Another Judge Rejects Use of 'Forces of Labor' Defense

, New York Law Journal


The "maternal forces of labor" defense in Erb's Palsy medical malpractice actions has taken another hit with a trial decision in Steuben County that precludes the defendants from introducing a theory that maternal pushing and uterine contractions, and not physician error, injured a newborn's brachial plexus.

Acting Supreme Court Justice Peter Bradstreet (See Profile) drew from both the Appellate Division, Fourth Department, holding in Muhammad v. Fitzpatrick, 91 AD3d 1353 (2012), and a recent decision by Supreme Court Justice Paul Marx of Orange County in Nobre v. Shanahan, 8122/2008, to bar testimony regarding the maternal forces theory.

The theory has been utilized, often successfully, for more than 20 years to defend doctors sued for malpractice when a newborn suffers an injury to the brachial plexus, a nerve network in the neck and shoulder that controls movements and sensation in the shoulder, arm, wrist and hand. Under that theory, the damage is caused by the natural forces of labor and not, as typically alleged, by excessive force used by the doctor in attempting to dislodge the baby's shoulder from the maternal pubic symphysis.

In Muhammad, the Fourth Department held that the maternal forces theory does not meet the Frye standard of admissibility (see Frye v. United States, 293 F. 1013 (DC 1923) and NYLJ, Feb. 8, 2012) or the Parker causation test (see Parker v. Mobile Oil, 7 NY3d 434 (2006)).

Last month, Marx found in Nobre that while the theory does satisfy Frye, it cannot meet the Parker test (NYLJ, Dec. 27).

Bradstreet, in Sutryk v. Osula, 91904, held that under Parker the defendants' experts could not establish that maternal forces of labor could cause a permanent brachial plexus injury.

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