable to get up because the parking lot was so slippery. Her clothes got thoroughly soaked as she struggled to get up. Luckily someone from inside the deli saw her and ran out to help her.

The premises were owned by a corporation which let it out to the deli and a women’s fitness gym. The woman sued the owner of the premises, the deli and the fitness center.

A New York Injury Lawyer said the women’s fitness center and the deli owner both filed motions for summary judgment asking that the complaint against them be dismissed as they were mere tenants renting the premises. They are not responsible for maintaining the parking lot as this was not in their contract. It was the building owner who was contractually bound to maintain the parking lot.

Published on: June 6, 2012

Plaintiff Brings Action for Birth Injury, Doctor’s Motion for Summary Judgement Denied

by Stephen Bilkis

A mother and her child filed a medical malpracticelegal action against a hospital and three doctors. The mother allege that the hospital and the doctors basically failed to timely schedule a cesarean section as well as her delivery to her infant which was in double footling breech presentation.

A double footling presentation is a condition whereby the fetus’ both feet are the presenting part. As a result, it caused the infant to suffer a spinal injury during delivery, produce bleeding and swelling, and ultimately segmental spinal cord atrophy resulting paralysis and severe low muscle tone to the lower extremities, hydronephrosis, neurogenic bladder transverse myelopathy, and a marked spinal kyphosis. A neurogenic bladder transverse myelopathy is a condition indicating that there is something wrong with the spine. A New York Injury Lawyer said the mother claims that her infant, now four years old, was unable to walk, suffers from frequent urinary tract infections, requires continuous antibiotic therapy and urinary catherization. The mother further states that all of her infant’s injuries are permanent.

The mother alleges that the hospital and the three doctors failed to perform a cesarean section when an external version was unsuccessful. Bases on records, an external version is known as a procedure used to manually turn a fetus from a breech position into a vertex position which is a normal presentation wherein the fetal head is the presenting part before labor begins. It is usually done to make vaginal delivery possible. The mother claims that the hospital and the doctors were negligent in performing the external version. She further claims that they failed to perform pelvimetry studies. A pelvimetry refers to the measurement of the diameters of the pelvis and it also recognizes a footling breech caused by a frank breech to become a footling breech. A Nassau County Personal Injury Lawyer said a frank breech has been described as the position of the fetus whereby the fetus’ buttocks are present at the maternal pelvic inlet, legs are straight up in front of the body, and feet are at the shoulders. Additional, she claims that they failed to perform vaginal exams at 36 weeks.

Published on: June 3, 2012

Plaintiff Contends Emotional Distress in Medical Malpractice Claim

by Stephen Bilkis

A mother and on behalf of her deceased daughter, sued three doctors, two nurses and a hospital for medical malpracticeand for her daughter’s wrongful death. However, the hospital together with one of the doctors and one of the nurses separately move for a decision without a trial to dismiss the claims for emotional distress and lost society, comfort, and affection. The said doctor also seeks dismissal of the mother’s claims for lost support, services, and protection.

In opposition to the medical practitioner’s motions, the mother maintains that her action is closer with the previous court case in which a mother may recover for emotional distress when a child is stillborn due to medical malpractice. Further, a New York Injury Lawyer said the current record raises a factual issue whether the mother’s child was stillborn, since the opponent didn’t show that the child took a breath or had a heartbeat. Based on records, the state’s public health law defines live birth as a product of conception which after separation breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. The medical practitioners point out, however, that as they failed to make that showing, it was unnecessary, because the mother pleaded another claim on which with that previous court case a mother may not recover for emotional distress when her child is born alive and then dies due to malpractice. Consequently, the mother moved to revise her complaint and bills of particulars to clarify her alternative theories.

The court grants the mother’s motion to revise her complaint and bill of particulars as specified. Further, the court also denies the medical practitioner’s current motion for a decision without trial, without prejudice, as they seek dismissal of her claim for emotional distress.

Published on: June 1, 2012

Birth Injury Case Remanded for a New Trial in Birth Injury Case

by Stephen Bilkis

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.

Published on: May 31, 2012

Medical Malpractice Case Turns on Issue of Whether Child was Stillborn

by Stephen Bilkis

In New York, civil lawsuit policy is dictated through case law that determines what if any compensation that a person is entitled to. In the case of an infant who is stillborn due to medical malpractice, the standard of policy is determined by Broadnax v Gonzalez 2 N.Y. 3d 148, 777 N.Y. S 2d 416, 809 N.E. 2d 645 (2004). It states that a mother may recover damages for emotional distress due to a delivery of an infant who is stillborn, or deceased at birth due to medical malpractice.

However, if that same infant is delivered alive and then dies, then the mother is not eligible to recover damages based on emotional distress. She is able to recover for lost support, services, or protection. She may also recover other pecuniary loss from the medical malpractice death of her child. These guidelines are established in Sheppard-Mobley v King, 4 N.Y.3d 627, 797 N.Y.S. 2d 403, 830 N.E. 2d 301 (2005).

Therefore, for a mother whose child is deceased, in order to file a lawsuit, she must know if the child was actually stillborn, or if the child died after taking a breath. A New York Injury Lawyer said that a single breath is proof that the child was born alive. Air in the baby’s lungs is considered proof that the baby was born alive. However, in a case where these lines are blurred, it can become difficult for a parent to know how to proceed. The case must be filed within a set time period of 90 days from the birth of the child. It can be difficult for a mother who has just lost her child to make decisions of this sort in this time frame.

Published on: May 30, 2012

Plaintiff Unable to Prove Negligence in Slip and Fall Case

by Stephen Bilkis

When a person is injured in a place of business it is important that they notify that place of business immediately and in a timely manner. Failure to notify the management can cause the management to doubt the situation existed. It is also a matter for dispute in court. In one case that occurred at a movie theatre on Harkness Avenue in Brooklyn, New York is an example of this type of failure. A couple went to the movies at that theatre. At some point during the film, the woman left the man watching the movie and went out to the lobby to get some popcorn.

As she traversed the lobby, she slipped on a sticky liquid on the floor that was presumably some type of soda. She slip and fallfractured her wrist. She did not notify the movie theatre employees until the following day. She got up and returned to her seat. As she and her date were leaving that night, she pointed out the area to him and stated that she had fallen there. He told her that he had nearly fallen there himself at one point.

The following day, her wrist was hurting her and she went to a doctor for treatment. She was told that she had fractured her wrist. A New York Injury Lawyer said he and her date returned to the movie theatre that day and notified the assistant manager that the accident had happened. He purportedly told them that he had noticed the spill the night before and instructed the employees to clean it up, but that no one had listened to him. The spill had gone uncorrected. The woman filed a lawsuit against the theatre for personal injury that resulted from her fall on their property. However, in her own statement to the court, the woman stated that she had not seen the liquid on the floor prior to her fall and that to her knowledge it had not been reported to management prior to her accident. She stated that she had collected herself after the incident and returned to the movie. She had finished watching the movie and returned to her home. She stated that she waited until the following day to file the accident report with the theatre.

Published on: May 29, 2012

Mother’s Medical Malpractice Suit for Premature Labor Dismissed Due to Statute of Limitations

by Stephen Bilkis

Anytime that a baby suffers a birth injury it is a traumatic experience for everyone involved. Sometimes, a birth injury is an act of medical malpractice. In that case, it is even more traumatic for the family. In one case which occurred at Harlem Hospital Center on October 23, 1997. A woman came into the hospital suffering from symptoms of early onset labor. She was only 28 weeks pregnant. The doctors gave her tocolytics in an attempt to stop her labor. However, the administration of the medication was not successful and her labor continued. The baby boy was born severely premature. The doctors advised the mother that the baby was born with an intestinal condition that required immediate surgery. She permitted the surgery on the baby.

A New York Injury Lawyer said the doctors at Harlem Hospital Center performed a left hemicolectomy and a temporary colostomy. The baby remained in the hospital until January 28, 1998 while he suffered from ongoing problems with his intestines. After being discharged from the hospital, the baby continued to have serious problems with his bowels and on January 8, 1999, the doctors at Harlem Hospital Center performed an anorectal pull through and colostomy closure. The child continued to have problems and continued to be a patient at the hospital off and on through the next several years, until 2001.

In 2001, his mother felt that it was time to get a second opinion because she had begun to doubt that the care that her son was receiving at Harlem was in his best interest. She took him to New York Presbyterian Hospital for an evaluation. At that time the doctors there informed her that the anorectal pull through had been performed improperly. On September 22, 2006, the child underwent intestinal surgery at Presbyterian to correct the damage that they told her had been done at Harlem.

Published on: May 27, 2012

NY Court Decides of Statute of Limitations Has Run on Medical Malpractice Claim

by Stephen Bilkis

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 malpractice claim 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.