Plaintiff Miscarriage Two Weeks after Accident Raises Issue of Fact as to Whether Accident-Related; Defense No-Fault Summary Judgment Motion Denied

Case: Brown v. Mat Enterprises of NY Inc.

Court: Supreme Court, Appellate Division, First Department, New York

Date: 7/3/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

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RELATED POSTS:

MEDICAL MALPRACTICE OBSTETRICIAN GRANTED SUMMARY JUDGMENT WHERE CONTINUED EMERGENCY C-SECTION AFTER FETAL HEART RATE LOST; NO EVIDENCE THAT DOCTOR SHOULD HAVE KNOWN THAT FETUS WAS BEYOND RESUSCITATION

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Facts: "Loss of a fetus" is a "serious injury" under N.Y.S. No-Fault law. However, it can be rather difficult to prove. Women miscarry for various reasons; often there is a delay between the accident and the loss of fetus. This can give rise to difficulty proving "causation" -- that the accident caused this very awful injury.

In this case, plaintiff was injured in a car accident. She lost her fetus 2 weeks later. However, she (and the fetus) had a physical examination during the two week period, where everything was found to be normal. The defense doctor examined plaintiff's medical records and concluded that the loss of her baby wasn't due to this accident.

This accident victim countered the finding of the defense doctor with an affidavit from her own obstetrician, who blamed the loss of her fetus on the car accident. This, despite plaintiff's prior births and abortions.

Held: Plaintiff raised an issue of fact as to whether this accident caused her to lose her fetus. The defense is denied summary judgment on the issue of whether she suffered a "serious injury" under New York's No-Fault law and this case will go towards trial.

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