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Plaintiff sues mid-wife for medical malpractice regarding serious birth injury – Lacy v. My Midwife, PC, 2008 NY Slip Op 33465(U) (N.Y. Sup. Ct. 12/11/2008)


In a birth injury case, the court examines whether the actions of a volunteer midwife fall under the “Good Samaritan” rule, and as a result, the defendant should be granted summary judgement.

The plaintiff Lacy, who was carrying twins, opted for a home birth instead of giving birth at a hospital. She wanted to be assisted by a midwife and nurses. She hired defendant Delettera, a midwife, to assist with homebirth. Defendant Delettera invited defendant Chachere to assist with the process. On June 24, 2004, plaintiff had a sonogram which indicated a deceleration in the heartbeat of one of the twins. After following up at Stony Brook University Hospital, the hospital determined that the baby’s heartbeat had stabilized. The plaintiff then indicated that she wanted to give birth at Nassau University Medical Center. She requested that defendant Delettera assist, but Delettera did not have birthing credentials there. The plaintiff was told that if she wanted to deliver her baby at Nassau, it would have to be under the care of a doctor. The plaintiff refused and decided to give birth at home. On July 1, 2004, the plaintiff gave birth at home and one of the babies was stillborn. The plaintiff filed a medical malpractice lawsuit against a number of defendants, including Delettera, Delettera’s company, and Chachere.

Chachere filed a motion for summary judgement, arguing that she was merely a lay student observer, and that the claim against her should be dismissed. Chachere claimed that her role was restricted to observing, taking pictures, making chart entries, and injecting Pitocin at the direction of defendant Delettera. Therefore, she argued, there was no connection between her presence and the harm to the plaintiff because she did not assist in the actual birth and had no contact with the mother or the deceased child. In support of her motion for summary judgement, defendant Chachere submitted an affidavit of a board-certified maternal-fetal physician. His opinion was that the baby’s death was due to the failure of the nurse/midwife to document the fetal heart rate during the home birth. He also asserted that because Chachere had no role in the pre-natal or post-natal care of the mother or the twins, the baby’s death cannot be attributed to any of her actions.

On the other hand, the plaintiff stated in her deposition that defendant Chachere actively participated in the home birth. The plaintiff reported that Chachere attempted to resuscitate the baby that died. In addition, the co-owner of the birthing clinic who was also present during the home birth asked Chachere’s opinion as to whether the mother should be transported to the nearest hospital seeing that there were complications with the birth. For these reasons the plaintiff maintains that the Chachere was present at the birth as more than a student, observer or photographer. The plaintiff also provided testimony from Dr. Gubernick who is an expert in obstetrics and gynecology. His testimony was that Chachere, as a registered nurse and expert, should have taken action affirmative steps in ensuring that the plaintiff received the emergency medical treatment that was required. Furthermore, Dr. Gubernick stated that Chachere was an integral part of the birthing team and that defendant Delettera relied on Chachere’s advice.

Given the conflicting testimony, the court had to determine whether the defendant Chachere was entitled to summary judgement. The Court first reiterated the rule that the person who moves for summary judgment has the burden of proving that there are no material issues of fact that need to be tried before a jury. Chachere’s burden was to prove that she did not depart from good and accepted medical practice or that the mother and her child were not injured by any of her acts. Chachere provided testimony as did her expert witness. The burden then shifted to the plaintiff who also provided expert testimony.

The court concluded that the plaintiff presented sufficient allegations supported by competent evidence to establish the elements of the claim of malpractice, and to raise questions about defendant Chachere’s involvement.

Thus, the defendant’s motion for summary judgement was denied.

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