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The infant’s mother was under the care of East Bronx Medical Group

The Facts:

The infant’s mother was under the care of East Bronx Medical Group during her third pregnancy. On 2 April 1969, at about 11:30 P.M., she was admitted to Bronx Lebanon Medical Center in the early stages of active labor.

Doctor-one of the Medical Group determined late in the mother’s pregnancy that her uterus may have been developing larger than normal. X-ray studies ruled out any congenital abnormality or multiple births. Clinical pelvimetry, which is an internal examination of the dimensions of the pelvic canal, revealed that the intertuberous measurement was 8.0 centimeter which indicated that the mother had an adequate pelvis for the delivery of a child. Moreover, the mother had already given birth to an average-sized baby without any difficulty.
Present in the delivery room and attending to the mother were doctor-two, the patient’s private obstetrician and a member of the Medical Group, and doctor-three, a second-year resident who had performed 150 deliveries, a third of which were forceps deliveries.

At the delivery room, within two hours of labor, the head was engaged; and within three hours, the cervix was fully dilated, was completely effaced and the membranes ruptured. At this point, doctor-two and doctor-three found no abnormality and they found no reason that the fetus could not be delivered by normal vaginal delivery. Fetal distress was noted at 2:23 A.M., the umbilical cord was found wrapped around the child’s neck, a probable cause for the fetal distress. The fetus was low down in the pelvis, in a face up position rather than the more common face down position. Several unsuccessful attempts were made to manually rotate the fetal head and, since time was of the essence, doctor-two decided that a mid-forceps delivery was necessary. Doctor-three agreed with the decision. Doctor-three used the forceps under the supervision of doctor-two and the fetal head was delivered by intermittent traction and relaxation in an attempt to simulate the normal uterine contractions. Doctor-three testified that he had to exert more force than usual to deliver the head in the face up position, but used no more force than was necessary. On delivery of the head it was discovered that the umbilical cord was wrapped around the neck and that the child was cyanotic. The umbilical cord was removed and gentle manual traction was applied to the head in an attempt to deliver the rest of the fetus. However, it was then observed that the shoulders were not being delivered; they were impacted, a condition known as shoulder dystocia. The right shoulder had overridden the public bone and was obstructed by it, preventing delivery. Because the baby was partly delivered, a Caesarian Section at this point was impossible. The child had to be delivered vaginally and, since the child had difficulty breathing, his shoulder had to be freed within a few minutes. In this situation, doctor-three applied gentle traction to the head to extract the child, each physician attempted to rotate the shoulder by the corkscrew method, that is, the manual rotation of the fetus, and doctor-two applied fundal pressure, that is, downward pressure on the mother’s abdomen, and doctor-three inserted his hand to accomplish the delivery of the posterior shoulder (left) first, permitting the right shoulder to slip under the public bone.

As a result, the baby sustained a 2mm depressed occipital fracture, injury to the upper and lower brachial plexus, and a fractured clavicle which healed.

Thereafter, a medical malpractice action ensued on the basis of the birth injury or birth injury accident suffered by the infant plaintiff.

The jury awarded to the infant plaintiff the sum of $300,000 for birth related injuries and to the infant’s father the sum of $50,000, reduced on consent to $25,000, for loss of services.

The jury found that several departures were the proximate cause of the injuries.

The Ruling:

The failure to do an x-ray pelvimetry was not a departure from accepted medical practice and did not cause the infant’s injuries. X-ray pelvimetry is a technique used to compare planes of the pelvis with the size of the fetal head. The record reveals that an intertuberous diameter of 8.0 centimeters does not indicate a need for x-ray pelvimetry. Its use would have been futile as the record reveals that for labor to progress there had to be no cephalo-pelvic disproportion. Indeed, the mother had been pregnant twice before and delivered once and had never had pelvimetry performed. Furthermore, shoulder dystocia cannot be forecast by x-ray pelvimetry, or any other diagnostic tests, thus, such procedure would not have avoided the problem. There is no explanation as to why the dystocia occurred.

The court finds that the jury’s decision is against the weight of the credible evidence that there was malpractice in allowing labor rather than performing a Caesarian section.

Where alternative procedures are available to a physician, any one of which is medically acceptable and proper under the circumstances, a physician cannot be held liable for malpractice when he uses one of two acceptable techniques. There is a much higher risk of death to the mother when the delivery is by Caesarian section rather than by vaginal delivery.
Moreover, the court does not find any medical malpractice in the use of the forceps to deliver the child in the face up position. There was no deviation in the type of forceps used or in the actual application of the forceps. Plaintiffs’ expert even admitted that the use of forceps was justified in the presence of fetal distress and that the type of forceps used was proper.
Here, it cannot be said that excessive force was used to deliver the shoulder merely because the child was delivered with palsy, a known complication of dystocia. Presence of an injury does not mean that there was negligence.

Furthermore, the failure to obtain the mother’s consent to have doctor-three deliver her baby under the direct supervision of doctor-two should not have been given to the jury. Doctor-three was a resident and it was the custom at that hospital for all the obstetricians to allow residents in their training, especially in the advanced stages of their training, to do complicated deliveries. The plaintiffs continually tried to make a distinction at the trial as to the standard of care rendered a private patient and a service patient. There is no difference. As far as the consent issue is concerned, the mother, by going to Bronx Lebanon, consented to the customs and practices of that hospital. The real issue concerning doctor-three was whether he caused any of the injuries which would not have occurred had the mother not wanted him there. Doctor-two stated that even if the delivery had been attempted alone he would have needed assistance when the emergency arose.

Also, the argument that a Caesarian section could have begun in five minutes is against the weight of the credible evidence. The attending physicians did not see the need to subject the mother and the baby to the risks of a major surgical procedure. The court finds no support for the jury’s finding that the failure to do x-ray pelvimetry caused the injuries suffered by the infant.

The other findings of malpractice are against the weight of the credible evidence. Thus, the judgment is reversed and a new trial is proper.

The court did not reach and have not considered the claim of excessiveness. The reduction referred related only to the $50,000 awarded for loss of services which has been reduced by the Court, upon plaintiffs’ consent, to $25,000.

In sum, the judgment for plaintiffs against defendants is reversed, on the law and on the facts, as to defendants-appellants East Bronx Medical Group, doctor-two, doctor-one and another doctor, and the matter is severed as to said defendants and remanded for a new trial; the portion of the judgment dismissing the complaint as to the defendants Bronx Lebanon Medical Center and doctor-three is affirmed.

For birth injury related problems, consult with a Kings County Birth Injury Lawyer immediately. Time is of the essence when it comes to claims before courts, otherwise, you risk losing any entitlement. Thus, contact Stephen Bilkis & Associates as soon as practicable and have a consultation with our legal experts. Our Kings County Medical Malpractice Lawyers would be pleased to assist you. Our consultations are free of charge.

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