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Hospital Possible Vicarious Liability for Nurse’s Excessive Force during C-Section


A woman gave birth via cesarean section to a son at a medical center. The mother’s obstetrician performed the surgical procedure. During the procedure the obstetrician was initially unable to remove the child because his head was deep in the birth canal. An unidentified nurse inserted a hand vaginally to push the child’s head up the canal so the obstetrician could remove the child through the surgical incision. Although not noted immediately, the child developed difficulties within a day and was discovered to have suffered a fractured skull and other asserted serious injuries.

 

The woman sued the medical center and hospital. The complaint alleged that the unidentified nurse employed by the medical center and hospital who assisted the obstetrician applied excessive force to the child’s head causing his injuries.

 

The obstetrician testified that she could not remember who assisted her in attempting to flex the child’s head. The obstetrician acknowledged that she would usually ask a nurse to push from below as she reached from above. However she could not recall whether she had requested or instructed anyone to assist her during this particular procedure. The hospital and medical center’s expert stated that a nurse would perform this type of assistance only if requested by the attending physician, such a system is not uncommon, and the amount of force that could be employed by such assistance could not have fractured the child’s skull.

 

The woman’s expert opined that the child’s injuries would not have occurred in the absence of excessive force, there was no possibility that the child’s skull was fractured in utero, and there was no evidence that the injuries occurred after delivery. The expert stated that, although the maneuver used to free the child’s head should be done in a gently nontraumatic fashion there was clearly the potential to cause serious injury if excessive force was used. He set forth his opinion to a reasonable degree of medical certainty that the child’s injuries were caused by the use of excessive force.

 

The hospital and medical center moved for summary judgment dismissing the complaint against them contending that they were not liable because the obstetrician was not an employee and the nurse allegedly acted at the obstetrician’s request and under her supervision. The Schenectady County Supreme Court denied the motion.

 

The Appellate Division of the New York Supreme Court, Third Department, affirmed. The court held that there was a factual issue as to whether one of the hospital and medical center’s nurses engaged in an act of independent negligence such that the hospital and medical center may have been vicariously liable.

 

There was a factual issue as to whether one of the hospital and medical center’s nurses engaged in an act of independent negligence such that the hospital and medical center may have been vicariously liable. In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee. The hospital may not be held concurrently liable unless its employees committed independent acts of negligence or the attending physician's orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the attending physician's orders. The testimony of the woman’s medical expert raised a factual issue as to whether one of the hospital and medical center’s nurses engaged in an act of independent negligence by using excessive force not requested by the obstetrician when attempting to flex or push the child’s head from the birth canal.

 

The Appellate Division of the New York Supreme Court, Third Department, affirmed the trial court’s denial of the hospital and medical center’s motion to dismiss.

 

See: Trifiletti v. Hee-Young Cheon-Lee, 2015 WL 919629, 2015 N.Y. Slip Op. 01856 (N.Y.A.D. 3 Dept., March 5, 2015 (not designated for publication).

 

See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability.

 

 

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