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Plaintiff Brings Action for Medical Malpractice in Erb’s Palsy Case


A woman’s husband worked for a company whose union established a clinic for its members and their dependents. When the woman got pregnant with her first baby, she went to the union’s clinic. The clinic assigned her to an obstetrician who saw her and took care of her during her pregnancy. She gave birth vaginally to a baby boy and her pregnancy and childbirth was uneventful.

A New York Injury Lawyer said for this reason, when she got pregnant with her second baby, she again went to the union’s clinic and was assigned to the same doctor who assisted her first pregnancy. She saw the obstetrician on January 20, 1999 when she was just eight weeks pregnant. The woman was then 35 years old and she did not know that she had high blood pressure. She had six sonograms in total and all were normal.

When the woman was 25 weeks pregnant, the doctor measured the height of the baby and came to the conclusion that the child was too big for its gestational age. A blood test confirmed that the woman had gestational diabetes. Her pregnancy was considered as high rish and she was referred to a specialist who recommended that she be delivered at 39 weeks.

On August 11, 1999, when the woman was just 37 weeks pregnant, she went to see her doctor at the union clinic because fluid was coming out of her vagina. The doctor examined her and found that she was already four centimeters dilated. A Westchester County Personal Injury Lawyer said amniotic fluid was drawn from the woman to determine if her baby’s lungs were mature enough to be delivered. When the tests showed that the baby’s lungs were mature, the woman was admitted to a hospital where the union clinic’s doctor had admitting privileges.

On August 12, 1999, when the woman was already five centimeters dilated, the woman’s bag of waters broke. The doctor saw that although the woman was dilated, her baby had not moved down the vaginal canal. The union clinic doctor injected her with pitocin to assist her labor and to make the baby descend.

Five hours after injecting the pitocin, the woman was moved to the delivery room and started pushing her baby out. The doctor made a cut in her vagina to allow easier passage of the baby’s head. An hour after the woman’s vagina was cut the baby’s head appeared but the baby’s shoulders got stuck.

The doctor did no lengthen the vaginal cut. Instead, they pulled the baby out of the mother. A Suffolk County Personal Injury Lawyer said the baby girl who was nine pounds and two ounces was delivered. Her face was bruised and she had broken ribs. She also suffered from Erb’s palsy.

The woman and her husband sued the union clinic doctor for medical malpractice for he birth injury sustained by the baby. They also sued the union who owned and managed the clinic and the hospital where the woman gave birth.

The union moved for summary judgment asking for the dismissal of the complaint against it stating that the doctor was not an employee of the union but was simply and independent contractor. They also claim that the doctor did not deviate from accepted medical practices when he delivered the baby and that the injury sustained by the baby was the result of the life-saving measures performed by the doctor during the delivery.

The doctor also moved for summary judgment as did the hospital. The hospital claimed that the doctor was not their employee but was an independent private attending physician.

The only question before the court is whether or not the complaint for damages filed by the mother in behalf of her infant daughter should be dismissed.

The Court held that the summary judgment ordered by the trial court and sustained by the County Supreme Court was not proper as there were material issues of fact that had to be tried.

The material questions of fact which have to be tried are: whether the woman’s pelvis was sufficient to deliver a nine-pound baby; whether or not the doctor failed to recognize when the woman was already in active labor; whether or not the doctor failed to diagnose the adequacy of the woman’s pelvis; whether or not the doctor failed to recognize that the baby had stopped descending; whether or not the doctor failed to deliver the baby by cesarean section.

The Court found that the trial court correctly granted the summary judgment in favor of the hospital but that it erred in granting the summary judgment in favor of the union clinic. The Court ruled that it was premature. The union clinic may yet be found to be liable depending upon the evidence on the material fact. The basis of the union clinic’s liability is its relationship with the doctor: the doctor is considered an agent of the union clinic.

Are you like the woman here whose baby sustained a birth injury due to the malpractice of your obstetrician? Are you thinking of filing a medical malpractice suit? Call the New York Birth Injury Lawyers of Stephen Bilkis and Associates. They can listen to the facts of your case and assess if a medical malpractice suit is viable. The New York City Birth Injury Lawyers can help you gather evidence and present them in court. The NYC Birth Injury attorneys represent you not only to argue in court but also to negotiate any settlement. Call Stephen Bilkis and Associates today and speak to their NY Birth injury attorneys.

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