Posted On: April 1, 2012 by Stephen Bilkis

Tammy Bennett was in a car accident on September 26, 2001

Tammy Bennett was in a car accidenton September 26, 2001. She was pregnant at that time. She was taken to a hospital in MacClenny, Florida, near where the incident occurred. Fetal testing was performed, and the medical staff decided to airlift her to St. Vincent's Hospital. Mrs. Bennett’s kidney failed, and they had to do a caesarean section to get the baby. According to a report, this was done by Dr. Long, her obstetrician. They started the operation at 1:16 p.m., and Tristan Bennett was born at 1:22 p.m. They noted a placental abruption. A placental abruption is a complication of pregnancy. It is when the placental lining has split from the mother’s uterus.

According to the hospital record, Tristan did not cry when she was born. Her breathing was slow, so they had to be resuscitated with a CPR mask face mask with free flowing oxygen. His Apgar score was six at one minute and eight at five minutes. This is considered as normal. The Apgar test is done to determine the health of a new born. It requires a check on the appearance, pulse, grimace, activity and respiration, said a rep. When the Cord Blood gas test was done, it showed a profound metabolic acidosis. This meant that there was something that was causing his kidney not to clear acidity in his body. At first, she was placed at the newborn nursery but was transferred to the special care nursery after about twenty-five minutes because she was having difficulty breathing and the metabolic acidosis.

The initial problems that she had were all resolved. She had other conditions in the week that followed her birth that were all relater to kidney and liver damage. There was no continuing treatment for the respiratory distress. There was no documented neurological damage. A pediatric neurologist was not consulted or requested to check the infant. From the information found by a study, seven days after, she suffered from a pulmonary hemorrhage. There were times that she was not breathing. She was spitting blood from her lungs through her mouth. Her heart rate was really slow. Her condition was unstable the whole day and showed signs of neurologic abnormalities at the end of the day. The following day, more possible seizures and central nervous system tremors were noted. They had electroencephalogram (EEG) and computerized tomography scan (CT) done. A pediatric neurologist was consulted. There was a possible neurological damage which included a multicystic encephalomalacia of the cortex. This is multiple sized cysts in the brain typically when infants suffer a lack of oxygen to the brain.

The Bennett’s filed a court case against William H. Long, his professional association, St. Vincent's Hospital and other parties. The trial court halted the procedure pending the decision if the injuries of the infant can be covered by the Neurological Injury Compensation Plan (NICA). The NICA plan is limited to those cases that are within its defined limits. The eligibility is determined in Division of Administrative Hearings. Their job is to determine, first if the claim is a birth-related injury. The second is “whether obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate post delivery period in a hospital.” The last is how much compensation should be given. The decision of the district court as it would be in Staten Island and Queens was that the Mr. and Mrs. Bennett are not eligible. This was appealed by them in with the Supreme Court.

In the deliberation of the Supreme Court, they said there were only two things to be settled the meaning of post delivery period and definition of birth-related injury. This is because Mrs. Bennett gave birth in the hospital with a participating physician. In the Bennett’s claim for NICA coverage, they claimed that the medical providers of Tristan after her birth committed numerous errors. They cited allegations like administering too much IV fluid and failing to test for serum electrolyte derangements until well after the infant had been delivered. The Administrative Law Judge, in review of the records and the testimony of physicians and other witnesses determined that the injury is not birth-related. A lawyer says that the court defines the “resuscitation in the immediate post delivery period” as the time immediately after the birth. If there is continuing and ongoing attempts to resuscitate, then it is only logical to see that the time until they are able to fully revive as part of the post-delivery period. If the infant is placed in a Cardiopulmonary bypass, the post-delivery period is already stopped. Cardiopulmonary bypass is the one that regulates the circulation of oxygen in the blood as well as the flow of the blood itself in the body. The time when the cause for the injury happened in very crucial for their determination for eligibility as it is specified by their rules. One of the reasons they rejected eligibility is that Tristan responded to treatment. The first seven days, he was okay and his vitals were normal. There were no problems neurologically. They also considered how the infant was born. The doctors had to do a caesarean section, so the oxygen deprivation that caused the neurological damage was not in the while delivering that baby.

In the conclusion of the court that for the injury to be considered as birth-related neurological injury caused by oxygen deprivation had to occur during labor, delivery or the period immediate after delivery. A source says it does not include the extended period when a baby was delivered in a condition that is considered as life threatening. This is unless there was a continuous effort to resuscitate. The decision arrived at by the Administrative Law Judge, and the Supreme Court was the same. The infant is eligible for the NICA plan. There is one judge who dissented saying that the rule does not prevent claims when the neurological damage shows at a later time. In this case, it could have been argued that the effect only showed seven days after even if the cause was in birth. The judge also says that the provision should be seen on a case by case basis. It should not be looked at as comprehensive or all encompassing.

Children, especially infants, suffering personal injuries are the hardest to look at. They are also the one’s that need protection. The need for New York Personal Injury Lawyer for these cases is really vital. They are the ones who know which claims and from whom you can get them from. They also know the process that needs to be followed.
If you or your child has suffered any personal injuries, you may be entitled to compensation. Stephen Bilkis & Associates have experienced Personal Injury Lawyers who will give you your options and protect you and your child’s rights. If this was because of a car accident we also have Car Crash Lawyers who can handle your case. You can walk in any of our offices in New York and Long Island. You can also call us now at 1-800 NY - NY- LAW and you can get a free consultation.