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Infant Born With Impaired Eye Sight Due to Medical Malpractice


On 2 January 2004, infant-plaintiff’s mother first presented to defendant-doctor for prenatal care. The defendant-doctor determined that the mother’s estimated delivery date was 10 July 2004.

On 25 February 2004, an ultrasound was performed, which revealed that the fetus’ arithmetic ultrasound age was identical to its gestational age, as well as average measurements for weight, head size, abdominal circumference, and femur length.

A New York Injury Lawyer said on 24 April 2004, a second sonogram was again normal in all respects.

On 30 June 2004, a third and final sonogram was performed and revealed an arithmetic ultrasound age of thirty-five weeks and four days; the gestational age was thirty-eight weeks and five days. The sonogram also revealed that the ratio of head circumference to abdominal circumference was 1.09, outside the normal range of 0.92 to 1.05. The estimated fetal weight was 2482 grams.

On 4 July 2004, the mother reported to defendant-hospital after her membranes ruptured and was placed on a fetal heart monitor. At approximately 3:00 p.m., she was examined by a resident physician. A Long Island Personal Injury Lawyer said the physician reported that the infant-plaintiffs head was at the ischial spines or at the “0 station.” According to the examination before trial (“EBT”) testimony, she was not involved in the mother’s care beyond the 3:00 p.m. examination. However defendant-doctor testified that, at approximately 10:40 p.m., the resident physician called him and “asked what a cord prolapse felt like.”1 After receiving the call, defendant-doctor rushed to the mother’s room and examined her. Defendant-doctor confirmed that the umbilical cord had passed through the mother’s cervix and into her vagina before the baby, which presents a risk of compressing the umbilical cord and cutting off the baby’s oxygen and blood supply. Defendant-doctor ordered an emergency Cesarian section (“C-section”) and the mother arrived in the operating room at 10:54 p.m. In the operating room, the infant’s head was noted to be above the ischial spines at the “-2 station,” but in his EBT testimony, defendant-doctor claimed that the he probably erroraneously made that notation.

According to the mother’s EBT testimony, once in the operating room, a nurse placed her finger into her vagina. This was done in order to push the infants head up and relieve any pressure on the umbilical cord. At approximately 11:09 p.m., the infant-plaintiff was delivered via C-section with normal Apgar scores. The infant-plaintiffs cord blood gases were also normal.

In April 2006, infant-plaintiff was diagnosed with congenital motor nystagmus, an impairment of vision. In August 2006, infant-plaintiff, who was 21 months old at the time, exhibited developmental delays. In February 2007, his pediatrician believed that he had a developmental disorder and possibly autism. In March 2007, when infant-plaintiff was 2 years and 8 months old, his pediatrician noted that infant-plaintiff had pervasive developmental disorder (“PDD”). On 17 May 2007, infant-plaintiff underwent an MR1 of the brain, which was unremarkable.

On or about 27 August 2007, an action for medical malpractice was filed by plaintiffs, infant-plaintiff and mother, which centers on the prenatal care administered to and the delivery of the infant-plaintiff in June and July 2004. Plaintiffs allege that the infant-plaintiff suffered from hypoxic-ischemic brain injury during the prenatal and delivery period (birth injury or birth injury accident), which caused cognitive and behavioral deficits.

On 30 October 2008, after the depositions were complete, infant-plaintiff underwent an independent medical examination (“IME”) where it was concluded that infant-plaintiff demonstrated delays mostly in fine motor and in his personal-social skills, and mild or no delays in his gross motor and language skills.

Both defendants now, separately, seek an order granting them summary judgment and dismissing the action.

The party moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing “that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged.” A Manhattan Personal Injury Lawyer said to satisfy their burden, defendants must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. If the movant makes a prima facie showing, the burden shifts to the party opposing the motion “to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” Specifically, in a medical malpractice action, a plaintiff opposing a summary judgment motion must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiff’s injuries. In order to meet the required burden, the plaintiff must submit an affidavit from a medical doctor attesting that the defendant departed from accepted medical practice and that the departure was the proximate cause of the injuries alleged. The plaintiff’s expert opinion testimony must also be founded in facts in the record, not merely consisting of general or conclusory statements of negligence, in order to rebut defendant’s prima facie showing. On the other hand, a defendant hospital that is seeking summary judgment in a medical malpractice action may also argue that the alleged malpractice was committed by a private attending physician or by hospital staff under the “directions of the attending physician.” In such circumstances, the “hospital is sheltered from liability.” However, a hospital “may be held concurrently liable with a private physician for the independent negligence of its medical staff.”

Defendant-doctor relies on the affirmations of two physicians. While defendant-hospital argues that it is not liable for malpractice, if any, because its staff acted under the direction of defendant-doctor, a private attending physician. It also relies on the affirmations of three physicians.

In opposition, plaintiffs rely on the affirmations of three physicians.

In the first affirmation, the medical expert maintains that plaintiff first exhibited signs of distress on 30 June 2004, when the third sonogram was taken. The sonogram manifested that the estimated fetal weight was below normal and sets forth that it was below the fifth percentile. He notes that the ratio of head circumference to abdominal circumference was also below normal. The medical expert states that these characteristics clearly indicate the presence of intrauterine growth restriction (“IUOR”); that “hypoxia caused by placental insufficiency is one of the most significant problems found in infants with IUOR”; therefore, the infant-plaintiff should have been delivered immediately. The medical expert maintains that it was a deviation from the standard of care to postpone delivery until spontaneous birth. As to the care rendered at NYU on 4 July 2004 prior to the delivery, the medical expert notes that the infant-plaintiff was at “0 station” after the resident physician’s examination at approximately 3 p.m. and then at the “-2 station” in the operating room at approximately 10:54 p.m. the medical expert asserts that the fact that the infant-plaintiffs head went from a low position to a high position is evidence that “outside force acted upon it.” The medical expert maintains that this force was from a pelvic examination administered by the resident physician sometime before the umbilical cord prolapse. He asserts that this newly created space allowed the cord to prolapse and was the result of a deviation from the standard of care. The medical expert further asserts that hospital staff should have immediately elevated the infant-plaintiff’s head once an umbilical cord prolapse was diagnosed in order to take pressure off the umbilical cord. He notes that the mother testified that a nurse did not do so until fourteen (14) minutes after the cord prolapse, which was a deviation from the standard of care. The medical expert also maintains that between 10:40 p.m. and 10:55 p.m., a series of deep variable decelerations were apparent on the fetal monitoring strips, which indicated that the umbilical cord was being compressed. With respect to the normal Apgar scores and normal gases measurements, the medical expert asserts that hypoxic brain injury can occur without any “grossly obvious clinical signs in the neonatal period.” He maintains that Apgar scores only measure catasphrophic losses of oxygenation.

In the second affirmation, the medical expert maintains that infant-plaintiff has sensory motor integration deficits and fine motor delay that are the result of brain injury and are not related to his vision impairment.

In the third affirmation, the medical expert notes that infant-plaintiff has significant cognitive and development delays, but she asserts that he is not suffering from PDD. The medical expert maintains that the infant-plaintiffs delays and deficits are consistent with hypoxic-ischemic brain injury.

In view of the above, as to plaintiffs’ allegations of medical malpractice, the court finds that defendants have met their prima facie burden. Their experts’ affirmations eliminate material allegations of malpractice and causation by sufficiently detailing the infant-plaintiffs prenatal and postnatal course as normal and by describing how the infant-plaintiffs current condition is unrelated to brain injury. Nonetheless, plaintiffs’ experts have adequately offered an alternative theory as to the cause of infant-plaintiff’s undisputed developmental delays.

Hence, summary judgment is denied.

On the issue of vicarious liability for medical malpractice of defendant-hospital, plaintiffs’ expert has pointed to several facts that support plaintiffs’ contention that a defendant-hospital’s staff member performed a negligent pelvic examination that proximately caused the infant-plaintiffs injury. Taking this allegation to be true, there is no indication that the manner in which the pelvic examination was conducted was directed by defendant-doctorz. It is an independent act of alleged negligence.

Hence, summary judgment is not warranted.

On defendants’ complaints in their replies about the factual inferences drawn by plaintiffs’ experts concerning the credibility of evidence, it must be noted that it is not the court’s function on a motion for summary judgment to assess such credibility.

Birth injuries sustained as a result of a medical malpractice is always heart-breaking. No person in their right mind could bear seeing a baby suffer an injury which will most likely be a permanent damage. If you want to know more about these types of cases and what you can do about it, consult with Stephen Bilkis & Associates. The best New York Medical Malpractice Attorneys or New York Birth Injury Attorneys, among others, will assist you and help you with your queries.

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