In March 1983, plaintiff was admitted to the labor and delivery unit of defendant Hospital. During the course of her labor, plaintiff’s attending physician, defendant-doctor, prescribed pitocin to stimulate her contractions. A New York Injury Lawyer said the drug was administered intravenously to plaintiff and, as a result, her contractions increased in intensity and frequency. Subsequently, plaintiff gave birth to a baby boy. The infant was in respiratory distress at birth and died approximately 6 1/2 hours later (a birth injury or birth injury accident).
Plaintiff and her husband commenced an action alleging negligence and medical malpracticeagainst the hospital, doctor and nurse, who attended to plaintiff throughout her labor and delivery.
Plaintiff seeks recovery for serious personal injuries, physical and emotional pain, disappointment, sadness, anxiety and psychological trauma; a derivative claim interposed by plaintiff’s husband; against the hospital only for negligent hiring and supervision; recovery for the infant’s wrongful death and the infant’s conscious pain and suffering.
After the discovery proceeding had been completed, defendant-doctor moved for partial summary judgment dismissing the first two causes of action for failure to state a claim; defendant-nurse cross-moved for the same relief in a separate notice of motion; and the hospital sought dismissal of plaintiffs’ first three causes of action in its motion for partial summary judgment. In support of their motions, defendants contended that plaintiff had not sustained any physical injury, a necessary predicate to plaintiff’s recovery for the negligent infliction of emotional harm.
A Suffolk Personal Injury Lawyer said the Supreme Court granted defendants’ motions for partial summary judgment dismissing the first, second and third causes of action contained in the complaint.
Hence, an appeal by plaintiffs ensued.
Was the partial summary judgment warranted under the circumstances? Are defendants absolved of any liability to plaintiff?
The Ruling of the Court:
First, plaintiffs contend that defendants’ motions pursuant to the Civil Practice Law and Rules (CPLR) were essentially motions to dismiss and that the Supreme Court erred in failing to give them notice; that it intended to treat the motions as seeking partial summary judgment.
The court disagrees. Each defendant’s notice of motion specifically requested partial summary judgment pursuant to CPLR. Moreover, plaintiffs’ responding papers demonstrate that they were fully aware of the nature of the relief sought by defendants. Therefore, in the court’s view, no additional notice by the court was necessary.
Second, plaintiffs also contend that the Supreme Court erred in granting summary judgment dismissing their first three causes of action. In order to maintain an action for emotional injuries occasioned by the death of a newborn, the mother must be shown to have suffered a physical injury as a result of the alleged malpractice. In support of his motion for summary judgment, defendant-doctor submitted an excerpt from plaintiff’s deposition wherein she stated that she suffered no physical injury from the delivery except for an episiotomy. Moreover, in his examination before trial, defendant-doctor rendered his opinion based on plaintiff’s medical records that her labor pains were not excessively intense.
It has been ruled by a variety of courts that an episiotomy will not constitute a physical injury unless it is also alleged to be the cause of the infant’s death. The foregoing proof prima facie established that plaintiff suffered no physical injury as the result of any alleged malpractice. In response, plaintiffs submitted only an attorney’s affidavit alleging that plaintiff was physically injured by an excessive dose of pitocin. A Nassau County Personal Injury Lawyer said this allegation, however, unsubstantiated by any expert medical evidence, is insufficient to create a triable issue of fact.
Consequently, the Supreme Court did not err in granting defendants’ motions for partial summary judgment.
The court has considered plaintiffs’ other contentions and finds them to be without merit.
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