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Woman Files Medical Malpractice Suit for Birth Injury


A woman was diagnosed to have Rh-negative blood. She conceived and gave birth to a baby in 1982 which had Rh-positive blood. A New York Injury Lawyer said to prevent the mother from having an immune reaction to Rh-positive blood in her baby’s body, she was given RhoGAM. This medicine’s sole purpose was to prevent the mother’s body from producing antigens that will attack the blood of any future babies she will conceive the way her body would fight off any harmful virus or bacteria.

When the woman conceived and gave birth to her second child in 1984, her baby also had Rh-positive blood. The woman repeatedly asked her second obstetrician to give her a shor of Rho-GAM so that she will not have a reaction to the Rh-positive blood of any child she conceives in the future. The second obstetrician refused and failed to give her a RhoGAM injection. He told her that she didn’t need it.

In 1987, the woman conceived her third child. When she gave birth to her third child, she had a blood disease and pulmonary problems. These health problems of her third child were directly the result of the second obstetrician’s failure to inject her with RhoGAM after she gave birth to her second child. When the second obstetrician refused and failed to inject her with RhoGAM, her body developed antibodies against Rh-positive blood. Her body produced antigens that attacked her third baby thinking that her third baby’s blood was a harmful pathogen.

The woman filed a complaint in behalf of her third child for medical malpractice against the second obstetrician and the hospital whose staff failed and refused to inject her with RhoGAM. The woman and her husband contend that his negligence and medical malpractice directly caused the injury to their third baby.

The woman also included as causes of action in her complaint, for her own claim for damages for the personal emotional distress she suffered. She also included a cause of action for her husband’s emotional distress.

The obstetrician and the hospital both filed a motion for summary judgment asking that the complaint in its entirety be dismissed. A Queens Personal Injury Lawyer said they claim that since the alleged injury to the mother was sustained by her in 1984, she cannot claim for it in 1987 as it is barred by lapse of time. Also, they claim that they cannot be made liable for injury to the mother which resulted in injury to the fetus when the injury to the mother was allegedly committed years before the fetus was even conceived.

The court granted the motion for summary judgment which is now the subject matter of this appeal. A Suffolk County Personal Injury Lawyer said the only question presented before the Supreme Court is whether or not the complaint was filed beyond the time limit prescribed by law.

The Supreme Court sustained the order of the trial court granting the motion for summary judgment and dismissing the complaint.

The Court held that the woman can claim an exception to the statute of limitations if there was any fraud, misrepresentation of deception on the part of the obstetrician and the hospital to induce her to delay the filing of her claim. Since there is no such claim of fraud, the complaint does not fall under this exception; it is time-barred.

The Court also noted that another exception to the statute of limitations is when a patient discovers a doctor left behind a foreign object in her body after surgery. The patient is given one year from the date of discovery of the foreign object to file a complaint for damages. Since this is not the case here, this exception does not apply either.

The Court also held that the negligent act and medical malpractice consists of an injury to the mother in 1984 which resulted in injury to her fetus which was conceived only in 1987. Under the law, there can be no recovery for injuries sustained by the mother which affected a fetus which was not yet in utero at the time of the injury to the mother.

A New York Medical Malpractice Lawyer needs to prove that a doctor failed in his duty to treat his patient with care. A New York City Medical Malpractice Attorney also needs to prove that in treating the patient, the doctor deviated from accepted medical practice. Most important of all, a NYC Medical Malpractice lawyer has to see to it that the complaint is timely filed. Call Stephen Bilkis and Associates today. Speak to any of their NY Medical Malpractice attorneys. Do not put off your right to claim compensation for your legal injuries. At Stephen Bilkis and Associates, their New York City Medical Malpractice lawyers are willing to assist you.

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