Kingston, New York Medical Malpractice Lawyer Weighs in on Yesterday’s Decision: DeJesus v. Mishra


Yesterday I brought you the facts and circumstances surrounding DeJesus v. Mishra.  This case was just decided by the Appellate Division, First Department which services the New York City area.  As a refresher, this case dealt with the tragic death of an infant who was in fetal distress and the physician acted as quick as she could by performing a c-section.  However, it was still not enough to save the infant’s life.  The mother argued that the c-section was medically unnecessary because the infant was already dead when the doctor performed the procedure.  The court felt otherwise.

As a plaintiff’s attorney, obviously I can feel for the family who suffered the  c-section for a lost baby.  Just as there would be a bias for a defendant’s attorney, I too have a bias for the plaintiff.  So I just wanted to disclose this bias so it is open and obvious to everyone.  DO NOTE: I did not litigate this case nor do I have any stake, inside information, or anything other than reading the decisions of the case, the facts provided be the court, and my own experiences as a seasoned attorney.

However, I think the decision in this case—based on the facts that we have—was decided properly; at least as to the liability of the doctor.  The doctor was FIRST contacted at 11:04 and immediately responded to evaluate the patient as 11:07.  That is when the doctor immediately ordered the c-section, which was performed twelve minutes after the doctor evaluated the mother. 

That is twelve minutes of having to move the patient into the operating room, getting an anesthesiologist, preparing the operating room, getting a staff ready, and waiting for the anesthesia to work.  That is an incredibly short period of time!!

Moreover, I completely agree with the court’s public policy reason that a doctor should always try to resuscitate.  This prevents the doctor from having their OWN liability if they do NOT try to resuscitate.  Additionally, the mother may have sued that the surgical team did not do everything in their power if they did NOT perform the c-section on her in an attempt to save the baby.

Therefore—as much as this hurts to admit because I am a plaintiff’s attorney—I think the court made the right decision with the facts they have provided of.  However, I am not sure what would have happened if the case was harder pressed on the hospital or nursing staff, or if evidence of pre-natal care would have shown there to be possible complications in the future.  That would be interesting to learn more about, and would probably have been my theory of the case to learn what lead up to the case.  Because medical malpractice does not affect JUST the action that occurred and caused the medical malpractice, but also it is the steps leading up to the action that very well may contribute to the medical malpractice at hand.

But what do you think? I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com .  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.
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