Legal Update: Medical Malpractice Lawsuit Regarding Stillborn for Emergency Caesarian Was Tossed by Appellate Division

John Fisher
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Here is another major case involving medical malpractice, childbirth, and emergency procedures.  There is an endless library of cases regarding just these issues individually—now there is an absolute culmination of all these issues in a truly important decision.  The appellate division just ruled on this case. Tune in tomorrow on my opinion of this case!

            The case is DeJesus v. Mishra (25804/04) and “concerns the tragic still birth of an infant at the Bronx-Lebanon Hospital Center on October 12, 2003, in particular, the parents’ malpractice claim against Dr. Aruna Mishra, the attending physician who delivered the stillborn infant by emergency c-section.”  What happened here was the mother went to the hospital’s emergency room at 9am then to the labor and delivery facility at 10:30am on the morning in question and the baby was still alive.

            At this point, the parties disagree on the facts and it is unsure when the baby because to have fetal distress.  The court ended up finding that these were not relevant to the issue of Dr. Mishra’s liability, however, because she was not called until 11:04am.  The court recreated a timeline of events which found:

-          At 10:42am, a fetal heart monitor was attached and found a normal bet per minute (bpm).

-          At 10:47am, the bpm dropped significantly before rebounding.

-          Between 10:52am and 11:04am, the monitor shows bradycardic episodes (meaning the heart rate is too slow).

-          At 11:04am, a nurse was having difficulty locating the fetal heart rate and contacted a resident who found a very low heart rate and, in turn, contacted Dr. Mishra.

-          Dr. Mishra arrived three minutes later and examined the mother, diagnoses fetal distress, and called for an immediate, emergency c-section.

-          At 11:11am a sonogram is performed and no fetal heart rate is found.

-          Now, at 11:19am and after only fifteen minutes of being contacted, prepping for surgery, getting an anesthesiologist, administering the anesthesia, and it taking effect on the patient, Dr. Mishra begins the c-section.

The c-section yielded a stillborn.

Plaintiffs initially argued that plaintiff failed to show that Dr. Mishra acted improperly in her diagnosis of fetal distress in the first place.  The appeals court affirmed that she was NOT negligent in any way and that there was NOT an excessive period of lapsed time after becoming contacted.

Plaintiffs then argued that Dr. Mishra should not have proceeded with the c-section between the sonogram confirmed there was no fetal heart beat.  They argued that the risks of complications such as infection, death, and scarring were too high for the doctor to do on a whim.  The court also disagreed, particularly because the patient did not die or suffer an infection.

As for the scarring claim, the court found that Dr. Mishra did not depart from the good and accepted medical practice in her treatment of the mother.  That Dr. Mishra, “within a reasonable degree of medical certainty, that the appropriate procedure for the plaintiff, who presented with a fetus in distress, was the performance of an emergency cesarean section.”

The court justified this because doctors are expected and even required to attempt to resuscitate individuals who stop breathing or whose heart stops beating, as it did here.  Therefore, the court reversed the lower court’s decision to overrule the doctor’s motion to dismiss, and granted the motion to dismiss the claim.

But what do you think? I'd love to hear from you FIRST.  As TOMORROW I will give my opinion on this case!

I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  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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