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Mother Sues for Medical Malpractice in Death of Infant, Court Denies Motion for Summary Judgement


A woman first came to see the obstetrician on October 14, 2004. She was told that she was estimated to deliver around May 29, 2005. On her first visit, her blood pressure was 100/60. Her first sonogram showed that the size of the fetus was consistent with the due date. But later sonograms showed that the fetus was larger than its gestational age.

A New York Injury Lawyer said by the middle of the month of May, the woman had edema of the hands and feet, her urine had traces of protein and she reported spotting in her vision. On June 6, she reported shivering and on June 7, she reported that she did not feel any heartbeat.

The woman still had not given birth by June 8, 2005 but when she felt tightness in her abdomen and saw blood on her underpants, she went to the hospital. She was noted to have contractions and was placed on a fetal monitor. She was found to only be one to two centimeters dilated.

Later while in the labor room, the fetal heartbeat decreased. The doctor ruptured the membranes and thick meconium was noted. The baby was delivered by cesarean section. When he came out, there was no heartbeat for the first ten minutes of his life. On the fifteenth minute, a faint heartbeat was noted.

The baby was transferred to a neonatal intensive care unit. The doctors there diagnosed the child to have meconium aspiration syndrome, metabolic acidosis, pulmonary hypertension, seizure activity, hypoxic ischemic encephalopathy and anemia. On June 12, when no improvement was noted in the baby’s condition, treatment was withdrawn: the baby was taken off the ventilator and he was pronounced dead at 4:00 p.m.

The mother sued for medical malpracticeagainst the obstetrician who failed to deliver her baby even when she was already overdue. She sued for her own emotional distress and pain at the death of her fetus. But then the mother sued also as the legal representative of her son’s estate claiming that since he lived for those few days, he should be considered alive and thus, his estate can sue for his wrongful death due to the medical malpractice and negligence of the obstetrician who delivered him and of the hospital staff who failed to note that the baby was already in distress and should have been immediately delivered via cesarean section.

The obstetrician and the hospital staff filed motions for summary judgment asking for the dismissal of the complaint. A Bronx Personal Injury Lawyer said they produced the affidavits of two expert witnesses who both testified that the obstetrician and the hospital did not deviate from any accepted medical practice. They both affirmed that the treatment of the woman and of the baby was well within the standard of care prescribed by the medical profession. They also both affirmed that there was no way to predict or prevent fetal hemorrhage. The injuries and subsequent death of the baby was not caused by any deviation from good and accepted medical practice by the doctor or the hospital staff.

The two expert witnesses for the defendants differed in their assessment of whether or not the child was stillborn or born dead. A Brooklyn Personal Injury Lawyer said that one opined that the fetus had a heartbeat while still inside the uterus. It had a faint heartbeat that was not immediately noted.

The expert witness of the woman stated that the fetus was not born alive because it had no signs of life when it was completely expelled from the mother.

The Court that the motion for summary judgment should be denied when there exists any material issue of fact that must be tried. Here, the issue of whether the child was born dead or alive must be tried. On this issue hinges the fate of the cause of action of the child’s estate. If the child were born alive, then the cause of action for wrongful death filed by the child’s estate is legally viable. But if the child were born dead, then the mother’s own individual cause of action for emotional distress from her child’s stillbirth cannot be sustained as legally compensable if there is no physical pain directly sustained by the mother.

The Court upheld the denial of the motion for summary judgment.

A New York Medical Malpractice Lawyer must prove material issues of fact that must be tried before a jury. A New York City Medical Malpractice Lawyer must also prove that the doctor being sued failed to perform his duty in accordance with medically accepted standards. At Stephen Bilkis and Associates, their NYC Medical Malpractice attorneys are willing to sit with you and analyze the facts of your case. Their NY Medical Malpractice attorneys are available to render advice as to the viability of your claim for medical malpractice. Call Stephen Bilkis and Associates today.

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