Westchester County

Published on: July 30, 2012

Mother appeals medical malpractice action for birth injury – Bustos v. Lenox Hill Hosp., 2009 NY Slip Op 32464(U) (N.Y. Sup. Ct. 10/19/2009)

by Stephen Bilkis

This medical malpractice action arises out of the labor and delivery of plaintiff Bustos’ son. Due to the large size of her baby, Bustos suffered a fractured pelvis bone during the vaginal delivery. Bustos filed a medical malpractice claim against her doctor, asserting that he departed from good and accepted standards of medical practice by failing to properly evaluate the size of the fetus and failing to recommend a cesarean section. As a result, Bustos sustained symphysis pubis diastasis—a separation and/or fracture of the lower pelvic bone—following the vaginal delivery of her son, requiring surgical intervention and pinning.

The standard for whether a doctor committed medical malpractice is whether the doctor’s care and treatment of the patient deviated from accepted community standards of medical practice, and as a result, the patient was injured.

Defendant Segarra cared for Bustos during her pregnancy. She had regular appointments with him throughout her pregnancy. On the morning of April 1, 2003, Bustos was admitted to Lenox Hill where she delivered a healthy 10-pound baby boy via vaginal delivery. During delivery Bustos was positioned flat on her back on the delivery table and her legs were spread apart with her heels hitched onto the stirrups. The bones where the two halves of her pelvis met were relaxed by the hormones of childbirth but the doctor performed a hyper flexion-abduction maneuver after she was given an epidural. Following the delivery, Bustos complained of bilateral back and leg pain. She then had surgery to repair her fractured pelvis. Bustos maintains that her pelvis would not have fractured if the doctor had properly determined the baby’s delivery weight and delivered her baby via cesarean section. The baby was large, as is common when the mother suffers from gestational diabetes—as did Bustos. The pelvic fracture could have been avoided if the baby was delivered via a cesarean section.

Published on: July 22, 2012

Court determines liability of pet store owner in dog bite case – D.C. v. Petco Animal Supplies Stores, Inc., 2007 NY Slip Op 51413(U) (N.Y. Sup. Ct. 7/16/2007)

by Stephen Bilkis

In D.C. v. Petco Animal Supplies Stores, the court determines the liability of a pet store owner in a case where a customer’s pet dog bites a child in the store. This case may impact not only pet stores where customer pets are routinely permitted, but other types of stores and venues where there is a trend toward becoming more “pet-friendly.”

On January 23, 2006, plaintiff Christian took her two children to defendant pet store, Petco, in order to buy supplies. Defendant Coughlin was also shopping at the same pet store. He had with him his 8-9-month-old Rottweiler puppy that he had adopted from an animal shelter just ten days earlier. The dog exhibited a great disposition and Coughlin was in the process training with the puppy. After coming from the animal shelter, the puppy had contact with children. The puppy had visited the pet store before the incident and had not exhibited any aggressiveness or territorial barking.

On that day at the pet store, plaintiff Christian asked Coughlin if her daughters could pet his puppy. The puppy was on a leash. Coughlin agreed. While Coughlin and Christian chatted, her children patted the dog. Suddenly the Rottweiler lunged and bit one of Christian’s daughters in the mouth causing her injury.

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 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 16, 2012

Infants Personal Injury Award Paid to Welfare Department

by Stephen Bilkis

The female complainant was a public charge from the time of her birth and maintained by the County Welfare Department infants’ homes and foster homes. She was married and was removed from the Welfare rolls.

A New York Injury Lawyer said in 1955 the complainant was involved in an automobile accident. By the order of the County Supreme Court, the infant’s settlement was allowed and bills were ordered paid to the County Welfare Department as reimbursement as a fifty percent compromise for sums paid by said Department to the hospital and the balance was ordered paid over to the Commissioner of Social Welfare as general guardian of the infant, jointly with the Guardianship Department of the Surrogate’s Court. The Welfare Department’s allegation that the money was expended on behalf of complainant from the date of her birth to shortly before her marriage appears to be unchallenged. By an order of a Judge, the sum of $4,012.95 then in the infant’s guardianship account was ordered to be paid to the Commissioner of Social Welfare as part reimbursement for the support, care and maintenance furnished by the County Department of Social Welfare. The pending proceeding is for an order setting aside the aforesaid order of the Surrogate’s Court and directing an accounting by the Commissioner of Social Services and payment of the funds to the complainants.

There appears to be no question but that the sums of money involved were in the guardianship account as a result of the infant’s settlement for personal injuries. The complainant’s theory is that funds of an infant from a personal injury settlement may not be applied for care and maintenance. Many cases in the State promulgate the theory.

Published on: June 14, 2012

Plantiff Slips and Falls Disembarking From a Bus

by Stephen Bilkis

At the time of the accident, it was snowing and plaintiff was a passenger on defendants’ bus which got stuck in snow and slush at a bus stop in the Bronx. Plaintiff and the other passengers disembarked at the bus stop onto the sidewalk to wait for another bus. After waiting approximately 20 minutes, another bus arrived and stopped alongside the stranded bus. A New York Injury Lawyer said when plaintiff walked into the street and in front of the stranded bus to get on the second bus, she slipped and fell on the snow in the road and fractured her right elbow.

Plaintiff initiated a personal injury action alleging negligence on the part of defendants for their failure to equip the stranded bus with snow tires or snow chains, and for failing to provide plaintiff with a safe place to board the second bus.

The jury found defendants liable for failing to equip the bus with proper snow tires or chains but did not find defendants negligent, for failing to provide a safe place to board the replacement bus. The jury awarded plaintiff $450,000 in damages.

Published on: June 13, 2012

Court Decides if Insurance Co. Liable in Hospital Mishap

by Stephen Bilkis

The wife of the complainant went to a Hospital where she had a normal delivery of a child and she remained for five days at which time she and the infant were discharged.

The facts further indicate that the child was born with a right congenital hernia. In the best interest of the infant’s health, the operation was postponed for three months. A New York Injury Lawyer said that at that time, herniotomy was performed at another Hospital and the child was discharged after three days.

The services of the hospital and doctors during the confinement of the woman and her child amounted to $474.90 and the expenses incurred for correcting the hernia amounted to $288.00.

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 26, 2012

Plaintiff Brings Action for Medical Malpractice in Erb’s Palsy Case

by Stephen Bilkis

A woman’s husband worked for a company whose union established a clinic for its members and their dependents. When the woman got pregnant with her first baby, she went to the union’s clinic. The clinic assigned her to an obstetrician who saw her and took care of her during her pregnancy. She gave birth vaginally to a baby boy and her pregnancy and childbirth was uneventful.

A New York Injury Lawyer said for this reason, when she got pregnant with her second baby, she again went to the union’s clinic and was assigned to the same doctor who assisted her first pregnancy. She saw the obstetrician on January 20, 1999 when she was just eight weeks pregnant. The woman was then 35 years old and she did not know that she had high blood pressure. She had six sonograms in total and all were normal.

When the woman was 25 weeks pregnant, the doctor measured the height of the baby and came to the conclusion that the child was too big for its gestational age. A blood test confirmed that the woman had gestational diabetes. Her pregnancy was considered as high rish and she was referred to a specialist who recommended that she be delivered at 39 weeks.

Published on: May 25, 2012

Plaintiff Sues for Slip and Fall in Movie Theatre, NY Appellate Court Grants Defendant’s Summary Judgement Motion

by Stephen Bilkis

On 9 November 2002, between 4:00 and 4:30 P.M., plaintiff walked into the theater to see “Eight Mile” while previews were in progress. She entered the theater with her daughter, a friend, and the friend’s daughter, through the rear door of the theater. They proceeded down the ramp on the right hand side of the theater and when she reached the aisle in front of the theater, she turned to her left, walked across the front aisle of the theater and while she was making a left turn to the opposite side of the theater, she slipped and fell and suffered injuries.

Plaintiff’s intention was to sit in the empty seats she observed in the fourth or fifth row of the theater. Her friend, friend’s daughter, and her own daughter were walking ahead of her when she slipped and fell.

Thereafter, plaintiff commenced a slip and fallpersonal injury action against the owner, defendant, of the movie theater where plaintiff slipped and fell on an alleged greasy substance and/or popcorn and candy while she was walking down an aisle close to the movie theater screen.