NYC Injury Headlines

Case On Negligence On The Part Of Nassau County Medical Center

In the case before us, the infant plaintiff alleges that his epilepsy and developmental disabilities were the result of negligence on the part of Nassau County Medical Center and its employees in connection with his birth in September 1993. The medical employees in attendance gave his mother pitocin, a drug used to facilitate the birth. The delivery involved two attempts at vacuum extraction and, ultimately, the use of forceps. According to the hospital records, the mother's pelvis was adequate to accommodate the baby's head and the birth [*3]was without complication. The infant weighed eight pounds, three and one-half ounces. His Apgar score (an index to evaluate the condition of a newborn infant with ten being a perfect score) was within satisfactory range: eight at one minute after birth and nine at five minutes after birth. The records also reveal that there were marks on his forehead from the forceps and his clavicle was broken.

In support of his motion for late service of a notice of claim, plaintiff submitted an affidavit from a physician who interpreted the hospital records and alleged that the hospital knew or should have known that complications would and did occur. He averred that the size of the mother's pelvis and signs of fetal distress argued against the use of pitocin, and that after birth the baby was trembling and showed physical signs of trauma. The defendants argue that plaintiff's disability was not apparent until, at the age of one or two, he began to experience epileptic seizures and show delayed development.

The record reveals that in 1995 plaintiff had an electroencephalogram (EEG), a test to trace his brain waves. The results were normal, but EEGs in 1998 and 1999 showed signs of abnormality. On September 3, 2003, ten years after plaintiff's birth, his counsel sent the hospital a notice of claim alleging, in essence, that plaintiff suffered brain damage resulting from the hospital's malpractice during his delivery.

Section 50-e (5) reads in its entirety: "Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits."

Accordingly, the Appellate Division order should be affirmed, with costs.

Order affirmed, with costs. Opinion by Judge Rosenblatt. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.
Decided April 4, 2006