Evidence of Injury Alone Is Insufficient To Establish A Departure From Good And Accepted Medical Practice
July, 2008
In Johnson v. St. Barnabas Hospital, 2008 WL 2344701 (1st Dep’t 2008), Plaintiffs brought an action sounding in medical malpractice against St. Barnabas Hospital and other medical professionals, after the infant plaintiff suffered an injury during delivery. The Supreme Court, Bronx County entered judgment on or about March 12, 2007, dismissing the Complaint as against Defendants in the midst of a jury trial. Plaintiffs appealed. On June 10, 2008, the Supreme Court, Appellate Division, First Department unanimously affirmed, without costs.
During the delivery of the infant child, at which Defendant obstetrician Dr. Milanes-Roberts was not present, Defendant DeMaggio, a midwife, encountered a shoulder dystocia. With assistance, Defendant DeMaggio completed a series of obstetrical maneuvers on Plaintiff mother in order to dislodge the infant’s shoulder, resulting in delivery of the infant. Although Defendant DeMaggio was able to deliver the infant Plaintiff, the infant suffered an injury to his brachial plexus, which resulted in Erb’s
palsy, a syndrome that causes the affected arm to lose motor function. Id.
During the trial, Plaintiffs’ exert, Dr. Stuart Edelberg, testified that there are four recognized maneuvers to relieve a shoulder dystocia. Id. According to Dr. Edelberg, Defendant DeMaggio appropriately used two of those maneuvers to deliver the infant. Dr. Edelberg found that the Apgar scores were within normal ranges; however, he opined that Defendant DeMaggio used “excessive downward lateral [traction] to the baby’s spine…, and directly caused the brachial plexus injury.” He further opined that “since this baby does have an injury, I know that excessive traction was used.” Id.
On cross-examination, Dr. Edelberg stated that Defendant DeMaggio recognized the condition of shoulder dystocia promptly, she responded appropriately and that she delivered the baby immediately after her response with no difficulty. Id. Dr. Edelberg reiterated that he based his opinion that excessive traction was used on the fact that the infant had a brachial injury following delivery as well as “what’s stated in our literature. What we presented to in some of our letters to the editor” as well as “what the standard textbooks in our field say.” Id. Neither the texts nor letters were offered into evidence. Dr. Edelberg stated that he was not present during delivery and did not remember the medical records he reviewed disclosing any other bruises on the infant. Id. Moreover, Dr. Edelberg admitted it was very well known that brachial plexus injury could occur even when the appropriate maneuvers are correctly used to resolve shoulder dystocia, and that the occurrence of a brachial plexus injury does not mean incorrect procedures or techniques were used. Id.
The Appellate Court found that the record did not establish a departure from good and accepted medical practice. Id. The opinion of Plaintiffs’ expert that a departure existed because there was an injury was insufficient. The Court held that evidence of injury alone does not mean that there was negligence on the part of the defendants. See Landau v. Rappaport, 306 A.D.2d 446, 447 (2003); compare Sutherland v. County of Nassau, 151 A.D.2d 468, 469 (1989), lv dismissed 76 N.Y.2d 1017 (1990). The Court also found that the trial court did not err in refusing to submit the case to the jury on the theory of res ipsa loquitur, where plaintiffs failed to establish that the injuries at issue would not occur in the absence of negligence. See Abbott v. New Rochelle Hosp. Med. Ctr., 141 A.D.2d 589, 590-591 (1988), lv denied 72 N.Y.2d 808 (1988). Dr. Edelberg testified on cross-examination that there are causes for a brachial plexus injury other than excessive traction. The first element of res ipsa loquitur, i.e., that negligence may be inferred from the mere happening of the event, was not established. The testimony of Plaintiffs’ expert only provided possible explanations for the injury sustained by the infant Plaintiff.
Learning Point
Evidence of an injury alone is insufficient to establish that a medical professional departed from good and accepted medical practice. In the absence of additional evidence tending to prove that a departure occurred, the court may dismiss an action.
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