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Plaintiff Contends Physician Did Not Operate Under Proper Standard of Care


A medical malpractice action is premised upon the alleged negligence of the physicians relating to the care and treatment rendered to a mother and her infant son during their hospitalization at the hospital. It is alleged that the physicians negligently departed from good and accepted standards of care in treating the infant, commencing with his birth and continuing through his discharge proximately causing the infant to suffer serious and permanent injury.

The pediatrician seeks summary judgment dismissing the complaint on the bases that he appropriately evaluated the infant for hypoglycemia or abnormally low sugar level and that he appropriately ordered treatment and that he did not depart from the hypoglycemia protocol. He also claims that he fully complied with the standard of care during his treatment of the infant. It is further asserted that his care and treatment of the infant was not the cause of the infant’s alleged birth injuries.

A New York Injury Lawyer said the obstetrician seeks order without trial to dismiss the complaint as asserted against him on the bases that there is no evidence that he participated in the prenatal care and treatment of the mother, and therefore, the claims asserted against him pertaining to the prenatal period should be dismissed. He also contends that there is no evidence that he participated in the care and treatment of the mother other than between approximately 11:15 a.m. and 6:00 p.m. on May 23, 2003, and that any claims pertaining to any other time period should be dismissed. A fellow obstetrician contends that there is no evidence that he participated in the mother’s prenatal care other than one office visit on February 13, 2003, and a consultation on April 10, 2003, and therefore, all other claims asserted against him should be dismissed. Both obstetricians contend that the prenatal care and treatment provided to the mother was appropriate and within good and accepted medical practice, and that there is nothing that they did or did not do that proximately caused the infant to suffer the injuries claimed in the legal action.

In support of motion, A Queens Personal Injury Lawyer said the pediatrician has submitted an attorney’s affidavit, copies of the summons and complaint, his answer and the complainant’s verified bill of particulars; the complainant’s medical records; the affirmation of the pediatrician’s expert, an uncertified, partial hospital record; and the unsigned transcripts of the examination before trial of the pediatrician. The uncertified copy of the hospital record and the unsigned copy of the deposition transcript of the expert is not in admissible form. The court considered the pediatrician’s deposition transcript, as submitted by him, and as adopted by him, as accurate. However, even if the evidentiary submissions were in admissible form, it is determined that the pediatrician has failed to establish a legitimate entitlement to a court ruling without trial.

The pediatrician testified that the infant had a low blood sugar, which increased after feeding. He also stated that the record indicated that there was meconium stained fluid or newborn’s first feces after the infant was delivered, which meant the infant had a bowel movement when it was being delivered. A Suffolk County Personal Injury Lawyer said he then noted that there was meconium with delivery of the infant’s head. He continued that stress can cause meconium at any time during the pregnancy, not just terminal meconium. He stated that meconium is usually of no concern, as long as the baby starts breathing appropriately. He then testified that terminal meconium could be indicative of fetal distress. He stated that between 10 and 20 percent of deliveries had meconium. The infant was suctioned with a bulb syringe, and breathed with stimulation. He was admitted to the newborn nursery as opposed to NICU. He also testified that the mother of the infant had a history of high blood pressure and Lupus, and took 500 mg medications every 12 hours. Prior to delivery, the mother was administered Ampicillin as she was positive for strep B.

He further testified that there are conditions which alert the practitioner to potential problems in the infant. He set forth that hypoxia or oxygen deficiency and fetal hypoxia can cause meconium stained amniotic fluid, and that meconium can alert a physician to the possibility that the infant may have suffered some oxygen deficiency during labor and delivery. He testified that after delivery, the infant was seen by the neonatal nurse practitioner, who recommended routine care and blood glucose monitoring however, he did not have an understanding as to what, if any, indications there were for blood glucose monitoring after the infant was born. He continued that the newborn feces fluid would not be an indication for doing blood glucose monitoring, but that blood glucose monitoring is one way of evaluating how the baby is doing, and might be an indication of stress that the baby may have gone through. He continued that, physiologically, if there is stress, the baby would use up its glucose, and as a newborn, the infant may not have the mechanism physiologically to respond to the low glucose level. He stated that a low glucose level in a newborn infant can be consistent with the newborn having suffered some fetal distress. He believed he wrote his note, signed off on routine orders, and added that the hypoglycemic protocol be continued.

He further testified that he was not sure of the hypoglycemic protocol in existence at the time, and stated that all babies were getting blood sugars at one, two and three hours of age. He also thought that there might be a screening test, by heel stick, and the blood would be sent to the lab for confirmation. He thought the normal glucose level was approximately 40, plus or minus five, but the criteria changes and he did not know the criteria for 2003. He also testified that signs of hypoglycemia in the newborn would be listlessness and/or lethargy (just lying there, not responding or crying, attempting to feed but may not nipple), seizures, rapid breathing, and tachypnea or abnormal rapid breathing. He continued that apnea or absence of breathing could be a sign of hypoglycemia in a newborn infant. Prolonged hypoglycemia over an extended period can cause brain damage and seizures, as it would deprive the brain of the sugar that is needed for it to function. He stated that the blood sugar of 21 was abnormally low. The pediatrician states that did not know the glucose protocol at that time, but stated that the infant would be given glucose water or formula, and the blood sugar would then be repeated afterwards within the hour. If the infant did not respond, there would be an indication for starting an intravenous. He did not know the level the blood sugar was expected to rise to, to be satisfied that the infant responded, however, he felt 50 was an acceptable level. He did not know the time frame in which follow-up glucose levels were to be tested, or the time frame in which the glucose level should respond.

The pediatrician also testified that he did not consider starting an intravenous when he learned of the blood sugars on the morning of May 24, 2003. Thereafter, multiple attempts were made at starting an intravenous, peripherally, without success. He continued that if the nurse had been successful in starting the intravenous the infant would have been transferred to NICU at that time, but since the attempt was unsuccessful, the infant was not transferred. Thereafter, when he saw the infant’s blood sugar was responding, he did not consider transferring the infant to NICU. He continued that if the intravenous was not started, the infant should be fed more frequently, but he did not indicate how frequently or the times the infant was fed. At 1 p.m., the infant’s blood sugar was 29. He was not sure if that was an indication to transfer the infant to NICU or to have the infant seen by a neonatologist. He did not know if the glucose protocol called for intravenous dextrose, but stated that the glucose protocol, under certain circumstances, called for the transfer to the neonatal intensive care unit. However, he did not recall the protocol. At some point on the afternoon of the following day, the infant was transferred to NICU. There were no feedings between 2:00 a.m. and 10:20 a.m. The pediatrician testified that he did not have an understanding as to whether hypoglycemia in a newborn can lead to metabolic acidosis. He continued that there could be other causes for the metabolic acidosis, such as apnea, which leads to metabolic acidosis.

The attending physician of the mother ordered that a nurse practitioner be present for the delivery of the infant based upon the whole clinical picture including the woman’s being a 41 year old with chronic hypertension. The attending physician set forth the Apgar scores of the infant as 8/9, as evaluated by the nurse practitioner, who advised that the baby should be admitted to the normal newborn nursery, with glucose monitoring. The attending physician states that such glucose monitoring is a function of the hospital staff and any pediatric/neonatal consultants, and not the obstetrician. The attending physician opines that the fellow physician acted in accordance with good and accepted medical care and treatment in inducing labor to deliver the baby vaginally; that neither the biophysical profile with the non-stress test, nor any other results required delivery by caesarian section. The attending physician continues that the fetal monitor strips showed long term variability with no decelerations, however, the absence of decelerations is not supported by the fellow physician’s interpretation of the tracings, raising a factual issue.

However, the attending physician does not state how the fetal status was evaluated without the monitor tracings, or upon what he bases his opinion that the infant was not in distress, or the cause of the meconium at delivery.

Based upon the foregoing, it is determined that although the attending physician stated that there was no departure from the standard of care and set forth the events and progress of the pregnancy, labor and delivery, no opinion was stated as to the significance and indications of the non-reactive stress tests, the low biophysical assessment results, and the standard of care when such results are obtained. The attending physician has not commented upon the mother’s blood pressure during the pregnancy and labor although a history of hypertension has been noted, as well as on the vital sign sheet prior to delivery. The attending physician opines in a conclusive manner that although the fetal monitoring strips are missing for the indicated time periods, the mother and the fetus were appropriately monitored during those periods regardless of the availability of the strips. However, he does not state how the mother and the fetus were appropriately monitored. Importantly, the attending physician does not address the presence of meconium with the delivery of the infant’s head, thus raising a further factual issue concerning whether the infant suffered fetal distress prior to delivery. Such factual issues preclude court order without trial.

Accordingly, the motion for an order relating to granting summary judgment dismissing the complaint is denied.

Parents always want the best for their children. If your child experience pain and injuries because of other people’s negligence, consult a NY Birth Injury Lawyer or a New York Birth Injury Accident Attorney. When such negligence is a result of wrongful medical practice, call a NY Medical Malpractice Lawyer from Stephen Bilkis and Associates.

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