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New York Appellate Court Upholds Dismissal of Plaintiffs Birth Injury Claim


A woman who was pregnant first saw an obstetrician on January 2, 2004 for prenatal care. Two ultrasounds were performed on February 25, 2004 and again on April 21, 2004. These ultrasounds showed that the baby was growing normally. The third ultrasound on June 30, 2004 showed that the growth rate of the fetus was not the same. The ratio of the size of the head with the girth of the child around the abdomen was not within normal range.

On July 4, 2004, the mother’s water broke. She had a normal labor. She was hooked up to a fetal monitor and no signs of fetal distress were noted. While she was in labor, the umbilical cord of her baby was noted to be squeezed. The doctor ordered an emergency cesarean section.

A New York Injury Lawyer said when the baby was born, it cried spontaneously. His Apgar scores were normal. A sample of the blood from the umbilical cord showed that the gases in the blood were normal.

When the baby was transferred to the neonatal nursery, he nursed well and showed healthy color and muscle tone. There were no seizures and no other complications. Four days later, the baby went home with his mother.

The baby was generally healthy and he progressed well during his first year. A Long Island Personal Injury Lawyer said that in November 2005, the child suffered an eye condition. The pediatrician ordered a magnetic resonance imaging (MRI) test of the child’s brain and the results yielded a finding that the child had autism. In May 2007, the child had another MRI and the results were normal. The diagnosis of autism or pervasive developmental disorder remained.

The mother then brought a suit for negligence and medical malpractice against the obstetrician who gave her prenatal care and who delivered her baby. It was the mother’s contention that the doctor was negligent and that during his treatment and care of her while she was pregnant, the doctor deviated from accepted medical practice and this caused her prolapsed umbilical cord: the umbilical cord was squeezed by the baby’s head in the birth canal and caused the cord to come out ahead of the baby. The squeezing of the umbilical cord, according to the mother, caused the baby to have a low heart rate and low blood flow while he was lodged in the birth canal during labor and this caused him to develop autism.

The obstetrician and the hospital filed a motion for summary judgment alleging that the complaint should be dismissed for failure of the mother to prove any negligence or medical malpractice during her prenatal care and during her delivery. The doctors also argued that there is absolutely no evidence anywhere that the mother or her baby suffered lack of oxygen at all during the delivery. The only complication of the prolapsed umbilical cord cannot and does not prove any negligence or medical malpractice. The umbilical cord gases taken immediately after the delivery does not show that the baby suffered from lack of oxygen at any time of the labor or delivery. The tracings of the fetal heart monitor did not show any sign of fetal distress such as low heart rate or low blood flow that would support a conclusion that the child suffered from lack of oxygen in his brain at any time during the delivery.

There is also no sound evidence in medical knowledge that autism is caused by low blood flow or low blood oxygen while the baby is being delivered. A Staten Island Personal Injury Lawyer said there is yet no satisfactory medical explanation as to what causes autism in a child.

The trial court granted the motion for summary judgment and the mother appealed the dismissal of the complaint. She appealed the dismissal to the Supreme Court. The only issue raised is whether or not the complaint was properly dismissed.

The Court has held that in a motion for summary judgment, the doctor has to give preliminary proof that there is no evidence of negligence or medical malpractice. If the doctor succeeds in showing that, then the burden shifts to the mother to prove that there are still material issues of fact that have to be tried before a jury.

The plaintiff has failed to raise any issue of material fact which still needs to be tried before a jury and the Court upheld the dismissal.

A lawyer has the burden of presenting facts that would show negligence on the part of the doctor. They also have the burden of presenting facts that show that the doctor being sued deviated from accepted medical procedures. They also must show that the negligence or the medical malpractice was the proximate cause of the injury sustained by the mother or the child or both. At Stephen Bilkis and Associates, their legal team can sit with you to sift through facts to make sure that your complaint is sufficient. Call Stephen Bilkis and Associates today and schedule a free consultation.

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