December 26, 2012

Fraud is Involved in Malpractice Action

This is an action to recover damages for fraud. The New York City plaintiffs are appealing an order made by the Supreme Court of Suffolk County that granted the defendant’s motion for summary judgment dismissing the complaint against them.

Case Background

The plaintiffs in this case are an infant and his father. In 1987, the plaintiffs settled a medical malpractice action against an insured of the respondent in this case. The settlement included an annuity that would provide payments to the infant plaintiff in the sum of $3000 per month for life. The respondent estimated the present value of the entire settlement package to be $940,180.

In 1992, the plaintiffs started this action against the respondent seeking damages for fraud, intentional misrepresentation, and negligent representation. The plaintiffs allege that the respondent had knowledge and expertise in the issue of structured settlements and misrepresented the present value of the annuity provision of the settlement knowing that the plaintiff’s would rely on the misrepresentation to their detriment in order to settle the matter.

The respondent argues that the plaintiffs were not entitled to rely on the represented present value of the package because they could have independently determined the value for themselves.

Court Discussion and Decision

The Supreme Court granted the motion for summary judgment to dismiss the complaint made against them. The court has reviewed the facts of the case and is reversing the order from the Supreme Court of Suffolk County. It is found that there are questions of fact in regard to the case and for this reason the motion is denied and the complaint is reinstated against the defendant.

November 18, 2012

This case is being heard in the Special Term of the Supreme Court of Queens County

This case is being heard in the Special Term of the Supreme Court of Queens County. NYC in the state of New York. The question before the court is whether the mother of a still born child who alleges that she was caused to endure excruciating pain and unnecessary injury and delay by reason of malpractice of the defendants is able to recover for the alleged emotional and psychic harm that resulted from the still born birth.

Case Discussion

The question before the court is interesting as the defendants of the case have motions for summary judgment to dismiss the complaint against them for failure to state a cause of action that is cognizable under the laws of the state of New York.

The case at hand deals with a medical malpractice action that arises from the obstetrical care that was provided to the plaintiff by the defendant hospital on the second of June, 1981. This is the date that the plaintiff delivered a stillborn fetus.

The plaintiff alleges that while at the defendant hospital she had numerous physicians attending to her pregnancy and delivery. She states that the defendants are guilty of malpractice because they failed to properly anticipate a breach delivery and did not provide competent physicians to handle such an issue.

The defendants tried to deliver the breech baby vaginally. This delayed the delivery of the infant and was extremely painful for the plaintiff. The plaintiff alleges that this was negligent and caused her to suffer from severe and serious physical, emotional, and mental injuries. It is further alleged that this delay in delivery was the cause of the infant being still born.
The defendants are arguing that the plaintiff has not stated a cause of action in the case and is only seeking emotional damages as a result of having a still born baby. The defendants argue that they are not liable for the baby being still born. The defendants offer several cases as evidence to support their case for summary judgment to dismiss the complaint that has been made against them.

Court Decision

Recent legislation in the state of New York allows mothers of still born children who meet certain criteria known as Bovsun criteria, to have their claims recognized as cognizant even if there are no physical injuries in the case. The plaintiff in this matter has met these criteria.
For this reason, the court finds that there are triable issues of fact in this particular case. The plaintiff has met her burden to establish these facts. The court is ruling in favor of the plaintiff in this case. The motion for summary judgment to dismiss the complaint made against them by the defendants is denied.

Continue reading "This case is being heard in the Special Term of the Supreme Court of Queens County " »

September 3, 2012

In an action to recover damages for medical malpractice and lack of informed consent,

In an action to recover damages for medical malpractice, the wife of the plaintiff Ulysses Simmons gave birth to their daughter, the infant plaintiff, Ivette Sheyanne Simmons, following what was an otherwise normal and uncomplicated pregnancy, via vaginal delivery after about two hours of labor, at the defendant Brooklyn Hospital Center (hereinafter refered to as the Hospital). However, according to medical records, the infant plaintiff was born macrosomic (excessive size), blue and diagnosed with fetal hydrops, also referred to as hydrops fetalis (total body edema) presumably due to intrauterine infection, resulting in anemia, thrombocytopenia (low platelet count), and brain hemorrhage. The infant was subsequently diagnosed with cerebral palsy involving global developmental delays and seizures.

The plaintiffs commenced this medical malpractice action against, among others, the defendant Snehaprabha Lotlikar (hereinafter Dr. Lotlikar), an employee of the defendant Bedford-Williamsburg Medical Group, which is also sued herein as the defendant Central Brooklyn Medical Group, P.C. (hereafter together Bedford-Williamsburg). Dr. Lotlikar saw the mother during the 34th week of pregnancy, and then again during the 35th to 36th week of pregnancy.

A Lawyer said that, plaintiffs alleged that Dr. Lotlikar deviated from accepted medical practice by failing to perform a sonogram on each of those visits, and that said departure was a proximate cause of the infant plaintiff's birth injuries because it would have revealed her macrosomic condition and fetal hydrops, which in turn would have led to delivery via cesarean section. Additionally, the plaintiffs commenced this action against the defendant Phillipe J. Day (hereinafter Dr. Day), who was also employed by Bedford-Williamsburg, and who was involved in the first hour of the mother's labor at the Hospital, alleging that he deviated from accepted medical practice by failing to perform a sonogram. The plaintiffs also sought relief against Dr. Waltrous, who was also employed by Bedford-Williamsburg, and who was involved in the second hour of the mother's labor and actually delivered the infant plaintiff, alleging that she deviated from accepted medical practice by failing to perform a sonogram. The plaintiffs also sought relief against Patrick LeBlanc (hereafter Dr. LeBlanc), who was employed by the Hospital, and who treated the infant plaintiff immediately following her delivery in the Hospital's neo-natal intensive care unit for her hydrops fetalis condition, alleging that he deviated from accepted medical practice by engaging in a more conservative course of treatment, rather than performing aggressive treatment referred to as paracentisis and thoracentesis (the insertion of tubes into the body to remove fluids therefrom). Additionally, the plaintiffs seek to hold the Hospital vicariously liable for Dr. LeBlanc's alleged medical malpractice, and to hold Bedford-Williamsburg vicariously liable for the alleged medical malpractice of Drs. Lotlikar, Day, and Waltrous. The defendants’ moved and cross-moved for summary judgment dismissing the complaint insofar as the complaint asserted against them.

The Supreme Court granted the motion and cross motions by Drs. Day, Waltrous, and LeBlanc, as well as the Hospital, in their entirety. However, the Supreme Court denied Dr. Lotlikar's cross motion, and consequently, awarded summary judgment only to Bedford-Williamsburg dismissing the complaint to the extent it asserted vicarious liability claims against Bedford-Williamsburg for the alleged medical malpractice of Drs. Day and Waltrous.

The issue in this case is whether the defendants are entitled for summary judgment dismissing the complaint asserted against them.

The Court held that, the requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage. On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion.

The Court said that, in opposition to the prima facie showing of judgment as a matter of law by Drs. Day, Waltrous, and LeBlanc, the plaintiffs submitted a medical expert opinion which was conclusory and speculative, and otherwise insufficient in form and substance to raise a triable issue of fact. Accordingly, the Supreme Court correctly granted summary judgment to those doctors dismissing the complaint insofar as asserted against them. Consequently, the Supreme Court also correctly granted summary judgment to the Hospital dismissing the vicarious liability claims asserted against it pertaining to Dr. LeBlanc, as well as the vicarious liability claims asserted against Bedford-Williamsburg pertaining to Drs. Day and Waltrous.

As to Dr. Lotlikar, the Court held that the plaintiffs' opposition to her prima facie showing of entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against her, was conclusory and speculative, particularly on the issue of proximate causation and, therefore, her cross motion should have been granted as well. Specifically, the plaintiffs' medical expert's opinion that a sonogram performed at weeks 34, 35, or 36 of pregnancy would have detected hydrops fetalis, is based on the speculative assumption that the in utero infection that caused this condition was present at that time. Indeed, Dr. Lotliker's expert observed that the medical record is void of any indication that the mother was suffering from an in utero infection during her two visits with Dr. Lotlikar. Inasmuch as summary judgment should have been awarded to Dr. Lotlikar dismissing the complaint insofar as asserted against her, the same applies to the vicarious liability claims asserted against her employer, Bedford-Williamsburg, pertaining to her alleged medical malpractice.

Thus, the NYC Court ordered that the cross appeal by the defendant Leone L. Waltrous is dismissed. Further, the Court held that the order is reversed insofar as cross-appealed from by the defendants Phillippe J. Day, Bedford-Williamsburg Medical Group, Central Brooklyn Medical Group, P.C., and Snehaprabha Lotlikar, that branch of the cross motion of the defendants Phillippe J. Day, Bedford-Williamsburg Medical Group, and Central Brooklyn Medical Group, P.C., which was for summary judgment dismissing the complaint insofar as it asserted vicarious liability claims against the defendants Bedford-Williamsburg Medical Group and Central Brooklyn Medical Group, P.C., for the alleged medical malpractice committed by the defendant Snehaprabha Lotlikar is granted, the cross motion of the defendant Snehaprabha Lotlikar for summary judgment dismissing the complaint insofar as asserted against her is granted; and it is further, ordered that the order is affirmed insofar as appealed from; and it is further, ordered that one bill of costs is awarded to the defendants Phillippe J. Day, Leone L. Waltrous, Snehaprabha Lotlikar, Patrick LeBlanc, the Brooklyn Hospital Center, Bedford-Williamsburg Medical Group, and Central Brooklyn Medical Group, P.C., appearing separately and filing separate briefs, payable by the plaintiffs.

Finally, the Court held that the appeal by the defendant Dr. Waltrous must be dismissed on the ground that she is not aggrieved by the order appealed from. The issues raised on Dr. Waltrous's appeal have been considered in support of her contention that the order appealed from should be affirmed to the extent it granted her cross motion for summary judgment dismissing the complaint insofar as asserted against her.

Continue reading "In an action to recover damages for medical malpractice and lack of informed consent, " »

September 1, 2012

In an action to recover damages for medical malpractice and lack of informed consent,

In an action to recover damages for medical malpractice and lack of informed consent, a source said that, plaintiff Valerie Abdelkader, mother and natural guardian of Laila Abdelkader, alleged that Laila's Erb's Palsy injury was caused by the medical malpractice of the defendant doctor in connection with the obstetrical care administered at Laila's birth on July 2, 1997. The jury returned a verdict in favor of the plaintiff and against the defendant in the principal sums of $300,000 for past pain and suffering and $500,000 for future pain and suffering.

Thereafter, a source said that, the defendant appeals the judgment of the Supreme Court, Kings County, dated October 17, 2007, which, upon a jury verdict in favor of the plaintiff and against him finding that the plaintiff sustained damages in the principal sums of $300,000 for past pain and suffering and $500,000 for future pain and suffering, and upon an order of the same court dated May 31, 2007, which denied his motion pursuant to CPLR 4404 (a) to set aside the jury verdict as against the weight of the evidence or to set aside the damages award as excessive, is in favor of the plaintiff and against him in the principal sums of $300,000 for past pain and suffering and $500,000 for future pain and suffering.

The issue in this case is whether the damages in accordance with the evidence presented, awarded to the plaintiff is excessive.

The Court held that, a jury verdict may not be set aside as being against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence. Moreover, issues regarding the credibility of expert witnesses are peculiarly within the province of the jury to determine. In this case the Court said that, it cannot be said that the evidence so preponderated in favor of the defendant that the jury could not have reached a verdict in favor of the plaintiff on any fair interpretation of the evidence. There is no basis in the record to disturb the jury's resolution of credibility issues in favor of the plaintiff.

However, the New York City Court agrees with the defendant that the award of damages of the principal sums of $300,000 for past pain and suffering, and $500,000 for future pain and suffering, deviates from what would be reasonable compensation, and is excessive to the extent indicated herein.

Hence, the Court ordered that the judgment be reversed, on the facts and in the exercise of discretion, with costs, that branch of the defendant's motion which was pursuant to CPLR 4404 (a) to set aside the damages award as excessive is granted, the order is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages for past and future pain and suffering only, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, Brooklyn a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from the principal sum of $300,000 to the principal sum of $150,000, and for future pain and suffering from the principal sum of $500,000 to the principal sum of $400,000, and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

Continue reading "In an action to recover damages for medical malpractice and lack of informed consent, " »

April 28, 2012

The settlement was a low amount considering the nature of the birth injuries

The settlement was a low amount considering the nature of the birth injuries and the fact the child could never be left alone for the rest of its life. The damage award was based on a 47% negligence ratio assessed against the defendant doctor.

The case was appealed on the grounds that the damages were far too low given the egregious nature of the doctor’s actions. The Appellate court agreed that the damages were far too low and directed a new trial to deal with damages only. They had no problem ordering a new trial, as there was ample evidence on record that indicated the residents at the hospital and the on call physician, who subsequently died, were negligent.

The on call physician didn’t supervise any of the treatment provided to the mother in this case and his lack of oversight resulted in severe brain damage to the baby. In other words, there was a direct link between the doctor’s negligence and the baby’s brain damage – referred to as proximate cause.

The Appellate court further found that the initial damage award was too low considering what would be reasonable compensation in light of the severe nature of the baby’s permanent brain damage. The other argument advanced was that the jury award was low due to juror confusion and ambiguity. The courts in NYC and Westchester did not see this as being a valid reason to hand out a low amount when the issue could have been addressed at the lower court level.

Continue reading "The settlement was a low amount considering the nature of the birth injuries " »

August 6, 2011

Mother of Cerebral Palsy Girl Seeking Stem Cell Cure

A mother is hoping that stem cell research could provide the secrets which can be used to cure her daughters Cerebral Palsy. The 9 year old girl suffers from epilepsy, asthma and cerebral palsy.

It is alleged that the young girl suffers from cerebral palsy because of mistakes which were made during her birth. The girl was in an awkward position which meant that the mother really should have been offered a caesarian section. However, the pregnancy was allowed to continue as normal but she didn’t give birth until two weeks after the due date.

The family have successfully filed a case against the doctor in the emergency room. They have received a settlement of $1 million. Once all of the New York Medical Malpractice Lawyer fees were paid, the rest of the money was put into a trust fund.

The family have had 9 years to get used to coping and living with the condition of the girl. The young girl requires daily treatment with a nebulizer to assist her breathing. Her epilepsy also causes seizures. The full time careers of the girl are her father and brother. In Long Island and New York City, Lawyers deal with birth injury on a daily basis.

The NY Medical Malpractice Lawyer explains that the mistakes made at the time of her birth have had a serious impact on her whole life. She cannot eat normal food and is instead fed through a small tube which is inserted straight into the stomach. Her body finds it difficult to retain the food and her weight at 9 is only 30 pounds.

She tries to live as normal a life as possible. She attends school whenever possible. She has a personal instructional aide to assist with her studies when she is at school. At the moment she cannot communicate because she does not have any movement in her hands.

The parents of the girl are hoping that stem cell research will provide a suitable treatment. They have chosen a medical center in China which will implant the stem cells by lumbar puncture. This is not a cure, but will hopefully lessen the symptoms.

Continue reading "Mother of Cerebral Palsy Girl Seeking Stem Cell Cure" »

June 8, 2011

Parents Settle $8.5 million in Birth Injury Malpractice

The parents of a five year old boy filed a malpractice suit due to injuries sustained during the birth of their son. The case has been settled after being in court for just three days explains a prominent New York Medical Malpractice Lawyer.

The New York City Medical Malpractice Lawyer was told that the parents of the child were awarded $8.5 million to cover medical costs and care required due to mistakes made when their don was born. The five year old boy still suffers from seizures and is not able to walk unassisted. The boy will need medical treatment for his entire life because he suffered from brain damage.

Everything seemed fine when the delivery started explained the Manhattan Medical Malpractice Lawyer. However, according to medical reports and records at 9 AM concerns were raised about the heart rate meter dropping significantly. The heart rate of the baby was originally at 140 beats per minute, but fell as low as 60 beats per minute.

The heart rate being as low as 60 beats per minute is very serious and can cause long lasting damage. The nurse continued to monitor the situation but waited for half an hour before alerting the obstetrician. This was found out by looking at telephone records which show when she started making phone calls to the obstetrician.

The attending obstetrician arrived 22 minutes after he was called. However, the caesarean section was not carried out until 11AM. The procedure was very quick and only took around 4 minutes to take the baby out. If this was performed immediately without the delays that were really experienced, then the family could have been facing a very different future.

The New York Medical Malpractice Lawyer explains that an expert witness was called to give evidence. They said that if the C-section was performed earlier then it would be much more likely that the baby would not of been harmed. The birth injuries were preventable if the doctors acted quickly. Lawyers in Manhattan, New York City have stated the same case.

Continue reading "Parents Settle $8.5 million in Birth Injury Malpractice " »

June 2, 2011

Brain damage at birth severely harms baby

In this case, the father of a brain damaged baby filed a medical malpractice lawsuit against the attending doctor. In the original trial, the court found the doctor guilty of malpractice and granted a motion to set aside the damage award of $1,500,000, because it was not enough. A new trial was ordered to set damages.
On appeal, the court held there was plenty of evidence to show that the on call attending doctor didn’t properly supervise the treatment offered by his residents during the birth of the baby in this case. They further held his malpractice was substantial and the proximate cause of the baby’s severe brain damage, explained the New York Medical Malpractice Lawyer Malpractice can take place anywhere like Brooklyn, New York and is likely to end in a similar award to the victim.
In handing down the court’s decision, the Supreme Court Appellate judges also fund that the damages awarded initially deviated substantially from what would be a reasonable damage award, in light of the extent of the baby’s brain damage. However, they also found that setting aside the verdict as a result of juror confusion and ambiguity was not the right thing to do.
When the plaintiff’s son was born, he sustained severe, life-altering brain damage as a direct result of the negligence of the attending physician present at the time of birth. The doctor did not pay attention to what his interns were doing and didn’t check the level of care provided to the mother in this case, reported the New York Medical Malpractice Lawyer.

Continue reading "Brain damage at birth severely harms baby" »