Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.
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A Washtenaw County Circuit Court jury awarded a teacher $2.5 million in a medical malpractice verdict, after suffering permanent injury during a procedure at St. Joseph Mercy Hospital. Amy Garcia suffered a miscarriage in 2007 causing the death of her 14-week-old fetus and as a result required a dilation and curettage procedure.

Dr. Norman Gove, an obstetrician and gynecologist, told Garcia that the procedure was routine, according to her testimony. The lawsuit contended that Gove failed to properly supervise the resident physician’s work and in an effort to remove the fetal remains had inserted ring forceps through the perforated uterus and ended up grabbed a piece of bowel that snapped back. The patient’s rectum and bowel were then torn, the suit states.

Every field of surgery has its own common surgical errors. In obstetrics and gynecology, recurrent surgical errors involve injuries to the ureter during hysterectomies, injuries to the baby during a Cesarean section, and various injuries during operations for prolapse. This case involves a uterine perforation during a dilation and curettage (D&C). Whether there is a fetus in the uterus or not, most uterine perforations during D&C’s are preventable with the exercise of proper care and surgical technique. Each case is different, however, but if the uterus ends up having to be removed as a result of the perforation, one of the key pieces of evidence is the pathology report which will describe the area of the perforation in detail. It is important to remember that a D&C, however, is a “blind” procedure in the sense that the surgeon cannot see the inside of the uterus or the tips of the surgical instruments; the procedure is essentially done by feel.

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For those of us who represent plaintiff’s in medical malpractice cases it is, of course obvious that the law requires the Notice of Claim to be served on The New York City Health and Hospitals Corporation. It is basic law that service upon the Comptroller of the City of New York is insufficient and will lead to a dismissal of the claim and a potential legal malpractice case. Yet time and again we see cases where the plaintiff’s attorneys served the City of New York resulting in a dismissal of the claim. So was the case in Barnaman v New York City Health and Hospitals Corporation, et al., New York Appellate Division, Second Department, December 6 2011 in which plaintiff’s complaint was dismissed after the statute of limitations had run. The failure of The City of New York to plead an affirmative defense is of no consequence as is their participation in discovery. As The Court stated;

“Contrary to the plaintiff’s contention, the defendants were under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement (see Laroc v City of New York, 46 AD3d 760, 761; Maxwell v City of New York, 29 AD3d 540, 541; Lynch v New York City Tr. Auth., 12 AD3d 644, 646). Furthermore, the defendants’ participation in pretrial discovery did not preclude them from raising the untimeliness of the notice of claim (see Laroc v City of New York, 46 AD3d at 761; Wade v New York City Health & Hosps. Corp., 16 AD3d 677; Hall v City of New York, 1 AD3d 254, 256).”

In fact the motion to dismiss can be made at the start of trial and will be granted by the Court.

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Fetal monitoring system display

Los Angeles County officials are expected to approve a $2.8 million settlement of a medical malpractice suit filed against medical staff at County Harbor-UCLA Medical Center over their failure to perform an emergency cesarean section after signs of distress. The 18-year-old woman, Guadalupe Fernandez, gave birth to a son who was later diagnosed with neurological injuries from fetal distress, according to court records.

Even after a completely normal prenatal course, a fetus may not tolerate the stresses of labor well. The main way that doctors and nurses have of following fetal well-being during labor is the electronic fetal heart monitor. If the fetal heart monitor shows evidence of fetal oxygen deprivation (fetal distress), the first step is try to make the problem go away by changing the mother’s position, giving the mother some oxygen to breathe, and increasing her IV fluids but decreasing or discontinuing any Pitocin that may be running. If these measures are not successful, then a fetus that is showing evidence of distress must be delivered via an emergency Cesarean section as soon as possible in order to prevent permanent brain damage.

Many medical malpractice cases revolve around the claim that the evidence of fetal distress on the monitor tracing was not properly assessed and that the baby sustained permanent brain damage (often cerebral palsy) because of the prolonged oxygen deprivation that resulted from the failure to perform an emergency Cesarean section.

Los Angeles County will also pay a $16,208 Medi-Cal lien issued against the family and waive Fernandez’s bill of $19,455 in addition to covering nearly $52,000 in legal costs, including attorney fees, in the case.

As a result of any settlement, the hospital is required to devise a plan of correction, much of which has already been implemented. Part of the plan involved a comprehensive survey to assess the hospital system’s protocols, along with training and credentialing procedures. According to the county, a further review of the hospital’s treatment history showed complication rates are at or below national benchmarks.

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In personal injury cases in New York the defense of an intervening act as a superseding cause of plaintiff’s injury will often be raised to absolve defendant’s negligence as a proximate cause of plaintiff’s injury. From the plaintiff’s perspective it should be argued that questions of causation are in most cases for a jury to decide. Further such acts must be argued to be not of such an extraordinary nature as to break the causal connection between defendant’s negligence and plaintiff’s injury.
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This presentation is part of the New York State Bar Association Construction Site Accidents seminar 2009 In this segment Howard completes the opening for plaintiff followed by the opening for defendant. This years program will be held State Wide in December. Ben Rubinowitz will chair the seminar in Melville, New York on Friday December 2, 2011. For complete details see our prior post, Labor Law/Construction Site Accidents in New York.

http://www.youtube.com/watch?v=RN-gk99h9P0

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In Salazar v.Novalex Contracting Corp., et al., decided on November 21, 2011, The New York Court of Appeals in a 4-3 decision granted defendants’ motion for summary judgment dismissing a construction worker’s 240(1) claim. The plaintiff suffered injury while working in the basement of a building undergoing renovation. The facts of the accident as set forth by Judge Pigott, writing for the majority were in pertinent part, as follows;

“The accident occurred in the largest room of the basement, which had a trench system,for piping. Salazar and the other workmen were laying a concrete floor. They were directed to pour and spread concrete over the entire basement floor, including the trenches. Before he began work on the day he was injured, Salazar looked for, and visuallylocated, the trenches.

The concrete flowed from a truck into wheelbarrows placed in the basement, via a chute fed through a window. Workmen poured the wet concrete from the wheelbarrows onto the floor of the basement, where Salazar and others “pulled” the concrete with rakes, ensuring that the floor would be level. As Salazar explained the next stage of the process at his deposition, the trench system fills with concrete “by itself because the concrete runs and it fills it out . . . the concrete kind of slides down or runs down” into the trenches. Salazar was injured after he stepped into a trench that was partially filled with concrete. He had been walking backwards across the floor, “pulling” concrete with a rake held in front of him, and looking forward, rather than in his direction of motion. As Salazar recalled the incident, “one of the trenches began to fill out with concrete, and at some point when I was pulling, walking backwards, . . . my foot got inside, into that hole.” After Salazar’s right foot hit the bottom of the trench, his right leg folded beneath him. Before being assisted out of the trench by his coworkers, Salazar tried to pull his leg out “on my own, myself, and that’s how I hurt myself.”

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http://www.youtube.com/watch?v=QHTQ8y3c9AM
One of the best New York personal injury trial lawyers, Ben Rubinowitz, a partner at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf , demonstrates the importance of a well prepared opening statement. The presentation was given to lawyers at a Trial Law seminar in 2009. The case involved a pedestrian who was struck by a car. The driver of the car claimed, in a misleading and improper manner, that the pedestrian was fully at fault for the happening of the accident. The medical proof told a very different story than the less than truthful statement of the driver.

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