Birth Injury

Court Discusses Sufficiency of an Expert Affidavit in a Medical Malpractice Case in New York

Published on: August 7, 2020 | By DeFrancisco & Falgiatano

In many instances in which a patient is harmed by negligent medical care, more than one care provider will have provided the patient with inadequate treatment. Thus, it is not uncommon for multiple defendants that practice in different specialties to be named in a medical malpractice lawsuit. While the parties in a medical malpractice case generally need to retain medical experts to testify regarding the standard of care, one expert usually cannot offer an opinion as to multiple specialties. This was demonstrated in a recent New York case in which a mother and child both suffered injuries during the child’s birth. If you or your child sustained an injury during childbirth, it is advisable to consult an experienced Rochester birth injury attorney to discuss what evidence you must introduce to prove liability.

Facts of the Case

It is reported that the plaintiff mother was treated by the defendant gynecologist, who induced labor when the plaintiff was thirty-nine weeks pregnant. During the birth, the plaintiff mother and the plaintiff infant suffered unspecified injuries. Thus, the plaintiffs filed a medical malpractice lawsuit against the defendant gynecologist, as well as the hospital, anesthesiologist, and pediatrician, and orthopedic surgeon that participated in delivering the plaintiff infant and caring for both plaintiffs after the birth. The defendants moved to have the case dismissed via summary judgment, arguing they did not breach their respective standards of care. The trial court granted the motion, and the plaintiff appealed.

Sufficiency of an Expert Affidavit in a Medical Malpractice Case in New York

On appeal, the plaintiff argued in part that the defendant’s expert affidavit regarding the care provided by the anesthesiologist, pediatrician, and orthopedic surgeon lacked probative value. The appellate court agreed and reversed the trial court’s order to the extent it dismissed those defendants. Specifically, the court noted that it was true that under New York law, an expert does not have to be a specialist in a certain field in order to be able to testify competently regarding the accepted practices in that field.

New York Court Discusses Burden of Proof in Birth Injury Cases

Published on: July 23, 2020 | By DeFrancisco & Falgiatano

While medical malpractice lawsuits arising out of birth injuries are typically more heart wrenching than other malpractice lawsuits, the burden of proof imposed on all parties involved in a birth injury lawsuit is nonetheless the same. Specifically, the plaintiff must show harm caused by a departure from the standard of care to recover damages, and conversely, a defendant may be able to obtain a dismissal by demonstrating that he or she complied with the standard of care. In a recent birth injury case in New York, the court discussed what constitutes sufficient evidence to prove a triable issue of fact, and ultimately denied the defendant’s motion for summary judgment. If your child suffered an injury at birth, it is critical to retain an assertive Rochester birth injury attorney to help you and your child protect your interests.

Facts Regarding the Case

Reportedly, the plaintiff mother suffered from gestational diabetes during her pregnancy. She was induced at a hospital during the 39^th week of her pregnancy and gave birth to the plaintiff infant, who was delivered via the use of forceps. The plaintiff infant’s umbilical cord was wrapped around his neck when he was born, and he was limp, floppy, and not breathing. Positive pressure ventilation was initiated, and when it did not work, the plaintiff infant was intubated. He subsequently suffered brain damage, which caused cognitive and developmental issues. The plaintiffs filed a medical malpractice lawsuit against the doctor that delivered the plaintiff infant and the hospital where he was delivered. The defendants filed a motion for summary judgment, which the trial court granted. Thus, the plaintiffs appealed.

Burdens of Proof in Birth Injury Cases

Under New York law, the elements a plaintiff must prove in a birth injury case are a deviation from the accepted standard of care in the medical community in which the defendant practices, and proof that the plaintiff’s harm was proximately caused by the deviation. In turn, a doctor that seeks to be dismissed from a birth injury case must make a prima facie showing that he or she did not deviate from the applicable standard of care or that any deviation that occurred was not the cause of the plaintiff’s injuries. To sustain this burden of proof, the defendant must address and refute any specific allegations that are set forth in the plaintiff’s bill of particulars.

Court Discusses Approval of Settlements in New York Birth Injury Cases

Published on: April 14, 2020 | By DeFrancisco & Falgiatano

Medical malpractice lawsuits arising out of birth injuries can be complicated and costly to try to verdict, and the outcomes of such cases can be unpredictable, even if the evidence weighs strongly in favor of the plaintiff. Thus, in many instances, it is prudent for a plaintiff to settle with the defendant prior to trial. Settlements in birth injury cases differ from settlements in other cases; however, in that a court must review and approve the proposed settlement, to protect the interests of the injured child. In a recent case, the United States District Court for the Southern District of New York discussed the factors weighed in evaluating settlements in birth injury cases. If your child was injured at birth because of incompetent medical care, it is prudent to speak with a seasoned Rochester birth injury attorney to discuss what compensation you may be able to recover.

Factual and Procedural History

It is alleged that the plaintiff was scheduled to deliver her child at the defendant hospital. Due to difficulties encountered during the delivery, however, she was transferred to a second hospital where she underwent an emergency C-section. Her daughter nonetheless experienced brain damage which was caused by a lack of oxygen during delivery. As such, the plaintiff filed a lawsuit against the doctors and nurses involved in her treatment. Discovery was conducted, and some defendants were dismissed via stipulation and ultimately, the plaintiff and the remaining defendants came to a settlement agreement. The court then held a conference to determine the fairness of the settlement to the plaintiff’s child.

Approval of Settlements in Birth Injury Cases

The court noted that Local Civil Rule 83.2 governed settlements on behalf of infants. Specifically, the rule requires a proposed settlement to include an affidavit from the infant’s representative that sets forth the facts out of which the lawsuit arose, the extent and nature of the damages suffered, the proposed terms of the settlement agreement, and the manner in which the settlement will be distributed, and any other information that is pertinent. Additionally, the attorney for the plaintiff must provide an affidavit explaining his or her reasons for recommending the settlement, and describing the services he or she rendered to the plaintiff.

New York Court Denies Leave to File Late Notice of a Claim in a Birth Injury Case

Published on: November 12, 2019 | By DeFrancisco & Falgiatano

There are strict timelines for when a person may file a medical malpractice case under New York law. While there are some exceptions to the statutory time limitations, a delay in pursuing a claim may result in a waiver of the right to recover damages. This was shown by a recent birth injury case decided by a court in the appellate division of the Supreme Court of New York, in which the court affirmed the dismissal of the plaintiff’s case in its entirety. If your child sustained injuries at birth due to negligent medical care, you should speak with a capable Rochester birth injury attorney regarding the claims that you may be able to set forth.

Factual and Procedural Background of the Case

The minor plaintiff filed a motion for leave to file a late notice of claim against the defendant, a hospital that is a public corporation. Specifically, the plaintiff sought leave to file a medical malpractice claim arising out of injuries he alleged he suffered at birth. The defendant filed a motion to dismiss. The court granted the defendant’s motion and denied the plaintiff’s motion, after which the plaintiff appealed. On appeal, the appellate court affirmed the trial court ruling.

Leave to Submit Late Notice of a Claim Under New York Law

Under General Municipal Law Section 50e, a plaintiff who wishes to assert a tort claim against a public corporation must provide the corporation with notice of the claim within 90 days of when the harm occurs. A plaintiff can seek leave to file late notice of a claim against a public corporation, but a court will only grant leave under certain circumstances. Specifically, the court will assess the cause of the delay and whether the delay caused substantial prejudice to the defendant.

Court Discusses Privilege Protecting Quality Assurance Review Meetings in New York Obstetric Malpractice Case

Published on: May 29, 2019 | By DeFrancisco & Falgiatano

Generally, a party alleging obstetric malpractice is entitled to the disclosure of any facts and information that is necessary and material to pursue a lawsuit. While the policy typically favors liberal discovery, there are some privileges that provide exceptions to the general rule. For example, Education Law § 6537(3) protects certain information produced by a hospital performing a medical malpractice or quality assurance review. Recently, a New York appellate court analyzed the discrete issue of whether a defendant in an obstetric malpractice lawsuit can be compelled to testify regarding statements made by another defendant in a meeting protected by § 6537(3). If your child suffered injuries at birth because of insufficient obstetric care, it is essential to engage a seasoned Rochester obstetric malpractice attorney regarding the care that led to your child’s harm and what evidence you may be able to obtain to support your claim.

Testimony Regarding the Plaintiff’s Care

It is alleged that the plaintiff mother was admitted to the defendant hospital for induction of labor. The plaintiff infant was delivered via an emergency cesarean section later the same day. The plaintiffs allege that due to obstetric malpractice during the course of labor and delivery the plaintiff infant suffered permanent and severe injuries, including brain damage. The plaintiffs brought an obstetric malpractice lawsuit against the defendant nurse, defendant doctor, and defendant hospital.

Reportedly, during the deposition of the defendant nurse, the plaintiffs’ attorney questioned the defendant nurse regarding what the defendant doctor stated during the subsequent quality assurance meeting to review the events that transpired during the plaintiff infant’s birth. The defendants’ attorney objected to the question on the grounds that the information was protected by Education Law § 6537(3). The plaintiffs then filed a motion to compel the defendant nurse to testify regarding the meeting.
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New York Court Discusses Standard for Granting Judgment as a Matter of Law in Medical Malpractice Cases

Published on: April 13, 2019 | By DeFrancisco & Falgiatano

In cases involving obstetric malpractice, a plaintiff will typically exercise her right to a trial by jury. A jury trial allows a panel of the plaintiff’s peers, rather than a judge, to assess whether the defendant caused the plaintiff to suffer harm and if so, what damages the plaintiff should be awarded for the harm she suffered. While in many obstetric malpractice lawsuits trying a case in front of a jury results in an appropriate award of damages for the injured parties, that is not always the case. The law provides a remedy for verdicts that are clearly against the weight of the evidence, however, as illustrated in a recent New York case in which the court reversed the ruling where a jury failed to award damages despite finding the defendant obstetrician liable. If you or your child suffered harm due to obstetric errors, you should speak with a capable Rochester obstetric malpractice attorney in a timely manner to discuss your case and what compensation you may be able to recover.

The Plaintiff’s Treatment

Allegedly, the plaintiff fell when she was 37 weeks pregnant. She presented to the hospital that day, where she was treated by the defendant obstetrician. The defendant performed a sonogram and electronic fetal monitoring, which were normal. His notes indicated concerns regarding a delayed placental abruption, however, and he advised the plaintiff to follow up with her obstetrician. Two days later the plaintiff presented to the office of her regular doctor, the defendant obstetrician-gynecologist for monitoring.

Reportedly, the following day she experienced contractions and vomiting. She returned to the defendant’s office three days later and reported she was suffering abdominal pain. The defendant did not perform fetal monitoring. Two days later the plaintiff underwent an emergency cesarean section. The plaintiff’s child was extremely anemic at the time of her birth and suffered from cerebral palsy. She was unable to walk, use her arms, or feed herself and required constant care.
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New York Court Affirms Verdict in Favor of Plaintiff for Injuries Caused by Method of Delivery During Birth

Published on: January 15, 2019 | By DeFrancisco & Falgiatano

To successfully prove medical malpractice under New York law, an injured party must show that his or her medical provider deviated from the accepted standard of care, and the deviation was the cause of any harm alleged. In almost all medical malpractice cases, the opinion of one or more experts is needed to show the standard of care, whether there was any deviation from the standard, and whether the deviation was the cause of the injured party’s harm. In cases where both the injured party and medical provider introduce expert testimony supporting their position, it is up to the jury to assess which evidence is more compelling.

As recently illustrated in a case decided by the Appellate Division of the Supreme Court of New York, a court will not overturn the jury’s findings absent clear evidence to the contrary. If you or a loved one was injured due to insufficient medical care, you should consult a skilled Rochester medical malpractice attorney to discuss whether you may be able to recover compensation from the negligent providers.

Procedural Background

Reportedly, the infant plaintiff’s mother, on behalf of the plaintiff and herself, instituted a case against the defendant obstetrician alleging that negligent care provided during the infant plaintiff’s birth caused brain injuries and permanent neurocognitive damage. Specifically, it was alleged that the defendant obstetrician improperly used a vacuum extraction method to deliver the infant plaintiff. Following a trial, a jury found in favor of the plaintiffs. The defendant appealed, arguing the verdict was against the weight of the evidence. On appeal, the court affirmed.

Wrongful Birth Cases in New York

Published on: August 7, 2018 | By DeFrancisco & Falgiatano

The birth of a child should be a happy occasion. However, when the baby is born with a serious birth defect or genetic disorder, it can be extremely overwhelming for the parents. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Rochester medical malpractice attorneys understand that your love for your child has no bounds, but you also do not want your child to go through a life of hardship. If you feel that you were not given a full disclosure about your child’s detectable health condition during pregnancy, you may be entitled to compensation for your harm.A wrongful birth claim, also known as a wrongful life claim, is a type of medical malpractice claim that is made when a child is born with a birth defect, and the parents allege that the child would not have been born had it not been for the negligent advice or treatment of a medical professional. In essence, the parents often argue that if they had known that the child would be born with this condition or disorder, they would have chosen to terminate the pregnancy.

To establish such a claim, the plaintiffs must demonstrate that but for the medical professional’s breach of their duty to advise the plaintiffs, the plaintiffs would not have been required to assume the extraordinary obligations associated with raising the child because they would have had the opportunity to terminate the pregnancy. For example, certain types of defects, such as Tay-Sachs disease, sickle cell anemia, and Down’s syndrome, can be detected early in pregnancy and are examples of medical conditions that have been at the center of wrongful birth cases.

Ultrasound Malpractice in Rochester

Published on: July 29, 2018 | By DeFrancisco & Falgiatano

An ultrasound examination for expecting parents is usually a happy and memorable event. Parents often come away with their first “picture” of their baby, which they can show to family and friends. Unfortunately, when certain issues are missed or misinterpreted on an ultrasound, the results can be devastating. If you believe that you or your baby suffered harm due to an ultrasound error caused by a medical professional’s negligence, you need to consult a reputable Rochester birth injury attorney without delay.

Ultrasound is an imaging method that uses high-frequency sound waves to produce images of structures within your body. The images can provide valuable information for diagnosing and treating a wide range of diseases and conditions. While ultrasounds are used for many reasons, one of the most common reasons is to view the uterus and ovaries during pregnancy and monitor the developing baby’s health. This typically happens during the second trimester of pregnancy, between 18 and 20 weeks as a way to make sure everything is going as it should.

Neonatal Seizure Injuries in New York

Published on: June 1, 2018 | By DeFrancisco & Falgiatano

The joyous occasion of a birth can quickly turn into a nightmare if something is wrong with the baby. Unfortunately, the error or carelessness of a medical professional often leads to harm such as neonatal seizures. If your baby experienced seizures or is experiencing seizures after birth, you need to reach out to a skilled Rochester birth injury attorney who can assess the merits of your case. At DeFrancisco & Falgiatano Personal Injury Lawyers, we have helped many families and can help you as well.

A seizure is uncontrolled electrical activity in the brain that generally produces physical convulsion. Neonatal seizures are typically characterized as seizures that take place within the first month of life. Seizures are typically signs of brain dysfunction. In newborns, seizures can be a sign that a baby suffered some type of brain damage. Often, they are the first sign of a birth injury. There are four types of seizures in newborns:

Subtle seizures: blinking or rapid side-to-side eye movement, leg bicycling, and mouth smacking movements. These occur in about 50 percent of all newborns with seizures.