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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.
The female physician met her initial burden of demonstrating that she did not deviate from accepted medical practice in declining to recommend that the woman deliver the child by cesarean section, through her expert’s affidavit, in which the expert opined that, as of the last date of treatment of the woman, the female physician correctly estimated the fetal weight of the child at 3700 grams, which was below the threshold of macrosomia and, thus, given that the woman’s gestational diabetes was under control and her pregnancy otherwise normal, delivery by cesarean section was not indicated. Further, the female physician demonstrated that her alleged medical malpractice was not a proximate cause of the complainants’ injuries, through evidence showing that the woman’s condition had dramatically changed during the several days after her last visit with the female physician. Specifically, during that time period, she gained 4.5 pounds and, by the time of her subsequent visit with the obstetric gynecologist, he decided to deliver the child vaginally despite observing shoulder dystocia in utero during labor.
In opposition to the female physician’s legitimate showing, the woman and her child failed to raise an issue capable of trial of fact. Since the expert affidavits they submitted were conclusive, speculative, and without basis in the record, they were insufficient to defeat summary judgment. The Supreme Court should have granted the female physician’s motion for summary judgment to dismiss the complaint as against her.
In an action to recover damages for the medical malpractice, the female physician appeals from an order of the Supreme Court. The Supreme Court ordered that the appeal from so much of the order as denied the application to direct the woman’s expert witness to submit to a hearing and, is dismissed on the ground that such portion of the order is not appealable as of right. The Supreme Court ordered that the order is reversed insofar as reviewed, on the law, and the motion of the accused Manhattan female physician for summary judgment to dismissing the complaint as asserted against her is granted; and it is further ordered that one bill of costs is awarded to the appellant, payable by the complainants.
Giving life to a child is the greatest miracle. When something goes wrong during birth and it is caused by other people’s negligence, it is the job of the Kings County Birth Injury Lawyers together with the Kings County Medical Malpractice Attorneys to make sure that you win your fight in court. You may also consult with the Kings County Injury Attorneys or Kings County Birth Injury Accident Lawyers from Stephen Bilkis and Associates.