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At the beginning, the court had lack of authority to grant the leave

This is a claim for medical malpractice against the Manhattan health and hospitals corporation brought by a mother, individually and on behalf of her son. The infant was born at one hospital and allege that the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of the labor and delivery. Though the infant was transferred to another hospital and stayed for almost two weeks, he was then transferred back with the previous hospital where he received continuous treatment. It is also alleged that the infant suffers from brain injury and severe developmental delays.

At the beginning, the court had lack of authority to grant the leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the incident. As to the infant’s claims, based on the dates of the alleged malpractice, a notice of claim should have been served on the hospital corporations but the infant is the beneficiary of an infancy toll.

Further, entries in the medical records reveal that the infant was developing normally at the time of discharge and there is no indication of a long term injury. In the supporting affidavit, the mother admits to being aware of the conclusion by noting that at the age of three months her son had met all developmental milestones. A neurology visit note also supports the said conclusion. The mother also stated that about 17 months after her delivery, her son had once again met all milestones. The mother stated that she did not learn of her son’s alleged delays until some point and that it was not until more findings led her to believe that her son’s injury was in fact related to his birthing process. It is evident that the mother could not have been aware of any damages attributable to the delivery within 90 days of the date of accrual, or a reasonable time thereafter, as there was no indication that the infant experiences any alleged delays. Consequently, the subject medical records alone do not support that the mother, by its acts or omissions, inflicted injuries to the infant and that the mother should have been aware of same within the applicable 90 days, or a reasonable time thereafter.

Based on records, the ignorance of the law requiring that a notice of claim be filed is not an acceptable excuse. Furthermore, there is no support for the assertion that the delay was the product of infancy or of the need to provide the infant with extraordinary care.

Finally, the complainant’s Bronx expert explained in a conclusory manner that the hospital committed medical negligence and malpractice by failing to timely deliver the infant, resulting in damages. However, the complainant’s expert fails to offer the necessary nexus between the act of the opponents and any damage to the complainant that would put the hospital on notice that a claim would be filed with regard to the delivery at issue.

As the facts documented in the chart would not place the opponent on notice of a claim and the application is denied. Merely asserting that because the infant suffered a difficult neonatal course, the opponent was on notice of a malpractice claim is rejected. To prevail on the application, the complainant must establish that the hospital corporation had notice that the hospital departed from the standard of care in treating the infant, and that those departures caused the infant’s injuries. As a result, the complainants have not established those elements and their application are denied.

From pregnancy until the delivery of a child, we take extra care of the mother as well the fetus because every parent wishes to have a healthy child. However, even if we do everything in providing care of the child, there are still instances that negligence will occur. If you want to seek damages, the Nassau County Personal Injury Lawyer or Nassau County Injury Attorneys can provide you legal assistance. If you want to be represented by the Nassau County Brain Injury Lawyers, you can call Stephen Bilkis and Associates Office.

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