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The complainants seek damages for the infant’s right arm paralysis injury


The complainants seek damages for the infant’s right arm paralysis injury (Erbs palsy brachial plexus). The accused parties are the hospital, the obstetrical resident who delivered the infant and the attending physician who was present at the delivery.

The complainants allege that the doctors failed to properly manage and perform the delivery of the infant, failed to properly detect and manage shoulder dystocia, failed to perform rotational maneuvers to deliver the infant, failed to properly position the mother for delivery, improperly performed delivery by applying excessive traction to the infant’s head, failed to perform an episiotomy in the presence of a shoulder dystocia, failed to place the mother in the necessary birth position and failed to perform the necessary birth maneuver, and improperly performed maneuvers at delivery which resulted in injury to the brachial plexus nerve. The doctors on the other hand, claim that the birth injury sustained by the infant is inconsistent with the records of the labor and delivery. It was not caused by a medical malpractice and instead, was the result of maternal fetal forces.

In support of their motion for summary judgment, the doctors submit the affirmation of obstetrics and gynecology physician board certified who reviewed the pertinent medical records, pleadings and deposition transcripts. The board certified physician observes that the mother’s pre-natal history was benign and she had no maternal risk factors for shoulder dystocia. She also observes that the mother did not have an abnormal pelvic anatomy, gestational diabetes, was not post-date. The records revealed that the mother had no previous shoulder dystocia delivery and was not extremely short of stature. The board certified physician also pronounces that there was no assisted vaginal delivery or protracted active phase of first stage labor or second stage labor. The delivery note also indicated that the child was delivered with a non-reducible nuchal cord wrapped once around the neck and was clamped and cut upon the head’s delivery. The nuchal cord is significant because in its presence, the mother was directed to stop pushing after delivery of the head in order to have the cord cut prior to the delivery of the child’s body. Based upon the charting, a shoulder dystocia was not encountered. Had there been any complications or the need for maneuvers to be undertaken because shoulder dystocia was encountered, or for any other reason, it would have been documented in the physician’s notes, nursing notes, or pediatric notes. The board certified physician strongly claims that absence of any of such documentation is clear and convincing evidence that maneuvers and/or excessive traction were not used and shoulder dystocia not encountered. The work-up from admission to delivery was well within the standards of care, and there were no departures from the standard of care from the time of delivery through the delivery itself, based upon the records. Following the delivery, the mother had a first-degree vaginal laceration and was repaired with 3.0 chromic sutures, which indicates that it was a superficial laceration without muscle involvement and it was not, as indicated in the complaint that a trapped shoulder had to be delivered.

The board certified physician cites medical literature that makes it quite clear that there can be an intrauterine origin of obstetrical brachial plexus, unrelated to lateral traction during delivery. The literature states that the right arm paralysis injury can occur without associated shoulder dystocia and maternal forces are the most likely cause of both situations with and without dystocia. Some articles indicate that shoulder dystocia can occur from driving force rather than traction forces. Other studies conclude that intrauterine maladaptation may play a role in brachial plexus impairment and brachial plexus impairment should not be taken as legitimate evidence of birth injury.

The board certified physician in Manhattan and Long Island concludes that whatever injuries allegedly occurred in the complaint have occurred in the absence of any deviation or departure from the standard of medical care and in the absence of shoulder dystocia. The only explanation that could support the alleged Erb’s palsy, as the literature indicates are maternal fetal forces and not shoulder dystocia and/or the intervention by any physicians.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of injury or damage. Accordingly, the accused parties in a medical malpractice action are able to fulfill their legitimate burden of establishing their entitlement to judgment without trial by bringing forward expert opinion evidence that they did not deviate from good and accepted medical practice in their treatment of the complainant. In opposition, the complainant must submit a physician’s affidavit attesting of the doctor’s departure from accepted practice, which departure was a competent producing cause of the injury in order to defeat the doctors’ motion.

It is well settled that judgment without trial is not appropriate in a medical malpractice action when the parties bring forward conflicting medical expert opinions as such credibility issues can only be resolved by a jury.

The conflicting medical expert opinions submitted by the parties preclude the grant of summary judgment to the doctors. The doctors rely primarily upon the expert affirmation of the board certified physician to establish legitimate proof that they did not deviate from good an accepted medical practice in their care and treatment of the complainant during labor and delivery. The board certified physician’s affirmation focuses on the lack of evidence that a shoulder dystocia occurred in the labor and delivery, and on medical literature which supports the proposition that the Erb’s palsy that allegedly occurred was the result of maternal fetal forces rather than improper excessive traction on the infant. Although the court finds that such affirmation is sufficient to establish the doctors’ legitimate proof case, it also determines that the expert affirmation proffered by the complainant raise issues of fact sufficient to support denial of the instant motion for summary judgment.

The complainant’s expert pronounces in his affirmation that Erb’s palsy in the absence of shoulder dystocia is an extremely rare event, and that the medical literature which he has reviewed indicate that the chances that an Erb’s palsy was caused by intrauterine events approaches zero. He opines that when such rarest of events is documented, there is the presence of macrosomia and a prolonged second stage of labor, neither of which was present in the case. He also opines that he has a doubt as to the validity of the charting, pointing to the discrepancy as to whether the vaginal laceration was first or second degree, and that he believes that the charting does not equate with the condition of the baby at birth. Contrary to the assertion of the doctors’ counsel, it is not a speculative opinion, since the complainant’s expert opines that the obstetrical resident failed to recognize that the shoulder became impacted and applied excessive traction. Further, the complainant’s expert offers a cogent opinion why the Erb’s palsy manifested on the right shoulder, rather than the left.

Such conflicting expert affirmations necessitate resolution by the finder of fact. Accordingly, the motion for summary judgment by the obstetrical resident, the attending physician and the hospital is denied. The foregoing constitutes the decision and order of the court.

Child birth is one of the most awaited events in every couple’s life. When problems arise during this momentous moment, a NY Birth Injury Lawyer hand-in-hand with a NYC Medical Malpractice Attorney of Stephen Bilkis and Associates will see to it that those at fault will be greatly apprehended by the law. You may also need the legal assistance of a New York Injury Attorney during the course of your lawsuit so feel free to call any member of the team.

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