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Senior Trial Partner Thomas A. Mobilia and Christopher A. Terzian successfully obtained Summary Judgment in New York County Supreme Court in a case involving an alleged negligent deliveryof an infant who experienced a non-displaced fractured right clavicle at birth. Plaintiffs’ counsel claimed excessive force was used by MCB’s client obstetrician in delivering the infant plaintiff. The infant's right clavicular fracture healed normally, and his right upper extremity was successfully treated with physical therapy.
MCB’s expert obstetrician submitted an Affirmation in support of the motion, opining that a fractured clavicle is a known risk of a normal vaginal delivery, and that the delivery record revealed MCB’s client obstetrician did not encounter any difficulties during the delivery of the infant. The expert further opined that the vaginal delivery performed by MCB’s client obstetrician was within good and accepted practice, and that there were no signs or symptoms prior to delivery that the infant’s clavicle was at risk for fracture during a vaginal delivery.
Plaintiffs’ expert opposed, arguing that the lack of any evidence of shoulder dystocia did not exclude the possibility that the clavicle was fractured during delivery due to excessive force and traction applied to the infant’s right shoulder by MCB’s client. The codefendant nurse and codefendant hospital also moved for Summary Judgment and were successful.
MCB's reply to plaintiffs’ opposition pointed out that the plaintiffs’ expert failed to raise any material, triable issue of fact, and that therefore Summary Judgment should be granted as a matter of law. MCB pointed out that each theory of negligence alleged by plaintiffs was not supported by the facts of the case. The fetal heart rate was normal at all times, there was no indication to perform a cesarean section delivery, the infant plaintiff was not a large baby, and there were no difficulties encountered by MCB's obstetrical client during his vaginal delivery of the baby.