Medmal Theory Is Called Into Question

, New York Law Journal

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The "maternal forces of labor" theory used to explain a newborn child's injuries and defend doctors against malpractice claims has been rejected by a trial judge nearly two years after an upstate appellate panel discarded the premise on different grounds.

Together, the decisions seemingly signal that the defense cited almost routinely in certain obstetrical cases, especially those involving a brachial plexus injury or Erb's Palsy, is vulnerable in New York state, despite the fact that it has been successfully utilized for two decades.

In February 2012, the Appellate Division, Fourth Department, found scientifically invalid the theory that the natural process of birthing can cause serious injuries to a newborn's shoulder area.

The justices in Rochester concluded in Muhammad v. Fitzpatrick, 91 AD3d 1354 (2012), that the theory was not generally accepted in the relevant scientific community, and therefore could not meet the Frye standard of admissibility (see Frye v. United States, 293 F. 1013 (DC 1923) and NYLJ, Feb. 8, 2012).

The latest ruling attacks the maternal forces theory from a different angle.

Supreme Court Justice Paul Marx (See Profile), who is from Westchester County but sat in Orange County for this case, said the theory met the Frye test.

But Marx found that it cannot meet the foundational requirements the New York Court of Appeals set in Parker v. Mobil Oil, 7 NY3d 434 (2006), a toxic tort case. The Parker question is "whether there is a proper foundation to determine whether the accepted methods were appropriately employed in a particular case."

In Nobre v. Shanahan, 8122/2008, Marx said the defense expert, whose conclusions were generally based on experiments with rats and rabbits, could not establish the specific causation required under Parker. In other words, Marx said, there was a lack of proof connecting the maternal forces theory to the actual injury sustained by this plaintiff, Eduardo Nobre Jr.

Nobre, who was born Sept. 3, 2006 at St. Anthony Community Hospital in Warwick, alleges he suffered shoulder dystocia, which occurs when the infant's shoulder gets stuck on the mother's symphysis pubis during the final passage to delivery. The suit alleges the doctor exerted too much force in attempting to free the baby, causing a permanent injury.

In defense, the physician and hospital sought to present evidence that natural labor forces can cause the injury allegedly suffered by Nobre. But Marx precluded that defense on Parker grounds.

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