Published on:

Mother Appeals Medical Malpractice Action for Birth Injury


A woman was pregnant with her second baby in 2003. She gave birth to her first baby in 1997 and all went well. She saw the same obstetrician regularly for her pre-natal check-ups. He found that she was suffering from gestational diabetes during her second pregnancy. He notified her that her baby may be bigger than her first baby.

A New York Injury Lawyer said this was the second pregnancy, the doctor had already established that the woman’s pelvis was sufficient and adequate to allow her to give birth normally. As the woman was delivering her second baby, she was lying flat on the delivery table and her legs were spread apart with her heels hitched onto the stirrups, the woman’s pelvis broke. The bones where the two halves of her pelvis met were relaxed by the hormones of childbirth but the doctor performed a hyper flexion-abduction maneuver after she was given an epidural. She delivered her baby vaginally but after the child’s birth, the mother was rushed for surgery in the same hospital to repair her fractured pelvis with plates and screws. The mother sued the hospital and her obstetrician for medical malpractice for the injury she herself sustained in the course of her delivery and childbirth.

She maintains that her pelvis would not have fractured if the doctor had done his job (medical malpractice) and determined the baby’s delivery weight. The baby was huge because of her gestational diabetes and the mother’s pelvis would not have fractured if the baby were delivered via a cesarean section.

The defendant obstetrician and hospital moved for a summary judgment alleging that the break in the woman’s pelvis was due to the softening of the bones when the hormones of pregnancy work to loosen the joints to allow the pelvis to spread and allow the fetus to pass through the birth canal. They disclaim any departure from commonly accepted medical practice. They also cite the timely surgical intervention to repair the woman’s broken pelvis.

A Westchester County Personal Injury Lawyer said the trial court granted the summary judgment in favor of the defendant hospital and obstetrician. This is because the woman failed to submit her opposition to the motion for summary judgment. The woman appealed the dismissal of her cause of action but the Court of Appeals upheld the granting of the motion for summary judgment and the dismissal of the medical malpractice cause of action she had filed.

The woman then asked that she be allowed to re-litigate the motion. She cites that she had fired her lawyer who did not get along with the expert and this was the reason why she was unable to present the expert’s affidavit and deposition testimony. The trial court allowed the woman to re-open the issue of the motion for summary judgment.

The expert provided by the woman opined that the epidural given to the woman was unusually dense: the epidural should only block the sensation of pain but would not render her numb or insensitive to any other sensation. The expert asserts that force was used on the woman’s legs to allow her hips and pelvis to spread more so that the big fetus could be delivered. The expert also noted that the woman was not given an episiotomy ( a cut that would enable the head of the fetus to slip through the vaginal canal more easily). The expert also noted that the obstetrician left his patient to the care of a resident and that these were departures from commonly accepted medical practices.

After having heard all the deposition testimonies and all the opinions of the experts from both sides, the court decided to reinstate the complaint for medical malpractice. The hospital and the obstetrician appealed the reinstatement of the medical malpractice complaint.

The only issues before the court are: whether or not the trial court properly reinstated the complaint for medical malpractice; and whether or not there are still material issues of fact that need to be tried before a jury.

The Court upheld the trial court’s reinstatement of the complaint for medical malpractice. The Court also found that there are issues of fact that need to be tried. The case is set down for pretrial conference.

Did you suffer bodily injury as childbirth or delivery like this woman? Are you wondering if you have sustained a legal injury that can be subject of a case for damages? Call Stephen Bikis and Associates and ask to speak to any of their New York City Birth Injury Lawyers. Their New York Birth Injury attorneys are ready to listen to your story and render an opinion as to the viability of filing a medical malpractice suit. Their NYC Birth Injury attorneys can advice you as to your legal options. Their NY Birth injury lawyers can also represent you in settlement proceedings as well as in trial. Call Stephen Bilkis and Associates today.

Contact Information