Standard Defense in Obstetrical Malpractice Cases Invalid

In what may be a national first, an appellate panel in Rochester, NY, has rejected as scientifically invalid a standard defense in obstetrical medical malpractice cases. The Appellate Division, Fourth Department, in Muhammad v. Fitzpatrick, 11-01764, upheld Erie County Acting Supreme Court Justice Timothy J. Walker”s preclusion of evidence that a newborn”s injuries were caused in the birthing process and not by the actions of the doctor or hospital.

Justice Walker held that the “maternal forces of labor” theory advanced by the defense was based on a “small number of articles written by a few authors, each of whom based their conclusions in part on the writings of other members of that small group.” He said the theory did not satisfy the New York-adopted federal standard for admissibility ” Frye v. United States, 293 F. 1013 (DC 1923) ” or the foundation rule set by the state Court of Appeals in Parker v. Mobile Oil Corp., 7 NY3d 434 (2006). The Fourth Department unanimously affirmed.

A Remarkable Ruling

Plaintiffs” attorneys were unable to identify any similar appellate ruling in the nation.

“What we consider junk science has been used all over the state and country to deprive plaintiffs of recovery they are entitled to,” said Joseph M. Lichtenstein of Mineola, NY, who represented the plaintiff.

John H. Fisher, a medical malpractice plaintiff”s counsel with Mainetti, Mainetti & O”Connor in Kingston, NY, who is not involved in the matter, said the ruling has enormous implications in cases involving a brachial plexus injury. Fisher said that in brachial plexus cases, the plaintiff”s theory is typically that the injury was caused by excessive force used by a physician during delivery, and the defense is usually that the damage was not caused by the doctor but by the natural forces of labor, such as uterine contractions. He said the Fourth Department”s holding is “phenomenal from a plaintiff”s point of view.”

“This could set a precedent in an appellate level court,” Fisher said. “This is huge. With this, the defense will be scrambling to say something other than the forces of labor caused the brachial plexus injury.”

Fisher said there are only two explanations for a brachial plexus injury sustained during birth ” excessive lateral traction by the obstetrician, or the forces of nature ” and the Fourth Department”s holding seemingly precludes anything other than physician negligence. “This knocks out a huge defense argument and is a big win for the plaintiff,” Mr. Fisher said.

Lichstenstein said appellate courts in Texas, Ohio and Colorado have all held that the force of labor theory is admissible.

The Case

In the New York Appellate Department case, Belinda Muhammed sued Sisters of Charity Hospital in Buffalo and Dr. John K. Fitzpatrick for malpractice after her daughter Asalah Abdul-Maalix sustained a brachial plexus injury, resulting in Erb”s Palsy and a partially paralyzed arm. The brachial plexus is a network of nerves that controls muscle movements in the shoulder, arm and hand. According to court records, three nerve roots in the baby”s brachial plexus were torn from her spine.

At trial, the defense claimed that the Erb”s Palsy was unrelated to the delivery and resulted from the “maternal forces of labor.” Specifically, the defendants argued that after the baby”s head was delivered, her shoulder became lodged in the pubic symphysis, a cartilaginous joint in her mother”s pelvis, and the damage was caused by the forces of labor.

At trial, Justice Walker allowed the defendants to present the defense, but the proceeding resulted in a hung jury and mistrial.

Plaintiff attorney Lichtenstein then moved to preclude the forces of labor defense from a retrial slated for June, and Justice Walker granted the motion, resulting in the appeal decided Jan. 31 by the Appellate Division. The case had been argued five days earlier.

A ”Reliable Result”?

On appeal, the argument centered on Frye, Parker and their interplay.

The Frye test asks whether a proffered expert opinion is based on scientific principles “sufficiently established to have gained general acceptance” in the relevant professional community. Frye was the gold standard until 1993 when, in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, the U.S. Supreme Court articulated a heightened test for admissibility and imposed a “gate-keeping” role for judges. New York has not adopted Daubert and continues to embrace Frye, although, it seemingly fine-tuned or added to the Frye inquiry in Parker.

In the latter, a toxic tort case, the State”s highest court, the New York Court of Appeals, held that the “Frye inquiry is separate and distinct from the admissibility question applied to all evidence ” whether there is a proper foundation ” to determine whether the accepted methods were appropriately employed in a particular case.”

Parker requires courts to go beyond Frye and to fulfill somewhat of a Daubert gate-keeping role by deciding whether the scientific principle or procedure “lead[s] to a reliable result.”

Plaintiff attorney Lichtenstein argued in his brief that the forces of labor theory, to be admissible, must satisfy both the Frye and Parker prongs of the judicial inquiry. “A Frye inquiry poses the question of whether a theory is generally accepted in the medical or scientific community,” Lichtenstein said in his brief. “A Parker inquiry poses the foundational question of whether the theory is reliable by examining the data upon which the theory is predicated with regard to both general and specific causation.”

Counsel for the defendants Michael J. Willett, of Damon Morey in Buffalo, argued in his brief that Frye and Parker are not two parts of a new equation, but separate and distinct inquiries. Additionally, he maintained that Parker is applicable only in toxic tort cases, a defense the Appellate Department rejected, citing Lugo v. New York City Health and Hospitals Corp., 89 AD3d 42 (Second Department, 2004), and Rowe v. Fisher, 82 AD3d 490 (First Department, 2011).

The Fourth Department, in an unsigned memorandum, said that even if the forces of labor theory could survive a Frye hearing ” and, in the court”s opinion, it could not ” the defense would be inadmissible under Parker. “Even if it can be said that defendants established that plaintiff”s daughter was exposed to a harmful event unrelated to their actions with respect to her birth, we conclude that the court properly determined that defendants failed to meet both the specific causation and general causation prongs of the test set forth in Parker,” the court said in an opinion joined by Presiding Justice Henry J. Scudder and Justices Nancy E. Smith, Rose H. Sconiers, Jerome C. Gorski and Salvatore R. Martoche.

John Caher can be contacted at [email protected]. This article first appeared in the New York Law Journal, an ALM sister publication of this newsletter.

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In what may be a national first, an appellate panel in Rochester, NY, has rejected as scientifically invalid a standard defense in obstetrical medical malpractice cases. The Appellate Division, Fourth Department, in Muhammad v. Fitzpatrick, 11-01764, upheld Erie County Acting Supreme Court Justice Timothy J. Walker”s preclusion of evidence that a newborn”s injuries were caused in the birthing process and not by the actions of the doctor or hospital.

Justice Walker held that the “maternal forces of labor” theory advanced by the defense was based on a “small number of articles written by a few authors, each of whom based their conclusions in part on the writings of other members of that small group.” He said the theory did not satisfy the New York-adopted federal standard for admissibility ” Frye v. United States , 293 F. 1013 (DC 1923) ” or the foundation rule set by the state Court of Appeals in Parker v. Mobile Oil Corp. , 7 NY3d 434 (2006). The Fourth Department unanimously affirmed.

A Remarkable Ruling

Plaintiffs” attorneys were unable to identify any similar appellate ruling in the nation.

“What we consider junk science has been used all over the state and country to deprive plaintiffs of recovery they are entitled to,” said Joseph M. Lichtenstein of Mineola, NY, who represented the plaintiff.

John H. Fisher, a medical malpractice plaintiff”s counsel with Mainetti, Mainetti & O”Connor in Kingston, NY, who is not involved in the matter, said the ruling has enormous implications in cases involving a brachial plexus injury. Fisher said that in brachial plexus cases, the plaintiff”s theory is typically that the injury was caused by excessive force used by a physician during delivery, and the defense is usually that the damage was not caused by the doctor but by the natural forces of labor, such as uterine contractions. He said the Fourth Department”s holding is “phenomenal from a plaintiff”s point of view.”

“This could set a precedent in an appellate level court,” Fisher said. “This is huge. With this, the defense will be scrambling to say something other than the forces of labor caused the brachial plexus injury.”

Fisher said there are only two explanations for a brachial plexus injury sustained during birth ” excessive lateral traction by the obstetrician, or the forces of nature ” and the Fourth Department”s holding seemingly precludes anything other than physician negligence. “This knocks out a huge defense argument and is a big win for the plaintiff,” Mr. Fisher said.

Lichstenstein said appellate courts in Texas, Ohio and Colorado have all held that the force of labor theory is admissible.

The Case

In the New York Appellate Department case, Belinda Muhammed sued Sisters of Charity Hospital in Buffalo and Dr. John K. Fitzpatrick for malpractice after her daughter Asalah Abdul-Maalix sustained a brachial plexus injury, resulting in Erb”s Palsy and a partially paralyzed arm. The brachial plexus is a network of nerves that controls muscle movements in the shoulder, arm and hand. According to court records, three nerve roots in the baby”s brachial plexus were torn from her spine.

At trial, the defense claimed that the Erb”s Palsy was unrelated to the delivery and resulted from the “maternal forces of labor.” Specifically, the defendants argued that after the baby”s head was delivered, her shoulder became lodged in the pubic symphysis, a cartilaginous joint in her mother”s pelvis, and the damage was caused by the forces of labor.

At trial, Justice Walker allowed the defendants to present the defense, but the proceeding resulted in a hung jury and mistrial.

Plaintiff attorney Lichtenstein then moved to preclude the forces of labor defense from a retrial slated for June, and Justice Walker granted the motion, resulting in the appeal decided Jan. 31 by the Appellate Division. The case had been argued five days earlier.

A ”Reliable Result”?

On appeal, the argument centered on Frye, Parker and their interplay.

The Frye test asks whether a proffered expert opinion is based on scientific principles “sufficiently established to have gained general acceptance” in the relevant professional community. Frye was the gold standard until 1993 when, in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, the U.S. Supreme Court articulated a heightened test for admissibility and imposed a “gate-keeping” role for judges. New York has not adopted Daubert and continues to embrace Frye, although, it seemingly fine-tuned or added to the Frye inquiry in Parker.

In the latter, a toxic tort case, the State”s highest court, the New York Court of Appeals, held that the “Frye inquiry is separate and distinct from the admissibility question applied to all evidence ” whether there is a proper foundation ” to determine whether the accepted methods were appropriately employed in a particular case.”

Parker requires courts to go beyond Frye and to fulfill somewhat of a Daubert gate-keeping role by deciding whether the scientific principle or procedure “lead[s] to a reliable result.”

Plaintiff attorney Lichtenstein argued in his brief that the forces of labor theory, to be admissible, must satisfy both the Frye and Parker prongs of the judicial inquiry. “A Frye inquiry poses the question of whether a theory is generally accepted in the medical or scientific community,” Lichtenstein said in his brief. “A Parker inquiry poses the foundational question of whether the theory is reliable by examining the data upon which the theory is predicated with regard to both general and specific causation.”

Counsel for the defendants Michael J. Willett, of Damon Morey in Buffalo, argued in his brief that Frye and Parker are not two parts of a new equation, but separate and distinct inquiries. Additionally, he maintained that Parker is applicable only in toxic tort cases, a defense the Appellate Department rejected, citing Lugo v. New York City Health and Hospitals Corp. , 89 AD3d 42 (Second Department, 2004), and Rowe v. Fisher , 82 AD3d 490 (First Department, 2011).

The Fourth Department, in an unsigned memorandum, said that even if the forces of labor theory could survive a Frye hearing ” and, in the court”s opinion, it could not ” the defense would be inadmissible under Parker. “Even if it can be said that defendants established that plaintiff”s daughter was exposed to a harmful event unrelated to their actions with respect to her birth, we conclude that the court properly determined that defendants failed to meet both the specific causation and general causation prongs of the test set forth in Parker,” the court said in an opinion joined by Presiding Justice Henry J. Scudder and Justices Nancy E. Smith, Rose H. Sconiers, Jerome C. Gorski and Salvatore R. Martoche.

John Caher can be contacted at [email protected]. This article first appeared in the New York Law Journal, an ALM sister publication of this newsletter.

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