Articles Posted in Birth Injury

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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.

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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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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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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.

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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.

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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.

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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.
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There is nothing more stressful than realizing your child suffered a birth injury that could affect the rest of his or her life. If you believe your child’s birth injury was a result of medical malpractice, you may be entitled to seek compensation for your harm. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Rochester birth injury lawyers can meticulously review the facts of your case and provide you with an honest assessment of your claim. We understand how to advocate for victims of medical malpractice in an effective and efficient manner.

A stroke is considered a fetal stroke when it takes place anywhere between 14 gestational weeks of age and delivery. Fetal strokes are caused by restricted blood flow in the brain, which can result in the death of brain cells and lead to permanent brain damage. The consequences of such brain damage can include cerebral palsy, epilepsy, and cognitive impairment. Fetal strokes can be classified in one of two ways:

  • Hemorrhagic strokes, which occur when trauma causes damage to the brain’s blood vessels; and
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Every potential mother hopes for a smooth labor and delivery with no complications. The goal, after all, is a healthy baby. While the vast majority of women give birth without any serious complications, there are certain emergency situations that can arise, such as shoulder dystocia. Shoulder dystocia can be one of the scariest emergencies in the delivery room. If your child has been injured because a medical professional failed to handle shoulder dystocia properly, we can help. At DeFrancisco & Falgiatano Personal Injury Lawyers, our seasoned Rochester birth injury attorneys can analyze the facts of your case and help you determine your next steps.

Shoulder dystocia is a serious condition in which one or both of a baby’s shoulders become stuck behind the mother’s pubic bone during delivery. Put another way, shoulder dystocia occurs when an infant’s shoulder catches on the mother’s hips during childbirth. Approximately 1 percent of all deliveries experience shoulder dystocia complications. However, 20 percent of affected babies suffer temporary or permanent injuries.

When shoulder dystocia occurs, immediate and detail-oriented medical attention is needed. There are a number of last-minute safety techniques that can help prevent injury to the mother and infant. In some cases, an emergency C-section surgery will be required to deliver the baby because the umbilical cord may be compressed and cutting off oxygen to the baby’s brain. Failing to recognize and treat shoulder dystocia can lead to serious and long-term injuries to the newborn, including brain injury, brachial plexus damage, bone fractures, nerve injury, Erb’s palsy, maternal hemorrhage after delivery, cerebral palsy, and a variety of other dangerous health conditions.

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As people decide to have children at an older age, fertility clinics have grown in popularity. In addition, medical advances related to fertility have been a focus on medical researchers. For example, the NIH reports that the amount of research dollars related to fertility has grown from $78 million to $86 million over the last few years. However, as more people seek the services of fertility specialists, there are growing risks for New York birth injuries and prenatal care negligence. There is a current case pending before a New York court of appeals that revolves around the potential liability of a fertility clinic as it relates to genetically defective eggs.

The plaintiffs are two separate couples who allege that a New York fertility clinic, through the clinic’s fertility doctor, provided eggs that led to their children being born with genetic disorders. Both children have what’s known as Fragile X syndrome, which is a disease that can cause mental and physical developmental issues. The plaintiffs’ complaint alleges that the defendants, the fertility doctor and his clinic, failed to test the women who donated the eggs in question to assess whether those women were carriers for Fragile X syndrome. The damages relate to the expenses of caring for a disabled child.

The primary issue in the case is whether the claim is time-barred by New York’s statute of limitations for medical malpractice claims. Generally, the statute of limitations for a claim is 36 months from the date of the alleged act of malpractice.

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