This is a medical malpractice case where it is alleged that the plaintiff suffered from injuries as a result of the still birth of her infant as a result of prenatal malpractice and negligence of the defendants.
The plaintiff sought prenatal care from the defendants starting in July of 2001 through November of 2001 for her pregnancy. The result was a still birth on the fourteenth of December. The plaintiff states that she was exposed to DES which increased her risk of having an incompetent cervix and that the defendants should have performed a cerclage procedure in order to tighten her cervix to prevent a still birth or miscarriage.
The plaintiff started this case in June of 2004. There are six causes of action asserted by the plaintiff including medical malpractice, lack of informed consent, negligent infliction of emotional distress, negligent hiring and retention, and inadequate staffing and negligent health care facility administration.
The plaintiff’s cause of action for medical malpractice and for lack of informed consent is governed by a 2 and ½ year statute of limitations. It is noted that the plaintiff did not seek treatment from the defendants after the 8th of November, 2001 and because of this these causes of action are both time barred.
The cause of action for negligent infliction of emotional distress was only recently created by the court of appeals where it was held that even in the absence of an independent injury medical malpractice that results in a miscarriage or still birth should be construed as a violation of a duty of care to the expectant mother entitling her to damages for emotional distress.
The Bronx and Brooklyn defendants argue that this is barred by the two and a half year time limit as well. However, the new ruling may have changed this. The plaintiff must provide evidence to demonstrate that the defendant’s action was a departure from the accepted standard of care in the medical community.
The motion by the defendants for leave to reargue separate orders are granted and upon re-argument the summary judgment motion from the doctor is granted to the extent that all of the causes of action that were asserted against him.
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