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Defendant’s Motion to Dismiss is Denied by NY Appellate Court in Birth Injury Claim


A mother and her infant filed a complaint of medical malpractice and lack of informed consent with a derivative cause of action for loss of services. The infant was born prematurely at the university hospital and remained hospitalized for two more months. In the complainants’ bill of particulars, it is asserted that the gynecologist, the attending pediatrician and the hospital rendered care and treatment during labor and delivery, and upon birth of the infant, treatment of the infant for prematurity, respiratory distress syndrome and sepsis. The mother allege that the accused parties failed to timely and properly diagnose and treat the infant for hydrocephalus and failed to timely provide propelling of the fluid from the infant’s brain causing loss of function of the brain tissue. The mother claim that as a result, the infant has suffered profound and global developmental deficiencies with no hope for meaningful improvement, has required multiple hospitalizations, has undergone stem cell implants in an attempt to replace the lost functioning of the white matter, and that she will require 24 hour care for the remainder of her life with constant medical supervision.

The gynecologist and the attending pediatrician allege there were no departures from the appropriate medical standards of care and that they did not proximately cause the injuries from which the infant suffers. According to a New York Injury Lawyer, the physician argues that in the period of time he cared for the infant, she exhibited no signs of problems, demonstrated no pleural effusion and did not need to be seen by a pediatric neurosurgeon. Thus, the accused parties seek to dismiss the complaint as asserted against each of them.

The attending pediatrician testified that a discharge physical exam written by the resident indicated that the baby had hydrocephalus, but his fontanels and sutures were flat, suggesting that the hydrocephalus etiology was from a condition where the brain and the cranium is growing and that the hydrocephalus is not getting worse. He stated the infant was being discharged home to her parents and was to follow up with neurosurgery in three weeks. A Nassau County Personal Injury Lawyer further testified that the retinopathy of prematurity was not a complication of oxygen therapy, but was from prematurity as it is not seen in term newborns, and that it is a condition that affects the retina independent of the hydrocephalus.

Another pediatrics expert states that he reviewed the admission record of the infant maintained by university hospital, the verified Bill of Particulars and Supplemental verified Bill of Particulars, as well as the deposition transcripts, the summons and complaint, and complainants’ neonatology Expert Disclosure. It is the expert’s opinion within a reasonable degree of medical certainty that the attending pediatrician did not depart from accepted standards of care with respect to either the treatment he personally provided to the infant or the treatment provided by residents, fellows and other medical personnel to the infant under his supervision.

The pediatric expert sets forth that it is the mother’s theory that all of the infant’s injuries are secondary to the events that transpired one month after birth and during that time frame, a series of events occurred which caused the infant to sustain an deprivation of oxygen supply injury to the brain leading to the development of permanent seizure disorder, global developmental deficiencies and severe neurological birth injury. He further states that the attending pediatrician had absolutely no contact with the infant during the relevant time frame either in a direct or supervisory capacity. He states that as a result of the infant’s extreme prematurity, she was diagnosed with numerous medical conditions including respiratory distress syndrome, abnormal bilirubin level and sepsis. He further states that the infant’s attending pediatrician performed his initial examination of the infant approximately four hours after her birth, and by the time of his initial examination, her condition was such that she had already been placed on a ventilator and was treated for his respiratory distress syndrome. The pediatrics expert further sets forth that the alleged infant’s permanent lungs and eye related to the improper administration of oxygen are entirely without merit as there is no evidence whatsoever to indicate that either the retinopathy of prematurity or the lung injuries were secondary to the improper administration of oxygen. Based upon the foregoing, it is determined that the attending pediatrics has demonstrated legitimate case entitled to dismiss the complaint against him.

A New York City Personal Injury Lawyer said the complainants’ expert opinion claims that the attending pediatrician departed from accepted medical practice by allowing the infant to receive inappropriately high concentrations of oxygen in order to maintain an unnecessarily high blood oxygen saturation, and that he further deviated from accepted medical practice by failing to monitor the position of the catheter line and recognize that it was no longer in the large vein that carries de-oxygenated blood. The expert further opines that because of the infant’s birth weight and gestational age, she was already at risk for developing white matter injury to the brain, and that the attending pediatrician’s endorsement of the order for oxygen at that level allowed her to receive the aforementioned oxygen concentrations which made the white matter more susceptible to any injury.

The mother’s expert states that a premature infant has an immature auto-regulation of blood flow to the brain and it is vulnerable to changes in blood pressure, oxygen levels and carbon dioxide levels, and as a premature infant with an infection of the placenta present at the time of her birth, the infant was at increased risk for death of brain tissue. The expert further states that the infant did not have any sign of a brain injury including hemorrhage at birth and during the first week of her life. In addition, the expert further states that one month after birth, the infant had no evidence of such an injury on the head ultrasounds that were done, and it was the repeated exposure to the aforesaid oxygen concentrations that made her more susceptible to death of brain tissue, making her unable to withstand the insult of the respiratory distress and the resultant oxygen saturation caused by the infusion of the intravenous fluid into her chest.

He further states that during the infant’s admission, the attending physician was in charge of the neonatal intensive care unit and oversaw all orders written by the residents and fellows and required the nurses to adjust the ventilator setting of the oxygen concentration which is unacceptable for the infants gestational range and birth weight range. He claims that exposure to such high concentrations of oxygen increased the infant’s risk for development of injury to her tissues, including her brain, eyes and lungs. The mother’s expert further claims that as the infant’s attending physician, he had the obligation to review the orders and flow sheets documenting the ventilator settings, vital signs, blood gases and oxygen concentrations in the blood; and as the Director of the Fellowship Program, he had the obligation to be knowledgeable about the developments in neonatal care, including the effect of excess oxygen in the system of a neonate.

It is determined by the Court that the mother’s experts have raised material issues of fact in opposing the attending pediatrician’s motion to prevent the dismissal of the complaint. The factual issues raised the alleged departures from the standards of care. The complainants have demonstrated the existence of issues capable of trial of fact attesting to departures from accepted practice by the attending pediatrician and the departures were competent in producing cause of injuries to the infant.

Accordingly, motion by the infant’s attending pediatrician to dismiss the complaint against him is denied as there are material issues of fact which preclude the same. The motion by the accused pediatric expert to dismiss the complaint, opposed by the mother and her infant is denied.

If your life or a member of your family’s life is put into danger caused by the negligence of a medical practitioner, you may seek the assistance of a skilled lawyer at Stephen Bilkis and Associates. When a newborn child’s life is the one at risk, don’t hesitate to consult us right away for advice and a free consultation.

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