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Plaintiff Files Appeal in NY Appellate Court for Birth Injury Case

A mother filed a medical malpractice action against her attending physician, her infant’s pediatrician, and the hospital. It was urged that the medical malpractice included the accused parties’ failure to properly monitor the mother’s condition during labor when her blood loss was allegedly abnormal. While the bill of particulars in the prior action stated that the accused parties failed to treat a maternal complication known as placenta previa. At trial, the complainant and her medical expert claims that the mother’s continuous moderate vaginal bleeding from the time of her admission until delivery was symptomatic of a condition known as placenta disorder where the placenta prematurely separates from the uterine wall causing depletion in oxygen transfer from the mother to the fetus. The oxygen depletion caused fetal distress and the mother contends a single transitory deceleration in the fetal heart rate from 134 to 92 beats per minute during labor and approximately an hour after her admission to the hospital. It was alleged that as a consequence of the attending physician’s failure to monitor the maternal and fetal condition, the infant sustained permanent brain injury.

After the first action was set down for the mother voluntarily discontinued as against the pediatrician and the hospital. A New York Injury Lawyer said the trial proceeded solely against the attending physician on the theory that the alleged condition of the mother during labor warranted the institution of certain procedures such as rupture of the membranes and/or the performance of a cesarean section, which would have prevented brain injury to the infant.

Three days after the jury rendered its verdict in favor of the attending physician, an action was instituted on behalf of the infant against the hospital and a resident in obstetrics and gynecology who assisted in the labor and delivery rooms on the day of the infant’s birth. A Bronx Personal Injury Lawyer said the second suit was premised on a theory of medical malpractice substantially similar to that alleged in the first, namely, the improper monitoring of the mother and fetus during labor, resulting in the failure to diagnose and treat abnormal vaginal bleeding which occasioned the infant’s birth injuries.

The hospital moved to amend the trial transcript so as to indicate that the complainants’ discontinuance against them was with prejudice. By order, a Trial Term granted the motion. However, the court reversed and denied the same upon the ground that the trial court and the attorneys for the parties in the first action had not complied with the statutory protections afforded to infants whose rights to proceed against a party are to be terminated. The Court of Appeals affirmed.

In March of 1981, the hospital and the resident obstetrics and gynecology, having properly raised the defenses of issues that were already settled and collateral obstruction in their responsive pleading brought on the instant motion for summary judgment to dismiss the complainants’ action on those grounds. In opposition, the infant and her mother asserted that the necessary prerequisite for application of those defenses had not been met in that, while the birth injuries to the infant were common to the actions, the factual bases for liability were wholly distinct from one another. In denying the motion, Special Term reasoned that holding that infant’s discontinuance of the said action against the hospital was without prejudice and the infant was in effect given the right to institute and continue his present lawsuit against the hospital and the resident gynecologist, notwithstanding the jury verdict against the infant in the prior action.

Based upon the record before the court, it can fairly be concluded that neither the quality of woman’s representation in the prior Supreme Court action, nor the initiative to proceed therein, were such as to call into question the application of issue disqualification. A Brooklyn Personal Injury Lawyer said clearly then, the woman has failed to sustain he burden of demonstrating that issue preclusion should not be applied because she did not have a full and fair opportunity to contest the determination now said to be controlling. Accordingly, we turn to the question of whether the accused parties have sustained their burden of establishing an identity of issue necessarily decided in the prior action.

In sum, then, it would seem that when disqualification is sought to be invoked with respect to questions arising in a suit based upon a different cause of action, inquiry must center upon those issues and facts directly raised and actually litigated in the prior action. For disqualification purposes, an issue is actually litigated when properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined. However, it has been observed that it may be said that the doctrine of issue preclusion no longer applies only to matters actually litigated. It may also apply to matters that were necessarily decided in the prior action although not actually litigated.

Based upon a comparison of the pleadings and their intensifications in the prior and instant actions, which are essentially identical, and other materials of record in the prior action, it is the Court’s opinion that the essential prerequisites of identity of issue have been met.

In essence, the infant seeks to retry his case based upon the exact facts upon which he previously relied. The only difference is the cast of accused parties. He obscures the similarity by urging that the inconsistency between the testimonies of his mother’s attending physician at her examination before trial and her later testimony at the first trial regarding the exact time when she arrived at the hospital and began monitoring the mother, is central to the issue of medical malpractice on the part of each accused party named. However, if, as the infant currently alleges and his counsel most strenuously urged upon trial of the prior action that the placental separation existed prior to the attending physician’s arrival, then as the accused parties’ expert at the first trial testified, and as accepted medical authorities agree, such pathological process had to continue because a placenta disorder, once detached, does not reattach itself. Moreover, had its existence been established at trial, a presumption of continuity would have been raised. Indeed, as the infant by his brief concedes, if in fact it was necessarily determined in the prior action that there was no abnormal maternal bleeding and the fetus was not in distress prior to delivery, the issue of disqualification would apply.

His assertion that the failure to properly monitor the mother, which occurred sometime between her admission to the hospital and the deceleration in the fetal heart rate at approximately 8:30 P.M., and the fact that her attending physician changed her testimony estimating her arrival at the hospital rather than her being present at the time of the admission and first examination of the expectant mother, creates a new issue as to the responsibility for the alleged medical malpractice, is in error. To succeed on the theory of liability against any of the accused party, the complainant would be required to demonstrate that the asserted placenta disorder existed, and that the single episode of slow heart rate heard by the attending physician evidenced such condition. Yet, the existence of the condition was fully litigated in the prior action. In finding that the attending physician was not guilty of medical malpractice, the jury necessarily determined that the alleged placenta disorder was not present, and therefore that any invasive procedures such as a cesarean section were not indicated under the circumstances. To conclude otherwise, would be to afford the complainant the opportunity to unfairly engage in repetitive litigation.

Accordingly, the order of Special Term should be reversed and the accused parties’ motion for summary judgment dismissing the complaint is granted.

Lawsuits are oftentimes results of merely misunderstandings. When patients are not informed properly of the risks and benefits of a certain medical procedure, or the risks when they neglect to do their part regarding their health conditions, a legal action will surely follow. If you want to be provided with sound legal advice, feel free to contact the offices of Stephen Bilkis and Associates. We will provide you with legal counsel and a free consultation.

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