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New York Appellate Court Orders New Trial in Birth Injury Case


A pregnant woman who was receiving prenatal treatment at a clinic came to the emergency room of a university hospital on March 29, 1997 complaining of leaking amniotic fluid. The residents and interns attended to her by taking her medical history and interviewing her. A licensed obstetrician saw the pregnant woman and conducted tests on at vaginal fluid but found negative results. They also performed a test to determine if the amniotic fluid was sufficient and they found the amount of amniotic fluid to be normal. A fetal heart monitor was used to check if the baby was distressed but the fetus was active and its heart beat was normal. She was discharged. She was also advised to rest and go to the clinic on March 31, 1997.

When the pregnant woman went back to the clinic as she was instructed, they confirmed the findings of the university hospital staff that there was no leak in her amniotic fluid. All her vital signs were normal as were her fetus’s heart tones. A New York Injury Lawyer said she was ordered to return for an ultrasound after two days so that she can present her employer with a medical certificate for her two-day absence from work. She was told to return for her scheduled follow-up visits after a week or on April 7, 1997.

But a day after her visit to the clinic, on April 1, 1997, the pregnant lady went back to the emergency room. The obstetrician on duty determined that the lady’s bag of water had already broken. She was admitted into the hospital and given antibiotics to forestall any infection. She was also given medications to prolong the pregnancy. At that time, the pregnant lady had no fever. She stayed in the hospital for two more days. On April 3, 1997, she gave birth. Her placenta and her bag of waters were tested and the tests revealed that the pregnant lady had a mild infection of the amniotic lining.

The baby had to be ventilated and was given antibiotics to forestall any sepsis. A Queens Personal Injury Lawyer said that after five days and no infection was noted, the antibiotics were stopped. When the baby’s skin turned yellowish, it was given phototherapy and the mild jaundice was resolved. One week after birth, the baby had difficulty breathing and its heart rate slowed. They started antibiotics again and it was determined that the baby was suffering from meningitis. The baby was discharged from the university hospital on May 28, 1997.

The baby was diagnosed to experience apnea (breathlessness while asleep). The child was also diagnosed to have an obstruction in the intestines and had to undergo surgery to correct the problem. Because of the meningitis, the baby experienced seizures within the first three months of birth but the seizures have not recurred. The child was screened for vision and hearing and found some abnormalities. They advised the mother to present the baby for outpatient follow-up.

The woman then sued for medical malpractice the university hospital and the doctors, interns and residents who treated her there for the two times she came to the emergency room. She also sued the obstetrician who helped deliver her baby and the pediatricians and residents and interns who took care of her baby in the neonatal intensive care unit. She claims that the doctors were guilty of medical malpractice for failing to timely and correctly diagnose that she had an infection in her amniotic sac lining. They also committed medical malpractice for failing to give her enough antibiotics to kill all the bacteria present in her amniotic fluid. She claims that the insufficient antibiotics that failed to kill the bacteria in her amniotic fluid was the direct cause of her baby’s contracting meningitis. She also sued for medical malpractice the pediatricians, residents and interns claiming that their negligence in caring for her baby caused him to develop brain damage and other neurological disabilities.

The residents and interns moved for a summary judgment asking dismissal of the medical malpractice case against them as they were just students at that time. They did not treat the pregnant lady apart from taking her medical history and merely executing the orders of the attending physicians. The plaintiff did not object to the motion so the motion was granted.

The obstetrician who examined her when she presented herself for the first time at the emergency room when she complained that her amniotic fluid was leaking also filed a motion for summary judgment asking that the case against them be dismissed because they did not deviate from accepted medical practice. The plaintiff did not oppose this motion. The Court found that there was no evidence of infection of any kind at the time that the lady first presented herself at the emergency room and so, the Court dismissed the case against them.

The obstetricians who delivered her baby also moved for a summary judgment asking for the summary dismissal of the case against them as they did not deviate from accepted medical practice. A Suffolk County Personal Injury Lawyer said the plaintiff vigorously opposed this motion claiming that the obstetricians failed to give her sufficient antibiotics when she came into the emergency room for the second time. She claims that this is the direct cause why the bacteria that caused her infection thrived and infected her baby as well, although her baby’s infection did not manifest until after a week from birth.

The Court ruled that the plaintiff has raised a question of material fact that must be tried by a jury. The obstetricians’ motion for summary dismissal was denied. The Court ordered that trial on this sole issue of material fact ensue in the lower court.

Part of the job of a lawyer is to determine whom to sue. Not all doctors in an emergency room who had contact with a patient can be sued. A skilled attorney also has to plead only those material facts that show negligence or deviation for accepted medical practices. At Stephen Bilkis and Associates, our legal team can help you assess the facts of your case.

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