New York Law Journal quotes John Fisher in a landmark case for patient rights
Here's the scoop on this huge case for injury victims. In Muhammed, a baby sustained a severe injury to the nerves in his neck during a vaginal delivery. The affected nerves are called the brachial plexus and they are located at cervical spine C5 through C7 (the bottom of the neck). The plaintiff in Muhammed argued that the severe nerve injury was caused by excessive lateral traction used by the obstetrician during the delivery; lateral traction refers to pulling laterally on the baby's head during the vaginal delivery. In basic terms, the obstetrician was pulling on the baby's head with such force that the nerves in the baby's neck were torn and permanently injured.
As usual for an Erb's Palsy case, the defendant obstetrician claimed that the natural forces of labor caused the baby's severe nerve injury, i.e., the pressure on the baby's neck as it passed through the birth canal caused the injury. As long as Erb's Palsy cases have been tried in courtrooms across the United States, the "forces of labor" defense has been the primary, if not the only, argument made by obstetricians and defense lawyers in cases involving injuries to the brachial plexus during childbirth. This defense argument has been very successful in defending Erb's Palsy cases...until now.
For the first time in any state, New York's Appellate Division, Fourth Department held, in essence, that the defense argument about the "forces of labor" was not generally accepted in the scientific and medical community. In other words, the defense theory about the cause of the baby's injury is "junk science" and the defendant and his experts should not be allowed to introduce such evidence. WOW! What a great day for injury victims.
In one foul swoop, New York's Appellate Division knocked out a bogus defense theory that has been used to deny the claims of severely injured babies. Now, defense lawyers and obstetricians will have to dream up some new theory to explain the infant's severe nerve injury. For now, we'll savor a great moment and applaud New York's Appellate Division for taking a strong stand against junk science.
If you have questions or want more information about Erb's Palsy, I welcome your phone call on my toll-free cell at 1-866-889-6882. You are always welcome to request a FREE copy of my book, The Seven Deadly Mistakes of Malpractice Victims, by sending me an e-mail at [email protected] .