Published on:

New York Court Hears Medical Malpractice Claim Based on Birth Injury


Petitioner was born prematurely at about 31-weeks gestation at defendant hospital. He is alleging that because of defendant Hospital’s failure to properly diagnose the amniotic infection of his mother and failure to properly monitor and intervene with the labor and delivery process, he incurred development delay, cerebral palsy, and spastic diplegia. Petitioner filed to claim damages but defendant Hospital is argues that the action has already expired, and petitioner cannot claim anymore.

A New York Injury Lawyer said that according to General Municipal Law, the Legislature enacted a protocol for suing a public corporation a notice of claim should be first filed. Under the same law, it is provided that it is the discretion of the court to extend the time, which a petitioner can serve a notice of claim. However, the extension should not exceed the time limit for the commencement of the action against public corporation. The law requires that the notice should be served 90 days after the claim arises. The extension of time should consider whether it involves an infant, if the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, when the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and lastly, if the delay would substantially prejudice the municipality in maintaining its defense on the merits. A Manhattan personal injury lawyer said tha based on jurisprudence, the court shall consider other relevant facts and circumstances such as whether the claimant was an infant, mentally, or physically incapacitated, or died before the time limited for service of the notice of claim. If the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative. Also, whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted, and lastly, whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

Medical records show that petitioner was prematurely born. He was approximately 31-weeks gestation, low birth weight and in need of immediate oxygen resuscitation. A Long Island Personal Injury Lawyer said he was on oxygen for five days after his birth and was then transferred to the Neonatal Intensive Care Unit or NICU and for a month, he remained hospitalized. ased on the medical records, there is no showing of substantial prejudice and there since there is no injury, the lack of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim.

However, the claim of the mother is dismissed on the grounds that the infancy toll is purely personal to the infant petitioner. This does not extend to the mother, thus there is no cause of action. The mother then filed leave to amend a bill of particulars. According to jurisprudence, amendment of a bill of particulars is ordinarily freely given in the absence of prejudice or surprise resulting directly from the delay. The court granted this leave to amend bill of particulars, provided that they would include additional allegations in support of the theory of the medical malpractice set forth in the prior proceedings.

Defendant hospital submits the affirmation of one doctor who is board certified in obstetrics and gynecology. According to the doctor, the defendant hospital followed good and accepted standards of medical practice with respect to the treatment of the infant plaintiff and that defendant hospital did not contribute to or directly caused the birth injury.

To challenge this, plaintiff also submitted affirmation of doctors, who is board certified in pediatric neurology and another is board certified in obstetrics and gynecology. Both of the doctors assert that defendant Hospital failed to observe and departed from good and accepted medical practice which lead to contribute to the infant’s brain injury, the consequences of which include cerebral palsy. These affirmations made by the doctors raise questions of fact involving the medical malpractice and the proximate cause as to whether the infant plaintiff suffered injury due to the treatment he received from defendant Hospital.

The ruling of the court, based on this was to grant the amendment of bill of particulars and plaintiffs’ notice of claim to be timely served.

There are good and accepted standards in medical practice. Any deviations for this standard can cause damage to our persons. If your child has been the victim of medical malpractice contact Stephen Bilkis and Associates. They can help you protect your rights and persons. NY Birth injury accident lawyers services are also available. Because there is a good and accepted standard for medicine practice, we do not deserve anything below the standards.

Contact Information