A woman engaged the professional services of an obstetrician to give her prenatal care and to deliver her baby. On October 24, 2002, the woman was admitted to the emergency room because she was already in labor. The labor proceeded normally until the second stage of labor when the woman was instructed by her doctor to push the baby out and the mother had difficulty bearing down. The mother was not pushing hard enough so the doctor tried to suction the baby out. When this also failed, the doctor told the woman that her baby will have to be delivered via cesarean section but the woman refused.
The doctor then obtained the woman’s consent to deliver her baby using forceps. But before the forceps could be locked, the baby popped out. It had a faint heartbeat but it was eventually declared dead after 45 minutes of trying to revive the baby.
The woman then sued the obstetrician and the hospital in behalf of her infant. She filed a suit in damages for medical malpracticefor the personal injury sustained by her infant that died as a result of the negligence and fault of the obstetrician. She also sued for the wrongful death of the child. She also sued for her own personal injury and she sued for her own emotional distress.
The obstetrician and the hospital both filed motions for summary judgment asking for the dismissal of the case. Even before any ruling can be made on this motion for summary judgment, the woman withdrew the complaint she filed in behalf of her child for wrongful death and also for her personal injury. The only remaining causes of action in her complaint are the personal injury sustained by the mother and the emotional distress to her.
The only issue in this case is whether or not the remaining causes of action must also be dismissed.
First, the Court resolved to grant the motion for summary judgment filed by hospital since it appears from the preliminary proof presented by both the mother and the obstetrician that the hospital employees were only following the orders of the obstetrician who was not an employee of the hospital but was an independent contractor,
Second, the Court held that the issue of the existence of medical malpractice by the obstetrician was met by the doctor when he submitted his own affidavit attesting to the fact that the child’s death was due to the mother’s refusal to deliver her baby by cesarean section. The Court then held that this proof presented by the obstetrician served to shift the burden to the mother to show that material issues of fact remain that have to be resolved by trial.
Third, the woman adduced expert testimony and testimony from a fellow doctor from the hospital who was working in the emergency room when the mother was admitted stating that as early as two hours before the child was finally delivered, the child had show signs of fetal distress. The readings on the baby monitor show that the baby’s heartbeat was slowing down and the doctor should have seen those printouts and should have performed the cesarean section two hours before he asked for the mother’s consent to have the cesarean section. Also the woman denied that the obstetrician ever asked her to have the baby delivered via cesarean section. The mother also adduced testimony from the nurses on duty with the obstetrician at the time of the delivery that the doctor put the forceps on the front and back of the baby’s head instead of on the sides which may have caused a fatal skull fracture.
Fourth, the Courts in Manhattan and Staten Island then held that the mother has successfully raised material issues of fact that have to be resolved in a trial. The issue of whether or not the doctor informed the woman of the necessity of delivering by cesarean section is a material issue of fact. Also, the issue of whether or not the doctor timely informed the mother of the necessity of a cesarean section is a material issue of fact. Lastly, the issue of whether or not the doctor misused the forceps in delivering the baby is also an issue of fact.
These material issues of fact have to be determined during a trial and so the obstetrician’s motion for summary judgment is denied.
A case for medical malpractice resulting in birth injury can be sustained provided that a New York City Birth Injury Lawyer can prove that the doctor deviated from accepted medical procedure in his delivery of an infant. A New York Birth Injury Attorney must also present proof that the doctor’s deviation from accepted medical standard is the proximate cause of the birth injury sustained by the infant. Confer with any of the NYC Birth Injury Attorneys at Stephen Bilkis and Associates today to safeguard your right to be compensated for the birth injury your infant sustained. The NY Birth Injury Lawyers at Stephen Bilkis and Associates are willing to assist you in presenting evidence and even in negotiating a fair settlement. Call Stephen Bilkis and Associates today.