Summary Judgment Granted in Alleged Brain Damage Baby Case

The case involved allegations related to the labor and delivery resulting in an alleged brain damaged baby / Erb's palsy.  We represented a prenatal treator who also served as one of the attendings / on call physician during the delivery as well as another attending physician. Both doctors were in the hospital at the time of the delivery, which was being attended to by a certified nurse midwife.  In addition to the papers, Justice Spodek held extensive oral argument on the record.

Plaintiff argued that the doctor's prior statements to the parents that he would be available during the delivery should any issues arose, coupled with a Pitocin policy indicating that the attending/on call would be co-managing any patients on Pitocin, made the doctor responsible for the delivery of the infant.  Brett Lean of this office argued that our doctor as the on call physician only becomes involved in the delivery if made aware of issues with the delivery, and that the on call suite did not provide him accommodations to review the strips or be made aware of overhead pages related to shoulder dystocia, and therefore he was not given sufficient notice to attend the delivery and assist / co-manage. Brett further argued that because our doctor was not made aware and did not participate in the delivery, he could not be considered a proximate cause of the alleged injuries and that plaintiff’s reliance on hypothetical situations related to what “may have occurred” if he was there should not be considered.

As to the second doctor, Brett argued that she had minimal involvement as she came in as the shoulder dystocia was already being resolved.  Plaintiff did not oppose the motion as to this doctor.

Ultimately, Justice Spodek decided that plaintiff successfully created a question of fact as to whether our doctor was a co-manager of the delivery; however, she granted summary judgment as to the doctor because he could not be considered a proximate cause of any of the injuries as the record showed that he did not examine the patient on the day of delivery, he was not involved in the actual delivery, and that plaintiff’s rebuttal argument was based on conjecture and speculation.

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