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Child Dies After Medical Malpractice Mistakes, New York Appellate Court Modifies Judgement


A mother alleges medical malpracticeas a result of the failure of the hospital in evaluating properly her condition as well as treating her when she presented at the hospital in approximately 32nd week of pregnancy with complaints of abdominal pain, she delivered a baby at home unattended by a medical personnel. The baby emerged in a footling breech position and was later determined to have died of asphyxia, a condition where the body is severely insufficient in supply of oxygen, because its head had been wedged at the birth canal. The mother claims that she suffered great emotional pain as a result of this event and its consequences. The complaint alleges that the baby was born alive, and names the baby’s estate and the baby’s father as co-complainant. The hospital brought a third-party action against the physician who allegedly treated the mother on her final visit to the said health care facility prior to the home birth.

A New York Injury Lawyer said that following the pretrial disclosure, the hospital and the physician moved to asked for decision without proceeding to dismiss the complaint on the ground that the baby had been stillborn. The complainant was prohibited from claiming damages. At the time the motion was made, the prevailing rule under the law was that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth, absent a showing that she had suffered a distinct physical injury.

The mother in opposing the motion contented that her baby had briefly lived. The civil court denied the request to dismiss the complaint, concluding that the record presented did not establish that the baby was stillborn.

After the case had been placed on the trial calendar, the mother served a revised expert witness testimony, a notice of medical report, and a further expert testimonial. A Nassau County Personal Injury Lawyer said that was the first indication that the mother would call an expert witness at trial to establish that the mother suffered emotional injuries. However, the hospital and the physician moved to disqualify the complainants from revealing expert testimony at trial, contending that recovery for such injuries depended upon the mother proving that the baby had been stillborn, and that the mother was intelligently impede from taking that position, which was at odds with the facts as pleaded and as complainant had argued in opposition to the motion for decision dismissing the complaint. In an order, the civil court denied the motion and directed the mother to revise the complaint to allege that the baby was stillborn, finding that the doctrine of legal impediment did not apply when a party took contradictory positions within the context of a single lawsuit.

The evidence attested on trial that the mother was first treated at the hospital during her pregnancy when she presented with headache, fever and lower abdominal pain and was hospitalized for six days. Subsequently, a Suffolk County Personal Injury Lawyer said the mother returned to the hospital with complaints of pain, lower abdominal pain, and spotting, and was admitted for the purpose of ruling out labor. She was treated with a drug that relaxes the uterine muscles and also used to stop premature labor, and then she was placed on a fetal monitor. Further, a culture test was taken and an antibiotic was administered. The mother was discharged on with a diagnosis of cervicitis.

Two days after the mother’s discharged, she was again admitted to the hospital with similar complaints. During the admission, she received another drug used to prevent or stop premature labor, and was discharged against with medical advice. Four days after, the mother returned to the hospital. She was determined not to be in labor and given another antibiotic for a possible urinary tract infection then sent home. On the succeeding day, the mother was approximately on her 32 to 33 weeks of pregnancy. She had triage admission at the same hospital and again determined was not in labor then she left.

The mother again reported to the hospital later the same morning. Although there was no hospital record made of that visit, it was certain that the mother was seen by medical personnel at that time, was given a prescription of certain drug written on the physician’s prescription pad and was sent home. On the following day, while at home, the mother began experiencing an urge to urinate but was unable to empty her bladder. At approximately 12 noon, the mother went into abrupt labor. Her brother called for an ambulance but the baby was born foot-first at home. There was a testimony that while the baby was only partially emerged, she was pink and kicking. However, the baby’s head lodged in the birth canal and on that specific time the baby appeared gray and had no detectable pulse. Efforts of resuscitation begun at home by an EMS technician and was continued in the ambulance going to the hospital. From the ambulance, the baby was reported by the EMS technician to be in arrest and upon arrival at the hospital the baby had no pulse or respirations. Suctioning, bagging and intubation was done and pulse respirations and an EKG rhythm were briefly recorded. However, after several minutes the baby was pronounced dead. The death certificate states that the baby died at the age of approximately one hour because of asphyxia due to unattended breech delivery with head wedged in birth canal. However, the mother’s expert physician testified that a breech baby born cyanotic with zero pulse and zero respirations approximately half an hour after its feet emerge is stillborn. Consequently, there was conflicting evidence presented as to whether the baby was born alive or was successfully resuscitated for any period of time.

The hospital’s experts testified to their belief that the mother had not been in labor when she went to the hospital on the days before her abrupt delivery. It was their contention that the placenta became infected following those triage visits to the hospital, and that the infection caused the sudden delivery of the baby at home. As to the argument, the mother’s expert countered with his opinion that the placenta became infected because of its exposure to microbial agents during the time that the mother was at home with ruptured membranes and a partially delivered baby as well as during her ambulance transport to the hospital. It was his opinion that, rather than causing the premature delivery, the placenta became infected during the extended delivery process that occurred in non-sterile conditions.

The jury recognizes the duty to consider whether the jury verdict deviated materially from what would be reasonable compensation. Based on the record, the review of damage awards involves the use of two distinctly different standards. One analysis focuses on whether or not the verdict is supported by the evidence. Another line of inquiry requires us to determine what awards have been previously approved on appellate review and decide whether the instant award falls within those boundaries.

The jury’s judgment reflected its decision to resolve the battle of the experts in the mother’s favor. The jury finds no grounds for reversal of the decision, which was based upon significant evidence.

Considering the nature of the mother’s injuries, the jury concluded that the civil court properly refused to reduce the jury’s award for the mother’s past pain and suffering. The court noted that the judgment entered was awards judgment not only in favor of the mother individually, but also in favor of the administrator of the estate of the baby. The court corrected the clerical error by modifying the judgment to provide that the award is only in favor of the mother individually.

It is very disappointing for a parent to see her own baby without life. If you want to provide your child with justice she deserves, call our NYC Birth Injury Lawyer and our NYC Medical Malpractices Lawyers for legal guidance. Helping the person claim his rights can lessen the pain and suffering he is experiencing, so call a NYC Injury Lawyers at Stephen Bilkis & Associates to find out how.

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