Articles Posted in Staten Island

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Defendants New York City Health and Hospitals Corporation (HHC) and Dr. PN (collectively defendants) move for summary judgment, dismissing plaintiff’s complaint insofar as asserted against them.

In this medical malpractice action, plaintiff alleges that defendants deviated from accepted standards of medical care while he was being treated in the hospital for severe injuries he sustained in an automobile accident. The Manhattan plaintiff alleges, among other things, that defends its improperly and negligently positioned and restrained his wrists, failed to monitor the effects of the restraints, negligently failed to perform physical therapy on him, and negligently caused his arms to become paralyzed and non-functional.

On December 29, 2004, plaintiff, then age 62, was driving his vehicle when it struck trees, a fence and landed in a courtyard, ejecting him from the driver’s side window. Plaintiff sustained various injuries, including a hemorrhage of the head, a crushed left leg from his foot to hip, and multiple lacerations and abrasions. EMS brought plaintiff to Kings County Hospital emergency room, where plaintiff was described as alert, combative, and intoxicated. Plaintiff was intubated and x-rays and abdominal/pelvic ct-scans were performed. Plaintiff sustained fractures of the pelvis, left femur, and left tibia/fibula, and had internal bleeding.

According to Dr. PN, plaintiff required significant treatment to save his life. He was unstable in the emergency room and Dr. PN did not know if he was going to survive. A CAT scan was taken to look at plaintiff’s head injury and to identify his severe pelvic fracture, but he become progressively more unstable and hemorrhaging. He underwent multiple massive transfusions, and was then transferred to the intensive care unit, where he was still unstable. Dr. PN testified that over the next 24 to 48 hours, she and other medical personnel were able to stabilize plaintiff, but he remained in extremely critical condition.

Dr. PN made the first order for wrist restraints on December 30, 2004, at 5:30 A.M. Orders for wrist restraints were written daily, from December 30, 2004 until February 6, 2005, while plaintiff was still in the intensive care unit. With respect to the need to restrain plaintiff in the critical care unit, Dr. PN testified that it was to protect himself as plaintiff was very dependent on a ventilator, required an endotracheal tube for his ventilator and multiple IV lines for his support, that he repeatedly reached and tried to pull out his lines.

Defendants also state that the flow sheets document that the nursing staff at the hospital checked wrist restraints for skin integrity, circulation and range of motion on regular intervals while plaintiff was restrained.

On February 11, 2005, physical therapy in Staten Island documented 15 to 20 degree extension/flexion in the left elbow and 15 to 30 degree flexion/extension in the right elbow. On February 14, 2005, plaintiff was evaluated for physical therapy. Bedside therapy was recommended three to four times per week to prevent further contractures and muscle weakness bilaterally in the upper and lower extremities and began at that time.

On April 5, 2005, one week prior to discharge, therapy documented a 15 degree lag in extension/20 degrees flexion of the left elbow and a 10 degree lag in extension/forty degree flexion in the right elbow. Despite two months of intensive therapy, after the wrist restraints were removed, plaintiff’s upper extremity contractures persisted.

On July 12, 2005, bilateral elbow x-rays performed at the Kings County Hospital outpatient clinic revealed a diagnosis of heterotopic ossification.

On August 19, 2005, surgery for the right elbow contracture release and excision of heterotopic calcification was performed at Kings County Hospital. On October 28, 2005, surgery for left elbow contracture release and excision of heterotopic calcification was performed.

Plaintiff commenced the instant action for medical malpractice and lack of informed consent in July, 2006.

In support of their motion, defendants argue that they are entitled to summary judgment dismissing the complaint based upon the affidavits of their expert physicians, which demonstrate that there was no departure from accepted standards of practice and that defendants did not cause plaintiff’s injuries.

A doctor (Dr. A) witness for the defendant testified that wrist restraints are routinely used for intensive unit patients who are often at increased risk of injuring themselves by pulling out therapies such as IV lines, endotracheal tubes, central lines and chest tubes. He also stated that wrist restraints allow for some range of motion and enable a degree of flexion and extension of the wrists and elbows and pronation and supination of the arms, as evidenced by the fact that on January 30, 2005 plaintiff was seen holding the dislodged chest tube tubing with his restrained left hand. The doctor said that there was no evidence that plaintiff’s wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff’s management.

Like Dr. A, Dr. B testified that there is sufficient documentation that the nursing staff continuously monitored the wrist restraints according to hospital protocol; that there was no evidence that plaintiff’s wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff’s management.

Dr. B further stated that despite intense physical therapy received after the removal of wrist restraints, the elbow contractures persisted.

Dr. B explained as well that heterotopic ossification is a medical condition which involves the gradual formation of bone in the soft tissue around major joints; that the normal soft tissue of the joint turns into bone; that it is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury, or central nervous system injury; that there is no medical evidence which suggests that heterotopic ossification has any relation to immobilization or restraint; and that physical therapy is not usually an effective treatment of heterotopic ossification and was not effective on plaintiff.

Further, Dr. B noted that plaintiff was diagnosed with a C1-C2 subluxation at the time of admission but no surgery could be performed because of plaintiff’s general medical condition, and that stabilization surgery was performed on March 28, 2005. He stated that the relationship between spinal injury and heterotopic ossification is well established, and that as a result of plaintiff’s spinal cord injury, he was diagnosed with spastic quadraparesis in the hospital ambulatory care clinic on June 16, 2006.

As such, Dr. B opined, with a reasonable degree of medical certainty, that plaintiff developed heterotopic ossification (HO) as a result of musculoskeletal trauma and spinal cord injury sustained during the automobile accident; that heterotopic ossification was not and could not be caused by wrists restraints.

On the other hand, the expert presented by plaintiff opined that it is widely accepted that gentle and active passive range of motion substantially limits the risk of HO and that the failure to position and move plaintiff’s arms for several hours during the day was a substantial factor in the development of his HO, to the degree and nature that it could cause such severe upper extremity dysfunction.

The expert also stated that even with HO, plaintiff’s severe bilateral elbow contractures were avoidable had his arms not been improperly restrained. He asserts that contractures occur when tendons/muscles harden and become `fixed’ or less elastic as a result of disuse; that in plaintiff’s case, the contractures were a separate and distinct injury from HO; and that the failure to reposition plaintiff’s arms for several hours a day on the days he was restrained was a substantial factor in causing his contractures and loss of range of motion in both arms.
According to the Court, the requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted standards of medical practice, and (2) evidence that such a departure was a proximate cause of the plaintiffs injury. On a motion for summary judgment in a medical malpractice action, 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. Defendant must make this showing through medical records and competent expert affidavits. Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to rise a triable issue of fact.

In this case, the Court held that defendants have made a prima facie showing entitling them to summary judgment with respect to their claim that the wrist restraints used on plaintiff did not cause plaintiff to contract heterotopic ossification. In this regard, both of defendants’ experts testified, and the record reveals, that the use of the wrist restraints on plaintiff was necessary because he was frequently described as restless and was considered at risk for self-injury. In addition, noting that heterotopic ossification is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury or central nervous system injury; that plaintiff had sustained spinal cord injury as a result of his accident; and that the relationship between spinal cord injury and heterotopic ossification was well established, Dr. B opined that plaintiff developed heterotopic ossification as a result of musculosekletal trauma and spinal cord injury sustained during the automobile accident, and that it was not and could not be caused by wrist restraints.

Defendants, however, have failed to make a prima facie showing that the wrist restraints did not cause plaintiff’s elbow contractures. In this regard, Dr. B opined that plaintiff’s elbow contractures were not caused by stiffness/tightness associated with atrophy from lack of use, asserting that there was no evidence that the restraints caused circularory impairment, were improperly positioned, or that plaintiff developed pressure sores in the upper extremities.
Thus, defendants’ own papers raise an issue of fact as to whether the proper protocols with respect to wrist restraints were consistently followed, and if not, whether the failure to do so was a proximate cause of plaintiff’s contractures.

In any event, plaintiff has raised a question of fact as to whether his heterotopic ossification and contractures resulted from defendants’ negligent use of wrist restraints on him, which precludes the court from granting defendants’ motion for summary judgment. With respect to plaintiff’s heterotopic ossification, plaintiff’s expert asserted that during some of the days plaintiff was restrained, he was not properly monitored according to hospital protocol. Plaintiff’s expert also opined that they were avoidable had plaintiff’s arms not been improperly restrained.

As such, defendants’ argument that plaintiff did not rebut their showing that there was sufficient documentation that plaintiff was continuously monitored, and that there is no evidence which suggests that heterotopic ossification has any relation to immobilization or restraint, is without merit.
Further, while defendants argue that plaintiff’s expert did not rebut their expert’s contention that heterotopic ossification is a rare condition and most frequently seen with, among other things, spinal cord injury, plaintiff’s expert raised an issue of fact as to whether the failure to properly monitor the wrist restraints caused plaintiff’s elbow contractures and heterotopic ossification. In addition, contrary to defendants’ claims, plaintiff’s expert specified how the restraint protocol was not followed.
That branch of defendants’ motion for summary judgment as to plaintiff’s cause of action for lack of informed consent was granted by the Court. Defendants have made a prima facie showing, through their expert affirmations, that a reasonably prudent person would have undergone all of the procedures plaintiff underwent if informed of the risks and benefits of the procedures. Plaintiff has failed to address this cause of action in his opposition.
Finally, in light of the factual issues raised, the court declined to search the record and grant plaintiff partial summary judgment.

In sum, that branch of defendants’ motion for summary judgment as to plaintiff’s cause of action for lack of informed consent is granted, and the remainder of defendants’ motion is denied.
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This appeal involves new legislation that concerns medical malpractice actions. The issue before the Supreme Court Appellate Division is whether or not the plaintiff’s failure to timely file a notice of the medical malpractice action was properly excused by the Supreme Court.

Case Facts
In March of 1986, the Queens plaintiff individually and as the administrator of her deceased infant’s estate started this action to recover damages for her daughter’s death as well as the conscious pain and suffering predicated by the Staten Island defendant physician’s alleged medical malpractice that resulted in the death of the infant.

In June of 1986, the defendant served an answer and sought discovery including the authorizations of all treating doctors’ records including hospital records and charts. The defendant also demanded a bill of particulars.

During a period of fourth months the defendant’s counsel requested authorizations from the plaintiff for the records that concerned the infant’s admissions. The counsel for the plaintiff does not dispute that the received this correspondence, but did not respond to it.

In March of 1987, the defendant moved for an order to dismiss the complaint on the basis that the plaintiff had failed to file a notice of medical malpractice action within 60 days and that the plaintiff had not made an application to extend her time to file the required notice.
Court Discussion and Decision
The original order made by the Supreme Court was in favor of the plaintiff and allowed an extension to be filed after the statute of limitations.

After reviewing all of the facts that have been presented in the case the court finds that the Supreme Court acted out of their discretion when they allowed the plaintiff to file a late CPLR notice. For this reason, the defendant’s motion to dismiss the complaint should be granted and the complaint against the defendant should be dismissed.
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The Staten Island plaintiff in this case is appealing an order made in the Supreme Court of Kings County. The order that is being appealed by the plaintiff denied his motion for summary judgment and granted summary judgment to the defendant dismissing the complaint as made against the defendant. The entire case stems from an underlying medical malpractice suit.

Court Discussion
Under the plain language of the insurance policy in question the plaintiff is not covered for contractual liability that was assumed by entering into service agreements with the independent contractors in the case. However, the plaintiff could have been held vicariously liable for the actions of the independent contractors and for that reason the plaintiff is entitled to recover his legal costs for defending against his own liability.

Court Decision
The court is modifying the original order that was made in the Supreme Court of Brooklyn. The provision of the order that granted summary judgment to the defendant to dismiss the complaint to recover legal costs incurred for defending the plaintiff’s liability in the medical malpractice action is deleted.

The provision of the order that denied the branch of the plaintiff’s motion for summary judgment for the claim for legal costs is deleted and in its place there is a provision granting this motion. The matter will be remitted to the Supreme Court of Kings County to determine the amount of legal costs that will be awarded to the plaintiff.
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The Queens defendant is appealing an order that declared they had the obligation to defend and indemnify the plaintiff in an action against him by the administratrix of the estate of the deceased. The order that is being appealed denied the cross motion for summary judgment and declared that the insurance policies in question were in full force and effect and invoked the duty of the defendant to defend.

Case Background
The plaintiff applied to the defendant insurance association for professional liability insurance coverage in January of 1981. The insurance association made an error that resulted in the policy not being issued until June of 1982. There were two policies issued at this time. The first policy was in effect from February of 1981 through February of 1982 and is referred to as the 1981 policy. The second policy was in effect from February 1982 through February 1983 and is referred to as the 1982 policy.

In October of 1982 the doctor requested that the 1981 policy be cancelled and that the down payment for that particular policy be applied to the 1982 policy. It was during the span covered in the 1981 policy that the doctor was sued for malpractice.

Court Discussion

The question before the Staten Island court is whether the retroactive rescission of the 1981 policy that was done with the consent of the insurance company precluded coverage for the malpractice claim brought after the rescission, but relating to a time that the policy was in effect.

The Supreme Court decision stated that the insurance company must defend the doctor in the malpractice suit and allowed the counterclaim by the company against the doctor for unpaid premiums open for future resolution.

Court Decision
The court has reviewed the case and has determined that the insurance company is obligated to defend the doctor in the malpractice suit. The issue of whether any type of malpractice that was committed by the doctor falls into the policy exclusions must be determined after the action is completed. Based on the information that the court has been confronted with the judgment is affirmed as appealed from.
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Appellant Hospital appeals an order issued by an administrative law judge [“ALJ”] finding that claimant was not subject to compensation under the Florida Birth-Related Neurological Injury Compensation Plan [“the plan”], because she was not permanently and substantially “mentally impaired” within the meaning of the plan. Appellants contend that, based on certain undisputed facts, she was permanently and substantially mentally impaired as a matter of law.
The minor child was born at Florida Hospital in Altamonte Springs, Florida, on November 28, 1997. She was deprived of oxygen during birth and sustained serious birth injuries. An expert said that, her parents filed an action for medical malpractice in Seminole County circuit court against the appellant Hospital, as well as the two physicians who provided obstetrical services to the child’s mother, and Mid-Florida OB/GYN Specialists, Inc. Both obstetricians were “participating physicians” under the plan and the hospital was a participating hospital, but the parents did not file or pursue a claim for benefits under the plan.

An Injury Lawyer said that, the Florida Birth-Related Neurological Injury Compensation Association [“NICA”] intervened in the circuit court action, claiming that the child’s birth injuries were subject to the plan. The circuit court abated the action and required the parents to file a petition with the Division of Administrative Hearings to resolve whether the child was covered by the plan. The NICA statute defines “birth-related neurological injury” to mean an injury which, among other things, renders the infant both “permanently and substantially mentally and physically impaired.” The parents’ position was that the child did not meet the criteria for coverage under the plan because, although she had suffered significant physical impairments, she had not sustained a permanent and substantial mental impairment.

A two-day hearing was held before an ALJ, principally to resolve the issue of mental impairment. The evidence adduced at the hearing showed that Raven had significant and severe physical injuries due to oxygen deprivation. It was essentially undisputed that she has cerebral palsy, which refers to a group of motor disorders caused by an injury to the developing brain. Also, the child’s CAT scans and MRI’s showed that she had sustained various permanent injuries to her brain. Her imaging studies show that she has damage to both sides of the basal ganglia and thalamus. There was also damage to the white matter surrounding the basal ganglia, the hippocampi, both frontal lobes, both parietal lobes, the corpus callosum, and the cerebral cortex. Most witnesses testified these injuries were diffuse, as opposed to global in nature. Her physical injuries include both spasticity and stiffness; when she tries to move, her body goes in the opposite direction and she gets posturing, as well as a wiggly movement. She is unable to walk or talk and has problems holding her head up and directing her gaze. She can crawl or sit up only with assistance. She cannot reach out and hold objects. She is unable to eat by mouth and must wear a diaper. Statistically, a little less than one-half of the children, who present with cerebral palsy, as the child does, are not cognitively impaired.

The issue in this case is whether the minor child has a permanent and substantial “mental impairment” in addition to the cerebral palsy.

Notwithstanding the evidence adduced at the hearing and the ALJ’s factual findings, appellants’ position, simply put, is that the minor child was permanently and substantially mentally impaired as a matter of law.

For this contention, the Court said that, they rely on 1997 Supreme Court decision. The 1997case involved birth injuries apparently similar to those sustained by the minor child in this case. As a result of birth-related events causing oxygen deprivation, the child in this 1997 case suffered a focal injury to the basal ganglia, an area of the brain which aids the body in performing “physical functions.” Despite severe physical limitations, testing indicated that he was average or even above average in his cognitive skills. His parents nonetheless sought compensation under the plan, claiming that he was “mentally impaired” within the meaning of section 766.302(2), Florida Statutes (1991). NICA denied coverage, and a hearing was held to determine whether his injury was covered by the plan. At the close of the opinion, the Supreme Court of Florida approved the hearing officer’s conclusion that he had sustained both mental and physical impairment within the meaning of the plan, briefly explaining: We are left with the hearing officer’s finding which is properly predicated on a reading of the statute in the conjunctive that the child is “permanently and substantially mentally and physically impaired and has suffered a `birth-related neurological injury’ within the meaning of section 766.302(2).” Having thoroughly reviewed the record and the hearing officer’s final order, we conclude that it is supported by competent and substantial evidence. Consequently, we disapprove the opinion below to the extent that it misconstrues the plain language of the statute, but approve the result, and direct that the case be remanded to DOAH for a determination of the amount of compensation he is entitled to under the NICA Plan.
In the case at bar, appellants construe the above-quoted passage from the 1997 case decision to create the definition of “substantial mental impairment” as this phrase is used in NICA. According to appellants, “The 1997 decision added to the definition of substantial mental impairment by effectively adding a requirement that the child be able to translate any cognitive capabilities into adequate learning in a `normal manner.’ “It is apparent, however, that the 1997 case court did not define or redefine “substantial mental impairment.” They simply said that the decision of the ALJ was supported by competent evidence. All this language in the 1997 case suggests is that, under NICA, the identification of a substantial mental impairment may include not only significant cognitive deficiencies but can include, in a proper case, additional circumstances such as significant barriers to learning and social development.

Appellants urge that, although the minor child’s brain injuries have not resulted in cognitive impairment, in the sense that they do prevent her from learning or thinking, they must, as a matter of law, constitute a “mental impairment” within the meaning of the plan because, she will require substantial accommodation in order to translate normal cognitive capabilities into learning. Apart from the evidence adduced and the findings made in this case, there are many other problems with this position. First, as a definition, it is not the plain and ordinary meaning of the undefined statutory term. The 1997 case court made clear that the plain and ordinary meaning of these terms should be applied. Second, it violates the definitional framework approved by the Supreme Court in the 1997 case. ‘The Statute is written in the conjunctive and can only be interpreted to require permanent and substantial impairment that has both physical and mental elements.’

To say that physical disabilities that impede the cognitive and social development of a child alone are enough to constitute a mental impairment violates the dichotomy identified by the high court. If this were the true definition of “substantial mental impairment,” then seemingly most children with cerebral palsy would be classifiable as “substantially mentally impaired,” although the evidence indicates that cerebral palsy and mental defect are two separate injuries. There was expert testimony that children with oxygen deprivation injuries “can be physically disabled, yet be intellectually preserved.” Cerebral palsy is a motor injury which occurs when the circuits in the brain that control movement are damaged, while cognitive injury or impairment occurs when circuits relating to memory or learning are impaired. Furthermore, according to the testimony, oxygen deprivation or hypoxia first attacks those areas of the brain which control motor function, and only secondarily results in damage to mental function.

Courts have always recognized that different juries may reach a different result on similar facts. It is common for us to see, for example, that juries have awarded significantly different sums for apparently identical injuries. We similarly see different outcomes when the fact finder is asked to determine whether a particular injury is “permanent” or “not permanent.” These differences arise not because we have an “unprincipled, incoherent system” but because such differences can arise in a principled and coherent system where every individual is guaranteed an opportunity to lay his own case before an impartial arbiter of the facts. In most cases, this is a jury. In cases such as the one before us, the ALJ, as fact finder, brings his own background, training, experience and expertise to the task of weighing and evaluating very sophisticated evidence. The child’s advocate likewise brings his own communication and strategic skills to the fact-finding process; and finally, the evidence in each case will vary in its power to persuade. This will be especially true in cases where the opinions of experts are considered. In each case, the ALJ appears to have attempted to apply the plain and ordinary meaning of the term “substantial mental impairment” to his evaluation of the evidence. The term is broad enough to encompass more than just damage to cognitive capacity, contrary to appellees’ argument, and more than merely the inability to “translate cognitive capabilities into adequate learning in the normal manner” or “impairment of social and vocational development,” as urged by appellants. Both the ALJ in the 1997 case and the ALJ in this case appear to have understood this and to have done their job conscientiously.

Finally, as judges, we learn, early on, that there are always fact situations at the margins where it is very difficult to determine the side of a line on which a particular decision will fall. That is one reason why our review is limited to whether the decision was supported by substantial competent evidence. Appellants bore the burden of persuasion in this case that the minor child was “substantially mentally impaired” and its evidence was not persuasive to the finder of fact.

Accordingly, The Court held that judgment is affirmed. Courts in Long Island and Staten Island would do the same.
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On September 21, 1982, the Queens complainant 32-year-old woman visited her accused gynecologist for her annual check-up. At that time, the gynecologist made note of a one-centimeter mass on the outside lower quadrant of the woman’s left breast which he tentatively classified as a galactocele or a milk-filled cyst, but no further tests were performed. Ten months later, the woman returned to her Staten Island gynecologist complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in the woman’s breast was diagnosed as cancer which had metastasized or spread, to three ribs and two vertebrae. The woman died nearly two years later, as a result of the extensive metastasis of the cancer leaving as the sole beneficiary of her estate her then four-year-old daughter.

At the time her condition was first diagnosed, she was in the process of obtaining a divorce from her husband who contributed nothing toward her own or her child’s support. Although after the birth of her daughter, she had discontinued working outside the home, she was certified as a teacher for kindergarten through twelfth grade and had been a permanent substitute teacher in the Lawrence school district for one and one-half years prior to her daughter’s birth. She held undergraduate degrees in art education and psychology and was working toward obtaining an advanced degree in psychology in preparation for a child psychology program. She had always been a very self-sufficient and independent person. She had fully participated in the daily activities of her child. Because of her rapidly deteriorating physical condition and the negative effects of the medical treatment, the woman’s life changed to a tragically radical degree. She initially underwent two months of hormone therapy which was discontinued when she stopped responding. She began experiencing excruciating pain in her right leg which was determined to be caused by an additional lesion. She was then placed on a program of pain killers including morphine and methadone which her treating physician testified only dulled the recognition of pain in the brain but did not eliminate the pain. She also received a combination of five chemotherapy drugs which caused debilitating side effects. She became constipated, weak and tired, suffered from insomnia and began losing weight at the rate of two or three pounds per week. Her bones became very brittle and she was warned by her physicians to be very careful to avoid breaking them. In fact, she had to be hospitalized on three separate occasions for hypocalcaemia which is an elevation of calcium in the blood causing sleeplessness, lethargy, confusion, difficulty in walking, severe dehydration and ultimately death. The continuous vomiting caused by the chemotherapy resulted in dental infections and the loss of six teeth which she had to have extracted with only a minimal amount of novacaine due to the chemotherapy.

The woman became a virtual invalid. She relied on a homemaker, her friends and family to care for her child, to shop for her, to clean her house, to prepare meals and to drive her to the hospital. She had no physical strength. She was too weak to pick up her daughter or to perform any type of housework. Moreover, because of her weakened bones, she was afraid to go to any crowded places such as a train station or shopping mall for fear of being hit in her ribs or vertebrae. In any event, she was physically unable to shop for herself. Her social life became nonexistent.

Perhaps the more difficult pain for her was the emotional and psychological pain she suffered as a result of the loss of control over her life, the changed attitudes toward her of her family and friends and the strain of her illness on her relationship with her daughter. Her daughter was greatly affected by her illness and had difficulty understanding why her mother could no longer participate in activities with her. While she arranged for her daughter to be raised by her brother and sister-in-law who have three sons, she was saddened that she could bear no other children to provide brothers and sisters for her daughter.

In view of the woman’s extensive losses and suffering, the aggregate award on the first cause of action was well within the bounds of reason. The question remains whether, notwithstanding the reasonableness of the award, the trial court correctly included in its instructions on damages, a separate instruction on loss of enjoyment of life. The trial court’s instructions to the jury were entirely proper.

The complainant commenced an action to recover damages for conscious pain and suffering and wrongful death. The woman’s gynecologist and his professional corporation are charged with various acts of medical malpractice stemming from his failure to properly diagnose the woman’s breast cancer and to provide appropriate medical care and treatment. The jury, after finding the accused 90% liable and the deceased woman 10% contributorily negligent, rendered award of damages, in accordance with the court’s instructions and special interrogatories.
The accused gynecologist immediately moved to set aside the verdict on the grounds that as to liability the verdict was against the weight of the evidence and inconsistent. The gynecologist further charged that the damages awarded for the injuries were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the complainant. The amount of the judgment with interest, costs and disbursements totaled $845,772.59.
The accused gynecologist’s appeal, arguing that the verdict as to liability is against the weight of the credible evidence adduced at the trial, the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and the awards to the woman’s child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.

The trial court’s denial of the accused gynecologist’s motion to set aside the verdict in favor of the complainant as against the weight of the evidence is affirmed. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence. On such a review, the evidence must be viewed in a light most favorable to the complainant to determine whether a sufficient rational basis exists to support the jury’s finding of liability as to the accused.
One of the key issues in controversy at trial was whether the lump that the gynecologist first noticed in the woman’s breast in September 1982 was the same as the cancerous tumor surgically removed from the woman’s breast one year later. Apparently because of the woman’s history of being cystic, the gynecologist was not overly concerned about the lump upon its initial appearance. According to his trial testimony, after making a tentative determination that the lump was a one centimeter galactocele and making a diagram indicating the location of the lump, he advised the woman to return for a follow-up examination in two or three months. He conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the woman to examine her breasts during the intervening period. His office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to the woman.

In the course of the woman’s examination before trial, conducted prior to her death and read into the trial record in pertinent part, she testified that her gynecologist had found her to be in good health at the time of her checkup in September 1982 and told her to return in a year. Discovery of a painful lump and swelling under her left arm prompted the woman to return to her gynecologist. During that examination, she saw a diagram in her file with an X where the lump was. To her surprise, her gynecologist had been aware of the lump, identified it as a cyst and reassured her that he was watching it. No recommendation was issued that a mammography be performed or another physician be consulted. Her doctor simply prescribed vitamins and instructed her to return after her next period. Only later when she consulted the surgery doctor, upon her gynecologist’s recommendation did she learn the gravity of her condition. The surgeon was able to confirm the presence of cancer after only a brief examination because the skin in the area of the lump had a dimpling effect resembling the skin of an orange when it was palpated in a certain manner. Owing to the advanced nature of the cancer, a lumpectomy rather than a mastectomy was later performed. Following surgery, the woman was placed on a regimen of hormonal therapy and later chemotherapy.
The gynecologist’s expert evidence consisting of the testimony of a specialist in obstetrics and gynecology, and a pathologist, was presented to refute the allegations of medical malpractice. The accused parties’ experts were consistent in their opinion that although the lesion which was palpated in September 1982 was in the same location as the tumor removed in September 1983 the former did not lead to the latter. The basis for the opinion was the theory of doubling times which refers to the growth rate of tumors. According to the doubling times concept of oncology, a tumorous mass hypothetically doubles in size every 60 days. If the theory were followed in its strictest sense, the woman’s September 1983 tumor would not have been palpable in September 1982. However, the accused parties’ experts agreed that studies measuring the growth rate in the human breast as opposed to the laboratory have shown doubling times ranging from 20 to 209 days. The gynecologist expert also conceded that the failure to take any measures following the discovery of a lesion in the woman’s breast in September 1982 would have been a departure from accepted medical practice. His opinion that the woman’s gynecologist had acted in accordance with accepted medical standards in the community stemmed from his rejection of the woman’s statements that her gynecologist did not tell her about the lump.

With due deference to the jury’s determination based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, we cannot say that the evidence so preponderant in favor of the gynecologist that the jury could not have reached their conclusion upon any fair interpretation of the evidence. Viewing the entire body of evidence, it was entirely plausible for the jury to conclude that the lesion noted in the woman’s medical record in 1982 developed into the malignant tumor removed in 1983 and to find that the gynecologist was negligent in failing to order tests or to follow up his initial examination to check the condition of the lump. The total verdict reflected a thoughtful evaluation of the evidence and not merely a determination, as the gynecologist suggest, which reflected an overriding sympathy for the woman’s infant daughter. Therefore, the verdict as to liability must stand.
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Medical malpractice lawsuits can be sought for many different reasons. Some of them involve birth injury, and some, like the present case involve the care of the elderly. Elderly care homes in New York are governed by many laws, the application of these laws can differ depending on the court system. When a party to a case feels that the rights of one of the parties has been violated, or the laws in the case have been misapplied, it becomes the job of the Supreme Court to evaluate the outcome and decide if the case needs to be reviewed.

In February of 2009, an elderly woman from Queens was living as a long term patient of a nursing home in Rochester, New York. One of the issues that placed her in the care of the home involved a bladder problem. This woman was unable to void her bladder without the assistance of a catheter. Therefore, every day, she had to wait on one of the staff of the home to come and help her to urinate. One night, the staff member failed to come to the aid of the woman. She was desperate for relief and decided that she would exit her bed by herself and attempt to go to the bathroom. When she stood up from her bed, her bladder released causing a puddle on the floor of her room near her bed. She slipped in the puddle and suffered from severe injuries including broken bones. She was not treated for her injuries until her son in law arrived several days later. Her son in law is a doctor. When she told him about the injury and that she was in horrible pain from it, he had her transported by ambulance to the hospital. It was only at that time, that the extent of her injuries were revealed. Her family was distraught that their mother had not received the minimum standard of care that was expected. They filed a medical malpractice lawsuit in her behalf. They used as a standard for their contentions that the public health laws had been violated a case that involved another patient of a long term care nursing facility.

This woman was a young woman who was in a persistent vegetative state. The case is referred to as Doe. The reason that her mother filed a lawsuit alleging violations of the public health laws was that her daughter had been injured in an automobile accident. She was in a persistent vegetative state when it became apparent that she was pregnant. Since she had been a resident of a long term home for more than a year at that point, it was obvious that she had been raped while in their care. She delivered a baby boy by caesarian section. DNA evidence was used to determine which employee of the facility had raped her. Her mother’s contention was that her daughter did not receive the minimum standard of care for a patient in her condition as evidenced by the fact that one of the staff had raped and impregnated her. She proved her point and won her lawsuit. The case is now used as a precedent for nursing home violations. The public health law was instituted to prevent the types of abuses that were evidenced in the current case and the case of Doe. In order to insure that our loved ones who by necessity are bedridden and in a long term home facility, laws that govern insufficient care are important. Nursing homes in Staten Island must be accountable for any abuse or neglect that may occur on their property. However, because the laws are so complicated as they relate to nursing home abuse, it is important for anyone who believes that their loved one has been treated inappropriately to contact an attorney.
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On April 6, 2007, the New York State Emergency Medical Services (EMS) responded to a call just before ten at night to an apartment on Colonial Road in Brooklyn. The call was related to a twenty-five year old woman bleeding vaginally. Upon their arrival, the EMS team noticed that there was blood in the shower area and that the young woman who was seated on the commode was bleeding from her vagina. She was cold and clammy and was transported immediately. The EMS team asked her if she was pregnant or if she could be pregnant. She stated that she was not. However, upon admittance into the hospital at Lutheran Medical Center, the doctors discovered that it was clear that she had recently given birth to a child. The woman refused to admit that she had delivered a baby.

The hospital personnel contacted the police department to locate the baby. The police officers returned to the apartment and questioned the sister of the woman who was in the hospital. They told her that the hospital had said that there was a baby and that they needed to check on the welfare of the child. They repeatedly asked the sister where the baby was. She denied that there was a baby, but finally told them that there were several garbage bags outside in the cold night air behind the apartment. When the officers examined the contents of the garbage bags, they discovered the body of a newborn infant girl in the trash. She was still alive, but showing no signs of life other than being pink in color. She was intubated and transferred to the hospital for emergency medical care. The infant died shortly after arrival. Her cause of death was from exposure to the cold and hypoxia brought on by being tied up in a garbage bag.

The young woman was charged with homicide in causing the death of her newborn infant. The defense attorney filed a motion to suppress the evidence that was collected by the police officers because they contend that it should be excluded from the case under the exclusionary rule. Their contention was based on the idea that the police officers had responded to the location without a warrant and had located the infant based on confidential medical information that was illegally obtained.

The state maintains that the doctors were well within the law when they contacted the police department with the information that the mother was admitted to the hospital after having just given birth to a child that was missing. It is a statutory requirement that any child that is endangered by reported to the police immediately. The facts of the situation made it obvious that the child was endangered. When any woman is admitted into a hospital denying that she has given birth, when the evidence is clear that she has, must cause concern. The fact that she would not reveal the location of the infant would lead a reasonable person to believe that the infant is most likely endangered, especially, given the temperature that night in April. The police were then legally notified that there was a possibly endangered child at the location where the woman had been collected. The police in Queens and Staten Island were then legally responsible to go to the location and make reasonable inquiry into the location of the infant. The court maintained that there was no impropriety taken in searching the garbage bags and locating the infant.

Thus, the woman’s defense counsel was denied their request to suppress all of the evidence that was located following the disclosure to the police by the doctors that she had recently given birth. The court determined that all evidence was legally obtained and was therefore fully admissible in a court of law.
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Two teenagers underwent heart treatment when they were young children. As a direct result of this treatment they suffered from brain damage. Both of these teenagers were treated at hospitals in Bristol.

These teenagers have been awarded half a million pounds each to compensate for medical negligence. The money was awarded as a settlement from the Bristol Healthcare NHS Trust in the United Kingdom. The report noted that the money is awarded to help deal with ongoing medical expenses, and prior suffering and treatment expenses.

The standard of surgery conducted by a pediatric cardiac unit in Bristol was called into question almost ten years ago. A public enquiry was conducted to look specifically at the risks. The report found some startling results. The Lawyer has obtained a copy of the public enquiry report which shows just how serious the scandal really was.

This uncovered what was branded the Bristol Heart Scandal by the papers. The poor treatment resulted in the deaths of thirty five young patients, and more were severely injured. Many of the injuries included brain damage which will affect the patients for the rest of their life. The study found that the mortality rates in these hospitals were double most other hospitals.

The patients both argue that the level of care and the standard of surgery were far below what was expected. Not only did the treatment put their lives in danger, but it has left them permanently disabled. One of the patients requires around the clock care due to severe brain damage. This care is currently provided by her grandmother, but it is not clear what will happen when she is unable to care for her.

Although both of the cases have been settled, the NHS trust points out that they have not admitted liability. They offered the compensation as a way to safeguard their lives and ensure that they can afford to live. This ruling has hopefully made it much easier for the two patients who have been left disabled for the rest of their life. Hospitals in Queens and Staten Island are aware of this circumstance.
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The husband of a wife who has suffered brain damage is suing the hospital for medical negligence. The husband is the chair of the Irish Recorded Music Association and a prominent member of the community noted the report.

The husband of the patient is suing the Health Service Executive in relation to the treatment that his wife received. The Staten Island doctor and consultant are also involved in the lawsuit. The patient experienced a loss of memory and depression due to bran damage caused by the operation.

The husband claims that his wife’s entire personality has been changed. She was very confident and outgoing when they first met. Now though, she is very different. She is more vulnerable and delicate. She is also left unable to work because of the injuries sustained which resulted in permanent brain damage.

The Lawyer currently handing the case explains that she experienced stomach cramps and pains when she was on holiday in 2005. When she returned home she had a laparotomy operation.

The court was told that the condition of the patient deteriorated very quickly. This meant that the patient was very ill and had to have a second operation to try and resolve the problems. She was rushed into surgery for the second operation.

The patient’s husband later told the court that his wife never actually got better. Also she started acting differently to how she normally did. She told her husband that she was pregnant, and also that her father had visited her – her father had been dead for years before this. This is thought to be because of the brain damage caused during the operations.

The patient’s husband is currently suing the hospital and doctor for the brain damage. This brain damage has completely changed his wife. The reason for the brain damage I believed to be due to a lack of Thiamine or Vitamin B1 while she was treated.

The case is currently ongoing. The hospital denies any liability and says that these complications are a well-known risk of such operations even in Westchester.
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