Litigation against obstetricians has exploded in recent years for injuries caused during birth both to the mother and child. Obviously if the obstetrician himself is performing the delivery his duty to the patient seems straightforward. But what about the following situation. Suppose an obstetrician’s patient goes into labor, and for whatever reason the obstetrician is unable to make it to the hospital in time. So he calls in and has others cover for him to perform the delivery. Can the late obstetrician still be liable if injuries occur during delivery? This was the claim raised in Brown v Bauman, 2007 NY Slip Op 06251decided yesterday by the First Department.
In that case, the defendant Dr. Bauman was a solo practitioner and board-certified obstetrician/gynecologist who treated the plaintiff-mother during her pregnancy. When the mother went into labor, Dr. Bauman was unexpectedly late in proceeding from his home to the hospital to attend his patient’s labor and delivery. Nonetheless, he confirmed by telephone that an on-call attending obstetrician and the chief obstetrical resident were caring for the patient pending his arrival. These two other obstetricians delivered the infant, and Dr. Bauman eventually arrived at the hospital shortly after the birth, at which time the covering obstetricians were engaged in repairing a perineal laceration sustained by the mother during the delivery. After the delivery, the mother began to suffer urinary incontinence, and about one year later from fecal incontinence, which she claimed was caused by a torn sphincter and nerve damage.
The mother contended that with proper management by an experienced obstetrician/gynecologist, the perineum tear could have been avoided. The mother argued that had Dr. Bauman been present, his experience might have led him to perform an episiotomy, which would have prevented the perineum tear that extended into her anal sphincter. Instead, she claimed, the delivery was left to inexperienced residents, who performed a faulty repair of the perineal laceration.
Dr. Bauman moved for summary judgment dismissing the complaint. The motion was denied with the motion court finding that there were issues of fact as to the existence and scope of the duty owed by Dr. Bauman to his patient which should be resolved by a jury. However, the First Department reversed stating that the duty owed by Dr. Bauman to his patient was a legal question to be decided by the courts. The First Department stated that a physician who is unable to care for the patient does not depart from the standard of care so long as he or she arranges to transfer the care of the patient to another well-qualified physician. And on the record before it, the First Department found that Dr. Bauman established that he complied with this requisite standard of care. In addition, regardless of whether Dr. Bauman satisfied his duty to the mother, the First Department also found that the mother failed to submit any evidence to show the existence of an issue of fact as to causation. Thus, the action was dismissed.
In this case, Dr. Bauman was able to call ahead to arrange for qualified obstetricians to cover for him. Does the decision in this case necessarily mean that if Dr. Bauman did not call in he would be liable?