A woman who was 38 weeks pregnant complained of decreased fetal movement. She was referred to a certified nurse midwife (CNM) for a nonstress test to ascertain the health of the fetus. After the defendant performed the nonstress test, the CNM found it to be “reactive,” or normal, in that there were sufficient increases in the fetal heart rate (FHR) over a period of time. Three days later, the woman delivered a stillborn infant with a “tightly wound” nuchal cord (the umbilical cord wrapped around the infant’s neck).
The woman sued the CNM. At trial, the woman’s expert opined that the nonstress test revealed that the FHR was not adequate, and that the woman should have been referred for additional monitoring. The woman’s expert asserted that had the mother been admitted to a hospital and undergone FHR monitoring, such testing would have detected signs of fetal distress, such as decreased fetal heartbeat and lack of variability, which could signal that a baby was deprived of oxygen, both of which were present when the CNM performed the nonstress test. Further, had a physician been present, he or she could have performed an immediate caesarian section, and saved the baby.
The Bronx County Supreme Court entered a judgment on a jury verdict awarding the woman $200,000 for past emotional distress and $200,000 for future emotional distress.
The Appellate Division of the New York Supreme Court, First Department, affirmed. The court held that no basis existed to disturb the verdict as resolution of the case turned on an evaluation of conflicting expert testimony.
No basis existed to disturb the verdict as resolution of the case turned on an evaluation of conflicting expert testimony. The jury was entitled to resolve in the woman’s favor the conflict between the parties’ experts’ testimony with respect to what constituted a reactive nonstress test of the fetus. Thus, although the CNM’s expert reached a different conclusion concerning causation, the jury was free to accord more weight to the testimony of the woman’s expert.
The Appellate Division of the New York Supreme Court, First Department, affirmed the trial court’s entry of a judgment on a jury verdict awarding the woman $400,000.
See: Douayi v. Carissimi, 2016 WL 1313157 (N.Y.A.D. 1 Dept., April 5, 2016) (not designated for publication).
See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability
See the Medical Law Perspectives February 23, 2015, Blog: Florida’s No-Fault Compensation System for Severe Birth Injury Claims Fails Again
See the Medical Law Perspectives December 17, 2014, Blog: Who Qualifies As An Expert for Certified Nurse Midwife Malpractice Litigation?