The complainant woman gave birth to her childat the accused hospital. The hospital’s obstetric gynecologist delivered the child vaginally. The child, who had high birth weight at the time of birth, suffered birth injuries which include Erb’s palsy/brachial plexus injury during delivery. The accused female physician who is an employee of the hospital’s medical practitioner had provided most of the woman’s prenatal treatment up to her last visit. The medical practitioner was the last physician to treat the woman prenatally when he treated her prior to delivering the child the next day.
The Long Island woman and her child commenced the action alleging that the female physician deviated from accepted medical practice when, after estimating the child’s fetal weight on to be 3700 grams, she failed to recommend delivering the child by cesarean section rather than vaginally. The female physician alleged that the woman’s gestational diabetes increased the likelihood that, at birth, the child would be of a large size, thus warranting a cesarean section, and that the injuries suffered by the child could have been prevented had she been delivered by cesarean section. The female physician moved for summary judgment to dismiss the complaint as asserted against her. In an order, the Supreme Court denied the motion, concluding that the triable issues of fact existed however, the female physician appeals.
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage. An accused physician moving for summary judgment in a medical malpractice action has the initial burden of establishing legitimate complaint, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries.