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Mother appeals medical malpractice action for birth injury – Bustos v. Lenox Hill Hosp., 2009 NY Slip Op 32464(U) (N.Y. Sup. Ct. 10/19/2009)


This medical malpractice action arises out of the labor and delivery of plaintiff Bustos’ son. Due to the large size of her baby, Bustos suffered a fractured pelvis bone during the vaginal delivery. Bustos filed a medical malpractice claim against her doctor, asserting that he departed from good and accepted standards of medical practice by failing to properly evaluate the size of the fetus and failing to recommend a cesarean section. As a result, Bustos sustained symphysis pubis diastasis—a separation and/or fracture of the lower pelvic bone—following the vaginal delivery of her son, requiring surgical intervention and pinning.

The standard for whether a doctor committed medical malpractice is whether the doctor’s care and treatment of the patient deviated from accepted community standards of medical practice, and as a result, the patient was injured.

Defendant Segarra cared for Bustos during her pregnancy. She had regular appointments with him throughout her pregnancy. On the morning of April 1, 2003, Bustos was admitted to Lenox Hill where she delivered a healthy 10-pound baby boy via vaginal delivery. During delivery Bustos was positioned flat on her back on the delivery table and her legs were spread apart with her heels hitched onto the stirrups. 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. Following the delivery, Bustos complained of bilateral back and leg pain. She then had surgery to repair her fractured pelvis. Bustos maintains that her pelvis would not have fractured if the doctor had properly determined the baby’s delivery weight and delivered her baby via cesarean section. The baby was large, as is common when the mother suffers from gestational diabetes—as did Bustos. The pelvic fracture could have been avoided if the baby was delivered via a cesarean section.

The defendants moved for a summary judgment alleging that the break in plaintiff’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, and not because they misjudged the size of the baby. The defendants reject plaintiff assertion that they were negligent and departed from commonly accepted medical practice. The defendants also point out that the timely surgical intervention to repair the plaintiff’s broken pelvis.

The court granted the summary judgment in favor of the defendants, ruling that the plaintiff failed to submit her opposition to the motion for summary judgment. The plaintiff lost on appeal. She then asked the court to allow her to re-litigate the motion, explaining that she ended up firing her attorney because the attorney did not get along with her expert witness. As a result, she was not able to present the expert’s affidavit and deposition testimony. The court granted her request.

The plaintiff’s expert testified that the defendants did indeed depart from commonly accepted medical practices multiple times. For example, the expert testified that the epidural given to the plaintiff was unusually dense. It should have only blocked the sensation of pain and not render her numb or insensitive to any other sensation. The expert also asserted that force was used on the plaintiff’s legs to allow her hips and pelvis to spread more so that the big fetus could be delivered. The expert noted that the plaintiff was not given an episiotomy. In addition, the expert testified that the obstetrician left the plaintiff in the care of a resident. There were all departures from accepted medical practices.

Based on the evidence presented, including the testimony of the plaintiff’s expert, the court decided to reinstate the complaint for medical malpractice. The defendants appealed the reinstatement, but the reinstatement was upheld.

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