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Plaintiff Brings Action for Birth Injury, Doctor’s Motion for Summary Judgement Denied


A mother and her child filed a medical malpracticelegal action against a hospital and three doctors. The mother allege that the hospital and the doctors basically failed to timely schedule a cesarean section as well as her delivery to her infant which was in double footling breech presentation.

A double footling presentation is a condition whereby the fetus’ both feet are the presenting part. As a result, it caused the infant to suffer a spinal injury during delivery, produce bleeding and swelling, and ultimately segmental spinal cord atrophy resulting paralysis and severe low muscle tone to the lower extremities, hydronephrosis, neurogenic bladder transverse myelopathy, and a marked spinal kyphosis. A neurogenic bladder transverse myelopathy is a condition indicating that there is something wrong with the spine. A New York Injury Lawyer said the mother claims that her infant, now four years old, was unable to walk, suffers from frequent urinary tract infections, requires continuous antibiotic therapy and urinary catherization. The mother further states that all of her infant’s injuries are permanent.

The mother alleges that the hospital and the three doctors failed to perform a cesarean section when an external version was unsuccessful. Bases on records, an external version is known as a procedure used to manually turn a fetus from a breech position into a vertex position which is a normal presentation wherein the fetal head is the presenting part before labor begins. It is usually done to make vaginal delivery possible. The mother claims that the hospital and the doctors were negligent in performing the external version. She further claims that they failed to perform pelvimetry studies. A pelvimetry refers to the measurement of the diameters of the pelvis and it also recognizes a footling breech caused by a frank breech to become a footling breech. A Nassau County Personal Injury Lawyer said a frank breech has been described as the position of the fetus whereby the fetus’ buttocks are present at the maternal pelvic inlet, legs are straight up in front of the body, and feet are at the shoulders. Additional, she claims that they failed to perform vaginal exams at 36 weeks.

During the mother’s pregnancy, she went to the said hospital for a prenatal visit. Thereafter, an ultrasound revealed a pregnancy and the estimated due date was calculated. The mother appeared for her scheduled prenatal visits until the time of birth. The mother then visited the hospital for a prenatal check-up at 37 weeks gestation wherein she was checked by a doctor. At that time it was noted that the baby was in breech presentation. The doctor advised the mother about her options of external version, a cesarean section, or vaginal delivery. The mother opts to attempt an external version.

Consequently, the mother was presented to the hospital for the attempted external version. The doctor who checked her performed the external version under ultrasound guidance. The external version was not successful and the mother was scheduled for a cesarean section after 9 days at which that time the pregnancy would be at 39 weeks gestation.

After 6 days, the mother was presented to the hospital with a reported spontaneous rupture of membranes. The mother testified that she spoke with another doctor on the phone when her water broke and he directed her to go to the hospital. A Suffolk County Personal Injury Lawyer said the triage record indicates that the doctor was notified and the patient was being scheduled for a cesarean section. The hospital provide that the Admitting Note documented that the mother was admitted at 38 4/7 weeks gestation due to spontaneous rupture of membranes with particulate meconium and footling breech presentation, and noted that a doctor was in route to the hospitals. A fetal heart monitor was applied, the mother was brought up to the delivery room and anesthesia was started. The surgery commenced and the infant was delivered.

After the mother filed the complaint, the hospital and the three doctor’s move for an order to grant a decision without trial and ask to dismiss the complaint. The hospital also submits a memorandum of law in support of their motion.

In the expert’s opinion presentation, an obstetrical physician opines that at all relevant time, the doctor’s care and treatment of the mother and the infant was within good and acceptable standards of medical practice. The doctor’s care of the mother and the infant did not proximately cause the infant’s claimed injuries. The obstetrical physician also provides that pelvimetry is not presently routinely used and is not a useful diagnostic tool for cephalopelvic disproportion, a condition when the pelvis is inadequate to allow the fetus to negotiate the birth canal. The obstetrician states that the mother’s pelvis was assessed and her pelvic measurements were adequate and any claimed failure to perform pelvimetry studies is irrelevant.

The obstetrician further state that the hospital and doctors timely appreciated a footling breech and appropriately offered the mother about the option of performing an external version after 35 weeks gestation. The obstetrician also states that the attending doctor of the mother conformed to good and accepted standards during the external version and didn’t cause the claimed injuries during the procedure. The attending doctor of the mother performed a sonogram prior to the external version to confirm the position of the fetus and to ensure that the version was not contraindicated. The hospital set forth that the doctor explained to the mother that he was not optimistic that the version would be successful due to both the size of the baby and the size of the mother. As per the obstetrician’s review of the records, the mother was given the appropriate information to allow her to make an informed decision as to whether to proceed with the external version.

The obstetrician submits that although the mother allege that the doctor should have immediately proceeded to a cesarean section delivery when the external version failed , the hospital’s protocols do not permit elective cesarean section prior to 39 weeks gestation for breech presentation unless the mother has a rupture of membranes.

The obstetrician also opines that it is within a reasonable degree of medical certainty, that the attending doctor conformed to good and accepted standards during the cesarean delivery of the infant and while performing the low transverse incision. While the mother’s allege that a classical incision should have been made, the obstetrician maintains that a classical incision would have created more potential complications and during future pregnancies.

The mother however submits contrary to the opponents’ submissions. The mother’s pediatric neurologist explained that the infant suffered a traumatic spinal cord insult as a result of the delivery process involving excessive traction, hypertension of the cervical spine, and distraction of the spine, producing bleeding and swelling and ultimately resulting in transverse myelopathy and spinal cord atrophy with resulting paralysis and/or severe hypotonia in the lower extremities, bilateral hydronephrosis and a neurogenic bladder. The mother’s pediatric neurologist states that the injury suffered by the infant is a known complication of the use of undue traction during a breech delivery, whether performed vaginally or through an insufficient uterine opening, and that the facts are most consistent.

Consequently, the court found that the hospital and the three doctors’ motion for decision without trial are denied. As the mother has discontinued the instant action against one of the doctor and it was revised.

It is very hard for any medical practitioner to handle a life threatening condition and they can never assure anyone what will happen after a medical procedure. If you are a medical practitioner who faces a client’s complaint, you can ask help from a NY Medical Malpractice Lawyer. Contact Stephen Bilkis and Associates for sound legal guidance and a free consultation.

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