Court Finds Obstetrician Is Not Entitled To Emergency Doctrine Charge

An obstetrician is faced with an emergency during delivery. The infant is injured as a result of the obstetrician's actions to avert the emergency, and the parents commence a medical malpractice action. The question is - Is the obstetrician entitled to an "emergency doctrine" charge at trial? The Second Department had to decide this issue June 5th in Amodeo v Cumella, 2007 NY Slip Op 04762.

The main facts were as follows. During the delivery of the infant, the obstetrician recognized that the infant's shoulder was not moving past the bony portion of the mother's pelvis, a condition known as Shoulder Dystocia. The obstetrician thus completed a series of obstetrical maneuvers to dislodge the shoulder and deliver the infant.  At the trial, the obstetrician requested an emergency doctrine instruction over the plaintiff's objection. The Trial court gave the charge, and the jury returned a verdict finding that the obstetrician's acts were not a departure from accepted standards of care. The Second Department reversed and ordered a new trial.

The "emergency doctrine" is a common law concept which recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency. A party is thus entitled to a charge on the emergency doctrine when, viewing the evidence in the light most favorable to that party, there is a reasonable view of the evidence that his or her conduct was the product of a sudden and unforeseeable occurrence not of his or her own making which leaves little or no time for thought, deliberation or consideration (Caristo v Sanzone, 96 NY2d 172).

So what led the Second Department to conclude that the emergency doctrine was not applicable in the case. Evidence at trial revealed the following. The obstetrician testified that he encountered no difficulties during the delivery until he observed a "turtling" sign, where the infant's head was delivered but then retracted, indicating shoulder dystocia. According to the obstetrician, the shoulder dystocia presented an obstetrical emergency, as there was a limited window of time to deliver the infant before depriving him of oxygen. The nurse assisting during the delivery also stated that the situation was life-threatening, and both the mother and her husband, who were present in the delivery room, testified that they believed there was an emergency taking place during the delivery. Moreover, an expert obstetrician testified about the importance of recognizing a shoulder dystocia, noting the condition presents an emergency.

However, the evidence at trial also established that obstetricians are generally prepared for the occurrence of a shoulder dystocia. The expert testified that she had treated about 150 to 200 shoulder dystocias out of the approximately 8,000 babies that she had delivered. She stated that shoulder dystocias and their complications are present in approximately one percent of all deliveries in the United States, and occur with a fair amount of frequency within the normal range of deliveries. A second nurse who assisted during the delivery of the infant also testified that she had participated in hundreds of deliveries and had attended about 50 deliveries during which a shoulder dystocia had occurred.

Although defendant obstetrician testified that he did not anticipate the occurrence of a shoulder dystocia during the course of delivering the infant, he nevertheless prepared for the possibility of a shoulder dystocia in all of his deliveries. In addition, the expert obstetrician testified that the medical training received by obstetricians, with regard to the procedures to be followed when confronted with a shoulder dystocia, is standard and the obstetrician's management of such cases becomes "instinctive."

The Second Department found that since the defendant obstetrician was trained and prepared for the occurrence of a shoulder dystocia, which was not considered an unforeseen occurrence within the field of obstetrics, he was not entitled to the "emergency doctrine" charge.

The problem with the Second Department's decision, as I see it, is if a 1% chance of a particular event from happening does not constitute an emergency, what does? Is the Second Department saying essentially that because obstetricians are trained to anticipate and be prepared for all delivery situations the emergency doctrine never applies. If so, I believe the decision is incompatible with the purpose of the emergency doctrine. If there is only a 1% chance of shoulder dystocia occurring during birth, an obstetrician could go an entire career without ever being faced with the situation. Of course it is desirable to have obstetricians to be prepared for any type of emergency during delivery. However, the mere fact that they are so trained does not in any way lessen the fact that during a rare situation the doctor may have a limited amount of time to think and act to prevent injury. It is this fact - that the doctor has a limited amount of time to act - which should be the primary consideration in judging an obstetrician's actions in rare situations. It is precisely because there is limited time, that any sort of preparation or training becomes irrelevant. Training and preparation can easily be forgotten when confronted with a rare situation. That is why the emergency doctrine is recognized. And to say, as I believe the Second Department has now held, that obstetricians are not entitled to the doctrine is unwise.