Birth Injury

Published on: July 8, 2021

New York Court Discusses Notice Required in Medical Malpractice Actions Against Public Corporations

The birth of a child is a joyous event, but sometimes it can be marred by injuries that arise due to medical negligence. While parties can seek compensation for harm suffered during birth, they must abide by any applicable procedural rules, and if they do not, they may waive the right to recover damages. This was discussed in a recent New York opinion, in which an appellate court affirmed a trial court order granting a plaintiff leave to provide late notice of a birth injury claim. If your child suffered harm at birth, it is advisable to speak to a skilled Syracuse birth injury lawyer as soon as possible.

The Plaintiff’s Claims

It is alleged that the plaintiff delivered her son at the defendant hospital in June 2015. The child suffered a brain injury during the delivery, which the plaintiff alleged was caused by medical negligence. Thus, in May 2018, she filed a medical malpractice case against the defendant. The defendant moved to dismiss the plaintiff’s complaint on the grounds that the plaintiff neglected to serve a timely notice of the claim. The court denied the motion, and the defendant then filed an appeal.

Notice Required in Medical Malpractice Actions Against Public Corporations

New York law requires that a plaintiff who wishes to pursue claims against a public corporation must provide the corporation with notice of the claim within 90 days of when it arises. The notice is a prerequisite to filing a tort action. The courts may extend the time to serve notice if they deem it appropriate. The court will consider factors such as whether the corporation or its insurers had actual notice of the claim, whether the claimant was an infant, whether the delay was reasonable and whether any prejudice was caused by the delay. Continue reading

Published on: June 22, 2021

New York Court Discusses Proving Liability in Birth Injury Cases

by DeFrancisco & Falgiatano

Birth injuries can cause lifelong impairments that not only require costly care but are also emotionally devastating. Many birth injuries are caused by incompetent medical care, and parents of children who suffer harm at birth are often able to recover compensation for their child’s losses. The mere occurrence of an injury is not sufficient to impose liability, however. Instead, as demonstrated in a recent New York opinion, a plaintiff must produce competent evidence of medical negligence to establish a defendant’s fault. If your child was injured at birth, you might be able to pursue a claim for damages, and it is advisable to confer with a Syracuse birth injury lawyer to determine your rights.

The Plaintiff’s Claims

It is reported that the plaintiff, who was expecting her first child, was treated by the defendant midwife at the defendant hospital throughout her pregnancy. She ultimately gave birth to her son at another hospital. The infant was born prematurely and suffered numerous injuries. Thus, the plaintiff filed a medical malpractice lawsuit against the defendants, alleging their negligence brought about her child’s harm. The defendants moved to have the plaintiff’s claims dismissed via via summary judgment, and the court granted the motion. The plaintiff then appealed.

Proving Liability in Birth Injury Cases

In New York, medical malpractice cases require proof that the defendant healthcare provider departed from the accepted standard of care and that such departure was the proximate cause of the plaintiff’s harm. As such, a defendant who moves for summary judgment must establish the lack of a departure from the accepted and good practice of medicine or show that the plaintiff was not harmed by any such departure. Continue reading

Published on: January 16, 2021

New York Court Illustrates the Difference Between Ordinary Negligence and Medical Malpractice

by DeFrancisco & Falgiatano

If a patient suffers harm at the hands of a doctor, people often assume that the doctor committed malpractice. While in many instances the assumption is accurate, doctors can also hurt people through ordinary carelessness, and in such cases, a medical malpractice claim would not be appropriate. The difference between standard negligence claims and those asserting medical malpractice was the topic of a recent New York opinion in a matter in which the plaintiff asserted she was harmed by the defendant doctor at birth. If you or your child suffered a birth injury, it is important to meet with a knowledgeable Syracuse birth injury attorney as soon as possible to discuss your rights.

The Plaintiff’s Allegations

It is reported that the plaintiff, who was born in 1999, suffered harm after her birth during the transfer from the delivery room. Specifically, she was injured when the defendant obstetrician tossed her to another person. As such, she filed a lawsuit against the defendant on January 6, 2020, alleging claims of negligence. The defendant moved for dismissal, arguing that the plaintiff’s claims sounded in medical malpractice and that she failed to pursue her claims within the statute of limitations or file a required certificate of merit.

Ordinary Negligence Versus Medical Malpractice Under New York Law

Upon review of the pleadings, the court found in favor of the plaintiff. The court explained that, under New York law, the difference between malpractice and ordinary negligence hinges on whether the harmful omissions or acts involve an issue of medical science or art that requires special skills that an ordinary layperson will not typically possess, or whether the behavior at issue can instead be evaluated on the basis of the factfinder’s common everyday experience. Continue reading

Published on: December 13, 2020

New York Court Explains Statements Permitted by Attorneys During Birth Injury Trials

by DeFrancisco & Falgiatano

The job of a lawyer in a medical malpractice case is to argue that the evidence presented demonstrates liability or exonerates a defendant. Although counsel is granted broad leeway in how they describe the testimony offered at trial, they cannot couch evidence or otherwise make statements that are prejudicial to the opposing party. Recently, a New York court issued an opinion explaining the parameters of admissible statements in matters involving medical negligence in a birth injury case. If your child sustained an injury before or during birth, you could be owed significant damages, and it is prudent to meet with a skillful Syracuse birth injury attorney.

The Plaintiff’s Care and Subsequent Claims

It is reported that the plaintiff, who was pregnant, received prenatal care from the defendant obstetrician-gynecologist throughout the course of her pregnancy. She underwent an ultrasound at 20 weeks, which revealed that she had a low lying placenta. A second ultrasound a month later did not report the same result, however. Her pregnancy progressed normally, but she experienced sudden bleeding one day and went to the hospital, where she underwent an emergency caesarian section.

Allegedly, the plaintiff’s infant was born in a state of distress and sadly died four hours later. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that the defendant’s departure from the standard of care led to her child’s harm. A trial was held, and the jury found in favor of the defendant. The plaintiff filed a motion asking the court to set aside the verdict, which the court denied. The plaintiff then appealed.

Published on: September 21, 2020

New York Court Discusses Notice Requirements in Medical Malpractice Claims Against the State

by DeFrancisco & Falgiatano

Even if patients suffer devastating losses as a result of incompetent medical care, they may be denied the recovery of compensation if they do not abide by their duties under the law. For example, if a patient suffers harm in a facility that is considered a State actor, the patient must provide the State with notice of his or her claims within a certain time frame, or they may waive the right to pursue claims against the State. In some instances, though, a court may grant an exception to the notice requirement, as demonstrated in a recent New York birth injury case. If your child suffered harm during delivery, it is wise to confer with a skillful Syracuse birth injury lawyer to discuss your legal rights and duties.

Factual and Procedural History

Allegedly, the plaintiff-mother visited the defendant hospital, which is owned by the State, to give birth. During the delivery of the plaintiff-mother’s son, the doctors employed by the defendant used forceps, which caused injuries that ultimately led to the infant’s death. The plaintiff-mother and plaintiff-father then filed a motion for leave seeking permission to file a late claim, pursuant to the Court of Claims Act, which dictates the manner in which claims against the State must proceed. The trial court denied the motion, after which the plaintiffs appealed. On review, the appellate court reversed the trial court ruling, granting the plaintiffs leave.

Notice Requirements Under the Court of Claims Act

Pursuant to the Court of Claims Act, a court has the discretion to permit a plaintiff to file a late claim. In determining whether to grant such permission, the court will weigh several factors, including whether the State had notice of the key facts of the claim, whether the claim seems to have merit, whether the Plaintiff has any other remedy, and whether the State had a reasonable opportunity to investigate the circumstances out of which the claim arose. The court will also look at whether the failure to serve a timely notice of the claim upon the State caused substantial prejudice, and whether the plaintiff’s delay in filing the claim was reasonable. There is no one factor that is controlling, and the absence or presence of any factor is not determinative.

Published on: July 19, 2020

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

by DeFrancisco & Falgiatano

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.
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