A woman was found to be pregnant and she went for an ultrasound. It was determined that she was carrying twins. The pregnant woman opted for a home birth instead of giving birth at a hospital. She wanted to be assisted by a midwife and nurses.
A New York Injury Lawyer said she nurse/midwife who had her own clinic and lying-in clinic diagnosed one of the twins to have a weak heart sound: the baby’s heart rate decelerated at times. The nurse/midwife recommended that a follow-up sonogram be done at a hospital. The hospital found that the baby’s heart rate had already stabilized. The woman wanted to give birth at the hospital but she also wanted to be assisted in the birth by her own nurse/midwife. The doctors at the hospital told her that her nurse/midwife did not have credentials or birthing privileges at their hospital. They told her that if she were to decide to give birth at the hospital, she would be cared for by one of the obstetricians on their staff.
The woman left and her pregnancy progressed. She stuck it out under the care of the nurse/midwife. She gave birth at her home on July 1, 2004. One of her twin babies was stillborn. The death certificate as filled out by the nurse/midwife listed the cause of death as undetermined.
The mother and the father of the dead twin sued the nurse/midwife for medical malpractice. It is their contention that the child sustained a birth injury which caused his death. They included in the suit all the nurses who attended the birth as well as the birthing/lying-in clinic where all the nurse/midwives and nurses were all employed.
One of the nurses filed a motion for summary judgment. She asked that the complaint against her be dismissed on the ground that she was a mere student-nurse at the time and she was more of an observer and not an active participant in the birth. A Manhattan Personal Injury Lawyer said she said she was the photographer and she wrote down entries in the birth log. She also admitted to having injected Pitocin into the mother after her delivery to prevent hemorrhage. She claims that there is no tie between her and the nurse/midwife or the firm. She never attended or assisted in the actual birth and had no contacts with the mother or the dead child.
The nurse submitted an affidavit of a board-certified maternal-fetal specialist. He opined that the death of the child can be attributed to the failure of the nurse/midwife to document the fetal heart rate during the home birth. A Queens Personal Injury Lawyer said he also asserted that the nurse who filed the motion for summary judgment had no role in the pre-natal or post-natal care of the mother or the twins. The injury which caused the death of the twin cannot be attributed to any of the acts of the nurse.
The birth mother stated in her deposition testimony that the nurse actively participated in the home birth. She resuscitated the twin that died. The co-owner of the birthing clinic who was also present during the home birth asked for the nurse’s opinion: she asked the nurse’s opinion if the mother should be transported to the nearest hospital seeing that there were complications with the birth. From this, the birth mother insists that the nurse was present at the birth more than as a mere student/observer or photographer.
The only question was whether or not the nurse has proven that she is entitled to a summary judgment of dismissal.
The Court first reiterated the rule that the person who moves for summary judgment has the burden of proving that there are no material issues of fact that need to be tried before a jury. Her burden was to prove that she did not depart from good and accepted medical practice or that the mother and her child were not injured by any of her acts.
The mother submitted not only her deposition testimony as to the extent of the actual participation of the nurse; she also submitted an affidavit of an expert. The expert stated that the nurse was present at the birth as a registered emergency nurse. Her expertise is in the field of trauma. It was her duty to determine if the mother or the babies’ condition necessitated being transferred to a hospital because of the inadequacy of the home birth setting to deal with the complications of the birth. When she failed to assert that the mother should be brought to the hospital, her failure to act caused the child’s death.
It cannot be denied that there are material issues of fact that have to be tried. The question of the extent of the participation of the nurse; what her actions were; what her omissions were; these are all material issues of fact that have to be tried.
Did you give birth like the woman in this case and your child was stillborn? Are you wondering if you have a cause of action for medical malpractice? You need the assistance of a New York City Birth Injury Lawyer to help you assess the viability of a bringing a medical malpractice case. A New York Birth Injury lawyer can help you present the facts and the evidence in your case. At Stephen Bilkis and Associates, their NYC Birth Injury attorneys are ready to represent you and argue in your behalf. Call Stephen Bilkis and Associates today and speak to any of their NY Birth Injury attorneys.