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Plaintiff Brings Medical Malpractice Claim for Failure to Diagnose, NY Appellate Court Finds for Plaintiff


These are two consolidated cases of pregnant women who gave birth to stillborn babies because of the medical malpractice and negligence of their obstetricians.

A New York Injury Lawyer said in the first case, the woman was under the care of an obstetrician and a nurse-midwife. At 1:45 am. Of September 25, 1994, the pregnant woman called the nurse-midwife to inform them that her bag of waters had broken and that there was a lot of blood. They were instructed to go to the birth center.

The couple arrived at 3:00 a.m. at the birth center and while there, she expelled some more blood. The pregnant lady wondered aloud to the nurse-midwife if she should go to the hospital across the street for emergency treatment. The nurse-midwife called her obstetrician who ordered that the pregnant lady be transported to a hospital in Manhattan.

When the pregnant lady and her husband arrived in Manhattan, it was 3:45. They had to wait for the doctor who arrived forty-five minutes after. The doctor detected a slowing of the baby’s heartbeat. But instead of immediately performing a cesarean section, the doctor performed an ultrasound. By the time the ultrasound was performed, the baby had no more heartbeat. Still thirty minutes passed before the baby was finally delivered by cesarean section and it was born dead. The pregnant lady’s placenta had ruptured and caused the fetus to die before it was extracted.

The pregnant lady and her husband then sued the obstetrician and the nurse-midwife for medical malpracticeand for negligence for failing to properly and timely diagnose her placental rupture and for failing to timely perform a cesarean section which could have saved her baby’s life. The woman claimed damages for emotional distress at the loss of her baby but she alleged no direct injury to herself. The doctor and the nurse-midwife moved for a summary judgment of dismissal on the ground that the woman failed to allege any direct physical injury to her and so she cannot sue for damages due to her emotional distress at the injury sustained by her baby only.

In the other case the pregnant lady was told by her obstetrician in August 1999 that she was carrying twins. At the end of October during a follow-up visit that she was experiencing lower abdominal pain and cramps. The obstetrician performed an ultrasound and told her that one of the twins was pressing against her sciatic nerve. A Suffolk County Personal Injury Lawyer said two days after that the pregnant lady called her doctor and told him that she had intense pelvic pain and nausea. The doctor just told her to lie down to relieve the pressure on her sciatic nerve. He told her that her nausea was probably due to something she ate.

Two hours after she called her doctor, the lady sat in the toilet and one of the twins popped out of her. They called an ambulance and the pregnant lady with her baby still attached to her by the umbilical cord was rushed to the hospital. In the hospital, she delivered the other twin. Both died at only eighteen weeks of gestation.

Other doctors diagnosed the pregnant lady and found her to have an incompetent cervix. She had surgery to repair her cervix to prevent the premature explusion of the fetus. A year after the surgery, the lady gave birth to a premature baby girl.

The pregnant lady and her husband brought suit against the obstetrician for medical malpractice and for negligence for his failure to correctly diagnose the condition of her cervix. She claimed damages for the emotional pain she suffered from the loss of viable babies that she lost because the doctor failed to treat her in accordance to the level of care dictated by accepted medical practices.

The doctor also filed a motion for summary judgment asking for the dismissal of the complaint for damages arguing that since the mother did not claim and direct physical injury sustained by her, she cannot recover damages for the emotional distress brought about by the still birth of her babies even if the doctor were found to be guilty of medical malpractice and negligence.

These two cases are on appeal and the Supreme Court decided to decide them jointly. The Supreme Court decided to overturn the ruling they had made in 1985 where they proclaimed that a mother cannot recover for emotional distress when her doctor’s medical malpractice caused her to miscarry or to give birth to a stillborn child if she does not also show that she suffered a physical injury separate from the suffering of her fetus and which is not a normal incidence of childbirth.

The Court refused to apply this twenty-year old ruling to these two cases stating that they can no longer defend the logic or ruling in that old case. A Manhattan Personal Injury Lawyer said they pointed out the discrepancy created by that ruling: babies who are injured while they are still in utero can sue the doctor for negligence and medical malpractice provided they survive the pregnancy. But babies who die in the womb or are miscarried or are delivered stillborn cannot sue for the pain and injury they sustained. Their mothers cannot sue for the emotional distress of losing the baby if she does not show any other physical injury she sustained apart from childbirth.

In these two cases, the Supreme Court ruled that if the stillborn, miscarried baby cannot sue, then the mother can because the injury was done to the mother. The Court found that an obstetrician owes a duty both to the woman and to the baby she was carrying to make sure that he exercises care in their treatment. When a fetus is injured in the womb and dies as a result or is miscarried, there is a breach of the obstetrician’s duty of care to the patient (the mother). The mother is therefore entitled to recover damages for emotional distress.

A New York Medical Malpractice Lawyer has the duty to prove negligence or medical malpractice on the part of the obstetrician. The NY Medical Malpractice Attorney must show that the doctor deviated from accepted medical practice and this resulted in the injury to the fetus which caused its death. Thanks to this 2004 ruling, the NYC Medical Malpractice Lawyers at Stephen Bilkis and Associates need no longer prove a separate and direct physical injury to the mother for her to recover damages for the death of her fetus. Call Stephen Bilkis and Associates today. Speak to any of their NYC Medical Malpractice attorneys and ask for their assistance to bring a claim for medical malpractice against a negligent obstetrician.

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