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Plaintiff Claims Malpractice Due to Birth Injury

The infant was allegedly injured during her mother’s labor and delivery as a result of the accused party’s medical malpractice. The infant was born in 1999 in one of the hospitals by the State Health and Hospitals Corporation facility (HHC). The record reflects that the infant was admitted for shaking and possible seizure three weeks after birth in another hospital not affiliated with the hospital. The unaffiliated hospital records show that the mother told the doctors that the infant had been shaking since birth. Those records also show that the mother told the doctors that the infant had fallen on the floor when she was three days old and that there was some family history of epilepsy. Seven months after birth, a doctor from the unaffiliated hospital found that the infant has a seizure disorder.

Nine years after the infant’s birth, the mother and the infant moved for leave to serve a late notice of claim on the hospital. The mother alleged that the infant had suffered fetal distress but the hospital had allowed the mother to labor for 48 hours which resulted to the infant’s birth injury. In further support of the motion, the mother asserted in an affidavit that the hospital should have performed an emergency caesarean section. A New York Injury Lawyer said the mother stated that when the infant was born she was purple and she would shake all over her body and her eyes would roll back. She further stated that she had complained about the infant’s condition to the nurses at the time, but they told her nothing was wrong. Hence, the complainant asserted that leave to file a late notice should be granted because they had met their burden of showing that the hospital had actual, contemporaneous notice of the facts underlying the claim.

In opposition to the motion, the hospital asserted that its hospital’s records do not support the mother’s allegations that it allowed prolonged fetal distress and the complainants failed to attach an expert affidavit establishing a connection between any alleged complications during labor or delivery and the infant’s injuries. A Westchester County Personal Injury Lawyer said that more significantly, the hospital asserted that the records directly contradict the contention that there was anything wrong with the infant, or that they include any reference to the mother’s report of the infant’s shaking or rolling back of eyes. On the contrary, the hospital argued that the medical records established that the infant was a healthy newborn.

In reply, the complainants annexed the records from the affiliated hospital. The record certifies that three weeks after the woman was discharge from the hospital, the mother told doctors at the unaffiliated hospital that the infant had a history of seizures since birth. The mother annexed the affiliated hospital records to show that the infant has been documented as having suffered seizures since birth or her second day of life.

The motion court granted the motion to file a late notice of claim of the infant but denied the motion of the mother since it is time-barred. The motion court reasoned that the accused had actual notice of the facts underlying the claim. Hence, the court concluded that the delay in notice would cause the hospital only some prejudice in investigating the claim. The hospital appeals but the court finds that the hospital had no actual notice of the facts underlying the medical malpractice claim, and would be substantially prejudiced by receipt of the notice of the infant’s claim nine years after the alleged medical malpractice took place.

The motion court noted that the attending physician who admitted the mother and made the decision to induce labor is no longer employed at the hospital and the obstetrician who delivered the infant resides outside of the state. Therefore, the accused party’s ability to defend itself against the mother’s allegations is substantially prejudiced by the passage of nine years. Accordingly, the order of Supreme Court granted the infant’s motion for leave to serve a late notice of claim upon the accused parties should be reversed without costs and the motion denied.

In taking care of children, one must be very observant and keen. Any unusual observations especially injuries in children caused by other people should be properly addressed with the help of a New York Injury Attorney from Stephen Bilkis and Associates. When dealing with birth related actions, be sure to contact a NYC Birth Injury Accident Lawyer or a NY Medical Malpractice Attorney.

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