Greedy Trial Lawyer
Some Doctors Don't Do Emergencies
Category: Desperate Defendants
"What was I to do? I was suddenly confronted by shoulder dystocia and simply forgot my training and preparation for this delivery complication." Mothers and fathers, if your obstetrician said this to you, would you be sympathetic and forgiving?
An obstetrician is faced with an emergency during delivery. The infant is injured as a result of the obstetrician's actions to avert the emergency, and the parents commence a medical malpractice action. The question is - Is the obstetrician entitled to an "emergency doctrine" charge at trial? The Second Department had to decide this issue June 5th in Amodeo v Cumella, 2007 NY Slip Op 04762.The "emergency doctrine" is a common law concept which recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency. A party is thus entitled to a charge on the emergency doctrine when, viewing the evidence in the light most favorable to that party, there is a reasonable view of the evidence that his or her conduct was the product of a sudden and unforeseeable occurrence not of his or her own making which leaves little or no time for thought, deliberation or consideration (Caristo v Sanzone, 96 NY2d 172).
Although defendant obstetrician testified that he did not anticipate the occurrence of a shoulder dystocia during the course of delivering the infant, he nevertheless prepared for the possibility of a shoulder dystocia in all of his deliveries. In addition, the expert obstetrician testified that the medical training received by obstetricians, with regard to the procedures to be followed when confronted with a shoulder dystocia, is standard and the obstetrician's management of such cases becomes "instinctive."
The Second Department found that since the defendant obstetrician was trained and prepared for the occurrence of a shoulder dystocia, which was not considered an unforeseen occurrence within the field of obstetrics, he was not entitled to the "emergency doctrine" charge.
I was nodding my head in agreement with the appellate decision and the summary of the opinion provided by New York Legal Update. Then, the legal blogger took a hard turn and began a criticism of the decision which is astoundingly naive.
The problem with the Second Department's decision, as I see it, is if a 1% chance of a particular event from happening does not constitute an emergency, what does? Is the Second Department saying essentially that because obstetricians are trained to anticipate and be prepared for all delivery situations the emergency doctrine never applies. If so, I believe the decision is incompatible with the purpose of the emergency doctrine. If there is only a 1% chance of shoulder dystocia occurring during birth, an obstetrician could go an entire career without ever being faced with the situation. Of course it is desirable to have obstetricians to be prepared for any type of emergency during delivery. However, the mere fact that they are so trained does not in any way lessen the fact that during a rare situation the doctor may have a limited amount of time to think and act to prevent injury. It is this fact - that the doctor has a limited amount of time to act - which should be the primary consideration in judging an obstetrician's actions in rare situations. It is precisely because there is limited time, that any sort of preparation or training becomes irrelevant. Training and preparation can easily be forgotten when confronted with a rare situation. That is why the emergency doctrine is recognized. And to say, as I believe the Second Department has now held, that obstetricians are not entitled to the doctrine is unwise.
The primary reason for the attendance of an obstetrician during labor and delivery is to assure a timely and professional response to any of the recognized potential complications which may suddenly occur. If an obstetrician can easily forget his training and preparation in the face of shoulder dystocia he is one incompetent professional who should not be jeopardizing the health of the infants he is hired to deliver.
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Comments
I should add that it is not only a matter of the obstetrician forgetting his training, but there may not be time to apply that training in a given circumstance, and this is what the emergency doctrine recognizes. Ultimately I believe it is for a jury to determine whether a particular set of circumstances constitute an emergency, and whether the doctor's action were within the acceptable standard of care, but if they are not instructed on how to evaluate emergency situations, I believe they cannot reach reasonable conclusions. Given decisions like the one we disagree about, it is no wonder that obstetricians are leaving that field in droves.
Posted by: Thomas Swartz ![[TypeKey Profile Page]](http://www.greedytriallawyer.com/nav-commenters.gif)
at June 12, 2007 04:51 PM
I'm a NICU nurse. Statistically, the incidence of an infant needing resuscitation at delivery is about the same as the incidence of shoulder dystocia.
I attend a lot of deliveries. The incidence of resuscitation is somewhat higher because they only invite us to the high risk ones, nevertheless, if I suggested that I might forget how to resuscitate a baby, I'd be invited to look for a different job.
I don't think there were any NICU nurses on that jury.
Posted by: Judy at June 12, 2007 07:20 PM