Published on:

Physicians Claim They Did Not Depart from Reasonable Practices

An action for medical malpractice alleges that the medical professionals negligently departed from good and accepted standards of medical/obstetrical care and treatment and failed to give informed consent to a woman during her admission to a University Hospital relating to her pregnancy, labor and delivery of her infant.

It is further claimed that the physicians failed to provide the infant with proper medical care and treatment causing the infant to suffer serious and severe injury. It is claimed that the infant suffered preterm labor, brain damage, cerebral palsy, non-coordination of muscles, global developmental delays, respiratory distress syndrome; persistent pulmonary hypertension, chronic lung disease, translucent membrane disease, abnormally high pigment amount, stomach reflux, pronated lower extremities with difficulty walking, reactive airway disease, cognitive impairment and delays, communicative impairment and delays, difficulty seeing with his left eye, pervasive development disorder, autistic spectrum disorder, loss of enjoyment of life, social-emotional developmental delay, and impaired earning capacity. It is claimed that the infant has been caused to require early intervention services, physical therapy, occupational therapy, speech therapy, and may require custodial care, medical care including therapies and equipment and special residential accommodations and modifications.

A New York Injury Lawyer said it is noted in the University Hospital record that the mother of the child, then a twenty-eight year old female, was admitted with a diagnosis of premature labor, to the service of a female gynecologist. It was her second pregnancy with a prior confidential termination of pregnancy. She was noted to be 33 1/7 weeks pregnant and the infant was estimated to be about five pounds. She complained of feeling pulling in her upper abdomen followed by rupture of the membranes with clear yellow-tinged fluid. Fetal movement was reported well and there was no vaginal bleeding. She had been seen at a town hospital where she was ruled/in for rupture of the membranes and transported to the University Hospital. At the University Hospital, the plan was to monitor her for contractions and if persistent, proceed with medication for at least 48 hours to obtain maximum benefit of steroids for the infant’s lung maturity. The nurse’s note written indicates a family member alerted the nursing staff that the mother was in the bathroom with the umbilical cord hanging out. One nurse placed her hand to relieve pressure on the cord and another nurse called a doctor. She was transferred to the labor and delivery room and an emergent caesarean section was performed. The birth report indicates that a male was delivered. Resuscitation was noted and he was intubated. Uneven chest excursion was noted.

The mother testified to the effect that she saw a gynecologist for prenatal care for the subject pregnancy. She was at home with her sister-in-law when her water broke. She called her doctor and went to a town hospital right away. The gynecologist examined the mother and had her transferred to the University Hospital as there was no NICU at the town hospital. He advised her that she would be delivering within the week. Upon arrival at the University Hospital, she was seen by a female doctor, and then transferred to labor and delivery, where she was seen by a male doctor. A sonogram was performed. Her catheter, which had been inserted at the town hospital, was removed. She was attached to the monitor and was advised she could use the bathroom and was assisted by the nurse when she first used it, and thereafter was permitted to use it without assistance. Another sonogram was performed because she was cramping and she felt something when she was wiping herself when she went to the bathroom and saw blood. She thought it was the baby coming out. Her sister-in-law, who was visiting with her, went for help which took about five minutes. A nurse came and told her just to sit there and went to get other assistance. A couple minutes later, the nurse returned with a stretcher and several people. She was still on the toilet so they told her to get on the stretcher and to get onto all fours. A nurse then inserted her hand into her vagina to hold the baby’s head up from the cord. She was taken to the operating room and three days later she was told that her baby had a lot of lung problems, that he was intubated, and that he was critical.

A physician opines that cerebral palsy associated with prematurity is associated with indicative destruction of brain tissue seen on imaging studies or brain hemorrhage during or after birth. The records demonstrate that the child suffered from none of these conditions and his brain ultrasound tests were normal. A Brooklyn Personal Injury Lawyer said the infant’s toe walking improved and such physical improvement is not compatible with the diagnosis of cerebral palsy. Other symptoms related to PDD or pervasive developmental disorders include socialization and communication deficits. The child’s education support services consist of organizational skills and a child with low normal intelligence does not usually later improve to near genius IQ levels particularly if the child had allegedly suffered obstetrical brain damage. The physician opines that the medical records do not reflect any significant delay in reaching early developmental milestones. He further opines that there is overwhelming evidence that indicates that hypoxia-asphyxia was not present at the infant’s birth as he had an arterial cord blood pH and a base deficit which are not compatible with pH levels seen in asphyxiated infants, which would be a pH of less than the infant had during birth and a base excess of greater than the infant had. The Apgar scores of the infant during birth are also higher than the Apgar scores of an asphyxiated infant. Any oxygen desaturation suffered by the infant in the nursery was related to his translucent membrane disease and chronic lung disease due to the preterm birth rather than trauma or hypoxia.

Based on records, the court finds that the physicians have demonstrated legitimate entitlement to court ruling without trial dismissing the complaint on the issue that they did not depart from good and accepted standards of medical care and that they did not proximately cause any of the birth injuries which is claimed that the infant suffers from.

The complainants, in opposing the motions by the accused parties have submitted the affidavit of their expert physician. The affidavit is not notarized and therefore is not in admissible form to be considered. The mother and her infant have failed to raise factual issues on the issue of proximate cause of the claimed birth injuries to the infant in response to the opinions expressed by the physician and conclusion that the infant’s claimed injuries were not proximately caused by hypoxia or birth trauma.

The complainant’s expert has indicated that the opinions in the affidavit do not address any claimed anesthesia departures. Therefore, a Bronx Personal Injury Lawyer said no factual issue has been raised with regard to the doctors. Counsel for the complainant’s claims that they are not opposing the branch of the motions for summary judgment related to the physicians. The mother and her infant’s opposition are determined to be asserted against the physicians and resident doctors from the University Hospital.

A resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene. A private physician may be held vicariously liable for conduct of a resident physician where the resident is under the direct supervision and control of the private physician at the time of the conduct; the key is whether the resident exercises independent medical judgment.

The record supports that the physicians were each working under the supervision and control of their respective doctor mentors and only acted within the scope relating to what care and treatment was approved by the doctor mentors. The complainants have not raised a factual issue to preclude summary judgment dismissing the complaint as to the resident doctors.

Doctors are sworn to make sure that people are given the best treatment that medicine can offer. They make sure that they preserve life and provide patients encouragement and hope but if your experience otherwise while in the care of medical professionals consult a NY Medical Malpractice Lawyer or New York Injury Attorney from Stephen Bilkis and Associates.

Contact Information