Birth Injury

Published on: July 19, 2020

New York Court Discusses Dismissal of Untimely Medical Malpractice Claims Against Public Corporations

Birth injury cases, like all other civil lawsuits, must be filed within the statute of limitations. Additionally, when the defendant is a public corporation, there are strict time constraints regarding when a claim must be filed and served in addition to the normal statute of limitations, and if the plaintiff fails to file a claim in a timely manner, he or she may waive the right to recover compensation. This was shown in a recent case in which a child suffered a birth injury due to malpractice committed by an obstetrician-gynecologist at a hospital that was a public corporation. If your child suffered a birth injury because of negligent acts during delivery, it is prudent to discuss your harm with a dedicated Syracuse obstetrician-gynecologist malpractice attorney as soon as possible to assess what claims you may be able to pursue.

Facts of the Case

It is reported that in July 2007, the plaintiff mother presented to the defendant hospital, which was a public corporation, for the birth of the plaintiff infant. The plaintiff infant was delivered through an emergency cesarean section, and during the delivery, he suffered brain injuries. Thus, in February 2012, the plaintiffs served a notice of claim on the defendant, and in December 2012, the plaintiffs filed a medical malpractice lawsuit against the defendant. Subsequently, in January 2017, the plaintiffs filed a motion for leave to serve a late notice of a claim or to have late notice deemed timely, and to strike the defendant’s defenses that the plaintiffs’ claim was untimely. The court denied the plaintiffs’ motion and directed that the plaintiff’s complaint should be dismissed. The plaintiff then appealed.

Pursuing Medical Malpractice Claims Against Public Corporations

In New York, the law requires that a court considering whether to deem a late notice of a claim timely served must weigh, among other factors, whether the public corporation received actual notice of the claim within ninety days of when the claim accrued or shortly thereafter. The court should also consider whether the plaintiff presented a reasonable excuse for failing to serve a timely notice of the claim and for the delay in seeking permission to file a late notice of the claim and whether the public corporation suffered substantial prejudice in defending the case on its merits due to the delay.

Published on: March 30, 2020

Court Discusses the Grounds for Dismissing a Medical Malpractice Case in New York Via Summary Judgment

by DeFrancisco & Falgiatano

There are few things more devastating than suffering the loss of an infant prior to birth, and when the death is caused by negligent medical care, parents often wish to hold the incompetent care providers accountable. Thus, many parents of infants who lost their lives due to inadequate care choose to pursue medical malpractice claims. Even if parents have valid claims, however, their case may nonetheless be dismissed if not properly asserted or supported. A recent New York appellate court opinion in which the court affirmed the dismissal of the plaintiff’s ob-gyn case highlighted the importance of thorough and aggressive representation. If you suffered the loss of your child due to incompetent treatment by an obstetrician-gynecologist, it is in your best interest to meet with a skillful Syracuse obstetrician-gynecologist malpractice attorney to discuss what you must do to recover damages.

Factual and Procedural History of the Case

Allegedly, the plaintiff presented to the defendant hospital for treatment during her pregnancy. While she was at the defendant hospital, she underwent diagnostic tests, including a sonogram, pelvic examination, and fetal monitoring, all of which indicated that her unborn child was not in distress and that the plaintiff was not in labor. Unfortunately, however, the plaintiff’s child died prior to the plaintiff giving birth. The plaintiff proceeded to commence a medical malpractice lawsuit against the defendant, arguing that the defendant’s negligence led to her child’s demise. The defendant moved to dismiss the case via summary judgment. The court granted the defendant’s motion, after which the plaintiff appealed. On appeal, the appellate court affirmed the trial court ruling.

Grounds for Dismissing a Birth Injury Case Via Summary Judgment

On appeal, the court explained that the plaintiff’s case was dismissed due to insufficiencies in the plaintiff’s pleadings and expert affidavit. First, the court noted that the expert affidavit set forth a new theory of liability in response to the defendant’s motion for summary judgment, which was impermissible. Further, the court stated that irrespective of the new theory of liability, which was not considered, the plaintiff’s expert affidavit failed to establish that a material issue of fact existed so as to require a trial. Specifically, the plaintiff’s expert did not address the conclusions or opinions of the defendant’s expert with regards to the sufficiency of care the plaintiff received when she presented to the defendant hospital. Further, the court found that plaintiff’s expert’s opinion that the plaintiff’s child would not have died in utero if the plaintiff performed certain tests was conclusory. As such, the court found that the plaintiff’s expert failed to establish a nexus between the harm suffered and the alleged malpractice.

Published on: October 31, 2019

New York Court Discusses Avoiding Dismissal of a Malpractice Claim

by DeFrancisco & Falgiatano

When a child suffers harm at birth, it is often due to the negligence of the doctor that cared for the mother during her pregnancy or the doctor that delivered the child. Thus, if it can be established that the doctors failed to provide appropriate care, the child and his or her parents may be awarded damages. If a defendant ob-gyn establishes that the care he or she provided was adequate, though, the plaintiff’s case may be dismissed. Recently, a New York appellate court discussed the shifting burdens of proof in medical malpractice cases and what the plaintiff must prove to avoid dismissal via summary judgment. If you or your child suffered harm due to the negligence of your ob-gyn doctor, it is wise to consult a capable Syracuse ob-gyn malpractice attorney regarding what you must prove to recover compensation.

Facts of the Case

It is reported that the plaintiff filed a medical malpractice claim against two groups of defendants on behalf of her infant son. Specifically, the plaintiff alleged that the negligent care of the collective defendants caused the minor plaintiff to suffer injuries due to a premature birth. The parties conducted discovery, after which each group of defendants moved for summary judgment. The court granted the defendants’ motions, after which the plaintiff appealed.

Avoiding Dismissal of an Ob-Gyn Malpractice Claim

It is well established that a plaintiff seeking to recover damages in an ob-gyn malpractice case must show that the defendant deviated from the applicable standard of care and that the deviation caused the plaintiff’s harm. Thus, if a defendant sets forth prima facie evidence that he or she did not depart from the standard of care, or that any such departure did not cause the plaintiff’s harm, the burden will shift to the plaintiff to show a material issue of fact exists as to whether the defendant was negligent.

Published on: June 29, 2019

New York Court Explains Application of Frye Test in Medical Malpractice Cases

by DeFrancisco & Falgiatano

Expectant parents rely on their obstetricians and gynecologists to protect the health of their unborn child and to ensure the child is delivered safely. Unfortunately, ob-gyns do not always provide adequate care, which can cause a child to sustain devastating and permanent injuries during birth. In the majority of cases, expert medical testimony is required to prove that the treatment provided deviated from the standard of care and therefore caused a child’s harm. Recently, a New York court explained when expert medical testimony should be barred under the Frye test, in a case in which the plaintiff alleged her child suffered injuries at birth due to her ob-gyn’s negligent care. If your child suffered injuries at birth due to the negligent care provided by your ob-gyn, it is vital to speak with a trusted Syracuse ob-gyn malpractice attorney regarding your options for seeking compensation for your harm and the harm of your child.

Factual Background

Allegedly, the plaintiff was treated by the defendant ob-gyn during the course of her pregnancy, and during the birth of her child on April 14, 2006. The child had normal Apgar scores at birth and appeared to be in good health. Reportedly, when the child was two to three months old, the mother noticed that the child did not move her right hand. Subsequently, an MRI performed in March 2007 revealed that the child suffered a chronic infarct in the left frontal lobe of her brain. Subsequent tests revealed the child had severe brain damage caused by a remote cerebral injury.

It is reported that following her child’s diagnoses, the plaintiff filed an ob-gyn malpractice lawsuit against the defendant, arguing that the defendant’s failure to properly manage her labor and delivery and failure to perform an emergency Cesarean section in a timely manner caused the child’s harm. Prior to trial, the defendants filed a motion seeking a Frye order prohibiting the plaintiff’s expert from testifying that the plaintiff suffered an intrapartum injury during labor and delivery, on the basis that it relied upon a novel theory that was not generally accepted by the medical community.

Published on: April 26, 2019

Court Explains the Standard for Assessing a Jury’s Damage Award in a Obstetric Malpractice Case

by DeFrancisco & Falgiatano

In an obstetric malpractice case in which the plaintiff alleges inadequate care harmed a child, the plaintiff bears the burden of proving not only that the defendant obstetrician’s negligent care was the cause of the harm, but also the damages caused by the harm. In most cases, a jury assessing damages for the harm caused to a child at birth will assess the cost of the child’s ongoing treatment and the financial detriment to the child in the future due to his or her injuries. While the court is reluctant to disturb a jury’s findings, in cases where the verdict is deemed unreasonable, the verdict may be overturned. This was demonstrated in a recent New York case in which the court found that the jury’s damages award for harm caused by obstetric malpractice materially deviated from what is reasonable. If your child was injured by obstetric malpractice it is vital to retain a capable Syracuse medical malpractice attorney to assist you in your pursuit of compensation.

Facts Regarding the Plaintiffs’ Care

Reportedly, the plaintiff’s mother was under the care of the defendant obstetrician during her pregnancy. She was diagnosed with cervical insufficiency, and the plaintiff was subsequently born at 24 weeks gestation and allegedly suffered multiple neurological injuries. The plaintiff’s mother subsequently filed a medical malpractice lawsuit against the defendant, alleging that the defendant deviated from the accepted standard of care by failing to offer her a cerclage to prevent premature birth and failing to obtain a maternal fetal medicine consult, which resulted in her the plaintiff’s harm. The case was tried in front of a jury, which awarded the plaintiff a total of $20 million in pain and suffering, lost earnings of $113,000, and additional damages for therapy. The defendant filed a motion to set aside the verdict as contrary to the weight of the evidence.

The Standard for Evaluating a Verdict

Under New York law, what constitutes an appropriate damages award is a question for the plaintiff, and it will usually not be disturbed unless the court finds the jury materially deviated from what would be considered reasonable compensation. In determining what constitutes reasonable compensation, the court should look at the relevant precedent of similar cases. In the subject case, the court reviewed cases relied upon by both the plaintiff and the defendant in support of what constituted reasonable damages. The court ultimately found the cases produced by the defendant to be more persuasive and determined the damages awarded to the plaintiff for pain and suffering materially deviated from what is reasonable in light of the nature and extent of his injuries. The court denied the defendant’s motion as to the remainder of the damages, however.
Continue reading

Published on: April 2, 2019

New York Court Explains Grounds for Late Notice of a Birth Injury Claim Against a Public Corporation

by DeFrancisco & Falgiatano

Many hospitals are not privately owned but are actually public corporations. If a child suffers a birth injury due to medical malpractice at a hospital that is a public corporation, different procedural rules apply for pursuing a claim for damages against the hospital. For example, notice of any claim must be provided within 90 days of when the claim accrues. An appellate division of the Supreme Court of New York recently discussed when a plaintiff will be granted leave to file late notice of a claim, in a case arising from a birth injury. If you live in Syracuse and your child suffered an injury at birth, it is important to speak with a skilled Syracuse birth injury attorney regarding your case as soon as possible.

Reportedly, the plaintiff’s mother presented to the emergency department of the defendant hospital on November 23, 2010. She was 40 weeks and 4 days pregnant at the time, and complained of vaginal leakage, decreased fetal activity, and pain. She was examined and then discharged and sent home. Two days later, the plaintiff was born via an emergency cesarean section at the defendant hospital. The plaintiff was diagnosed with cerebral palsy and brain damage due to perinatal and neonatal asphyxiation.

It is alleged that the plaintiff’s father served the hospital with notice of a claim on August 29, 2013, and the hospital acknowledged receipt of the notice. Then, in March 2014, the plaintiff’s father filed a medical malpractice lawsuit on behalf of the plaintiff, alleging that the malpractice of the hospital’s employees caused the plaintiff’s harm. Specifically, it was alleged that the hospital breached the applicable standard of care in discharging the plaintiff’s mother when she first visited the hospital. Further, it was alleged the hospital breached the standard of care in failing to deliver the plaintiff via a cesarean section in a timely manner.

Published on: October 1, 2018

Hospital Sued for Malpractice After Boy Suffers Severe Brain Damage

by DeFrancisco & Falgiatano

Cerebral palsy is a devastating birth injury that can have lifetime consequences for a child. If your child has been diagnosed with cerebral palsy, you have the right to know if it was the result of medical malpractice. Our reputable Syracuse cerebral palsy attorneys will investigate the circumstances of your injury to determine if malpractice occurred.

A jury recently awarded the family of a boy $130 million in a medical negligence case after he suffered severe brain damage at a Detroit hospital, resulting in cerebral palsy. According to the complaint, technicians at the hospital failed to give chest compressions to the boy when it was required and his brain was deprived of oxygen leading to permanent injury. The boy was just two months old when the injury took place in 2006. He is now 12-years-old and requires a lot of assistance in day-to-day life, including needing help getting in and out of the bathtub. The boy’s mother looks after him full time. The jury made its decision after a three-week civil trial. The hospital plans to appeal.

Suing for Birth Injuries

Damage to the developing brain during or after birth can cause cerebral palsy. Cerebral palsy is a broad medical term used to describe many neurological disorders that affect movement and muscle coordination. While the condition does not worsen over time, it can have a costly and lifelong impact on an individual’s life. Cerebral palsy is often the result of a lack of oxygen to the brain at birth, decreased blood flow to the brain, or trauma and hemorrhage can injure the brain tissue.

Published on: September 25, 2018

Complications Arising from Untreated Jaundice in New York Newborns

by DeFrancisco & Falgiatano

The birth of a child is supposed to be one of the happiest times in your life, but it can quickly become stressful when something goes wrong. If your doctor failed to diagnose or treat infant jaundice, you may be entitled to compensation for your harm. At DeFrancisco & Falgiatano Personal Injury Lawyers, our hard-working Syracuse medical malpractice attorneys have the determination, skill and experience to handle your case. We will analyze the circumstances surrounding your child’s injury to determine if there is enough evidence to file a lawsuit.

Jaundice, also referred to as hyperbilirubinemia, is characterized by a yellowish discoloration of the eyes and skin of a newborn infant. This happens because the baby’s blood contains excessive amounts of bilirubin, a pigment that is released when red blood cells are broken down. Under normal circumstances, the liver removes bilirubin from the body, but in some newborn children, the liver is not mature enough to do this properly. When jaundice is not identified and goes untreated, a condition called kernicterus can develop. Kernicterus is a type of brain damage caused by very high levels of bilirubin in the blood.

Six out of every ten children are born with some degree of jaundice that is diagnosed as a relatively minor condition. Most infants recover from jaundice on their own with non-invasive treatments; however, if jaundice is severe or goes untreated then newborns may experience severe health problems such as hearing loss, vision problems, intellectual disabilities and even cerebral palsy.

Published on: July 30, 2018

Maternal Infection Malpractice in New York

by DeFrancisco & Falgiatano

The birth of a child is supposed to be a joyous occasion but it can quickly become incredibly stressful if there is a maternal infection threatening the health of a mother or child. At DeFrancisco & Falgiatano Personal Injury Lawyers, our seasoned Syracuse medical malpractice attorneys understand the nuances of this area of law. We will meticulously examine the facts of your case and identify medical errors that may have led to your maternal infection.

One of the most common factors leading to birth injuries or defects is maternal infection. A maternal infection is an infection acquired by the mother who then transmits the infection to the fetus. The infection can be transmitted in one of two ways: through the placenta prior to the birth or through the birth canal during labor and delivery when the baby is exposed to maternal blood. Untreated maternal infection can cause miscarriage and birth defects. Common examples of maternal infections include, but are not limited to:

Tocoplasmosis;
Choriomnionitis;
Urinary tract infections;
Group B streptococcus;
Hepatitis B;
HIV;
Rubella.

Published on: July 12, 2018

Fetal Macrosomia Malpractice in Syracuse

by DeFrancisco & Falgiatano

If your child suffered birth injuries as a result of fetal macrosomia, you may be the victim of medical malpractice. At DeFrancisco & Falgiatano Personal Injury Lawyers, our experienced Syracuse medical malpractice attorneys are committed to holding negligent medical malpractice parties accountable for the harm that they cause.

According to the Mayo Clinic, the term “fetal macrosomia” describes a newborn baby that is significantly larger than your average infant. To be diagnosed with fetal macrosomia, a baby must have a birth weight of more than 8 pounds 13 ounces irrespective of the fetus’s gestational age. As you can imagine, a baby this big can create dangerous complications for the birthing process. Fetal macrosomia is hard to detect during pregnancy but the condition can put a child at higher risk of lifelong injuries, including cerebral palsy, Erb’s palsy, hypoxic ischemic encephalopathy, brain bleeds and other traumatic injuries. The American Academy of Pediatrics reports that a little more than 10 percent of all pregnancies in this country result in macrosomia.

There are certain signs and symptoms of fetal macrosomia that doctors are trained to recognize. In addition, doctors can detect and diagnose macrosomia through an ultrasound, measuring the abdominal circumference, conducting the Leopold maneuver (i.e., by pushing on a mother’s abdomen) and/or by measuring the pregnant woman’s fundal height.