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Plaintiff Sues Doctor for Severe Birth Injuries, NY Appellate Court Denies Defendant’s Summary Judgement Motion


A dermatologist was pregnant. Three weeks before she gave birth, dermatologist reported to her obstetrician that she had been experiencing abdominal pain, vomiting and she could not hold any food down. The woman had lost weight during the last few weeks of her pregnancy instead of gaining weight.

A New York Criminal Lawyer said the dermatologist was diagnosed with an infected gall bladder and gall stones at the time that she delivered her baby. The obstetrician claims that the mother made no such complaints to her. She claimed in her deposition that the pregnancy proceeded uneventfully.

The dermatologist had to undergo a cesarean section. In the delivery room, the circulating nurse noted on the chart that the amniotic fluid was clear. The obstetrician made a handwritten note on the margin of the delivery report that there was no meconium present. An intern at the neonatal intensive care unit where the child was transferred after his cesarean delivery noted that meconium was present.

The dermatologist, however, insisted that when the baby came out, it was covered with thick brown goo. The dermatologist claims that her gall bladder infection and her gall stones which the obstetrician failed to diagnose in time caused her baby to be distressed. The baby’s distress caused it to pass meconium while still in the uterus and this is what caused the child to have breathing difficulties. The dermatologist claimed that her baby had aspirated the meconium into his lungs because of the prolonged distress he suffered.

After the baby was extracted from the mother, the doctor had to ventilate the baby. A Queens Personal Injury Lawyer said the baby was bluish, pale and could not breathe well. The baby’s mouth had to be suctioned but they also felt the urgency to use four kinds of suctioning procedures in order to remove as much fluid from the baby for fear that the child had ingested or aspirated something. The only kind of suctioning that the staff at the hospital did not do is the endotracheal suctioning. The dermatologist insisted that had the staff performed this deep kind of suctioning, they would have removed the fluid or meconium which eventually got aspirated deep into the right lung of the baby.

Days after the child had been delivered; he still had difficulty breathing so the doctors ordered an x-ray. The x-ray indicated some sort of growth which the pulmonologist suspected as a tumor or cyst. The pulmonologist suggested that a CT-scan be performed on the child.

A CT-scan requires the child to be immobile during the procedure. So the radiologist informed the dermatologist that her baby will have to be anesthetized during the CT-scan. The dermatologist expressed concern about using general anesthesia on the baby because the baby was already having breathing difficulties. The radiologist agreed to try to get the baby to sleep without general anesthesia but if she cannot then she will have to use the anesthesia Propofol. The radiologist went ahead and intubated the baby so that he received oxygen directly into his lungs during the CT-scan. When the scan was almost over, the baby started having seizures. The radiologist gave the baby another dose of the Propofol instead of giving the baby Phenobarbital which is the usual first aid to stop seizures. The baby was not given Phenobarbital until the baby was returned to the neonatal intensive care unit and had another seizure there.

Later the baby was diagnosed to be blind, suffering from cerebral palsy, brain damage and lung damage. A Staten Island Personal Injury Lawyer said the dermatologist sued the obstetrician for medical malpractice and negligence. She claimed that her failure to treat her gall bladder infection distressed her baby and caused it to pass meconium while it was still in her uterus. The dermatologist sued the hospital for medical malpractice and negligence for the failure of its staff to remove the meconium the baby had aspirated and for not effectively suctioning out the meconium but instead, driving it deeper into the baby’s lungs.

The dermatologist also sued the pulmonologist who recommended the CT-scan for medical malpractice and negligence: he failed to properly diagnose the problem with her baby’s lungs. She also sued the radiologist who performed the CT Scan for medical malpractice and negligence. She blamed the radiologist’s use of anesthesia on a child who was less than a month old. She blamed the radiologist for aggravating the child’s brain injury when the anesthesia she used caused the seizures.

The hospital filed a motion for summary judgment asking that the complaint be dismissed seeing as there is no proof that it was negligent in its care of the child or that in their treatment of the child they deviated from accepted medical procedure.

The doctors also moved for a Frye hearing. They question the dermatologist’s theory of how her baby got injured and they also question whether her complaint sufficiently establishes their liability.

With numerous affidavits of experts, the Supreme Court ruled that there are material issues of fact that have to be tried before a jury. These issues of fact include: whether the baby passed meconium at birth; whether the baby aspirated meconium; whether the baby’s seizures were caused by the anesthesia used; whether the anesthesia used caused more seizures to occur; whether the seizures exacerbated the baby’s brain injury.

The Court ruled that sufficient cause was raised in the complaint, which if proved, could render the doctors liable for medical malpractice and negligence.

A New York City Medical Malpractice attorney must prove that the doctors and the hospital sued were negligent. A NYC Medical Malpractice lawyer must also prove, in the alternative, that while treating your child, they deviated from accepted medical practices. At Stephen Bilkis and Associates, their NY Medical Malpractice attorneys will assist you in assessing whether the facts of your case can sustain a complaint for medical malpractice. Call Stephen Bilkis and Associates, speak with any of their New York Medical Malpractice Lawyers and begin the process of claiming just compensation for the injury your loved one sustained.

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