NEW YORK, March 1 (Reuters) - A woman whose fetus was
stillborn cannot sue the doctor who performed an emergency
Caesarian section in a futile attempt to save its life, an
appeals court ruled Thursday.
In dismissing malpractice claims brought by the mother,
Katherine De Jesus, against Dr. Aruna Mishra, the Appellate
Division, First Department, rejected what it called De Jesus's
"extraordinary" legal argument.
While De Jesus is pursuing claims against the Bronx-Lebanon
Hospital and other staff for failing to immediately notice the
fetus' heart problems, those claims could not be pressed against
Mishra, since she was called after the problem became clear and
did not allow an excessive amount of time to elapse between her
diagnosis and the surgery, the court wrote.
Instead, De Jesus offered an alternate theory that the court
"It is based on the notion that Dr. Mishra should not have
proceeded with the c-section because in the intervening minutes
between her diagnosis of fetal distress and her commencement of
the procedure, it appeared that the fetus had died," wrote
Justice David Saxe for a unanimous five-judge panel.
The court said there was no factual basis for asserting that
Mishra could have concluded the fetus was beyond help, based
solely on the inability to detect a heartbeat. Indeed, Saxe
wrote, "physicians are expected and often required to attempt to
resuscitate individuals who stop breathing or whose hearts stop
"This is not to suggest that a plaintiff can never establish
medical malpractice based on a physician's performing an
unnecessary c-section to remove an already deceased fetus," the
court noted. "However, to make such a case, the plaintiff must,
at least, establish the existence of a factual basis for finding
that the physician should have concluded that it was too late
for surgical intervention."
The ruling does not affect De Jesus' claims against the
hospital and other staff members.
De Jesus arrived at the Bronx-Lebanon Hospital on Oct. 13,
2003, at 9 a.m., where staff eventually realized that her fetus
was having heart problems inside the womb.
Mishra was called in just past 11 a.m. after a nurse had
difficulty locating a fetal heartbeat. She diagnosed fetal
distress and performed an emergency Caesarian section to try to
rescue the infant.
De Jesus sued Mishra, hospital and staff in 2004, claiming
negligence, malpractice and emotional distress. Last year, Bronx
Supreme Court Justice Lucindo Suarez denied Mishra's motion for
The First Department reversed.
"I conclude that the opinion offered by plaintiffs'
board-certified expert lacks sufficient foundation to raise an
issue of fact," Saxe wrote. "Indeed, on this record, there is no
merit to the claim that it was a departure to fail to halt the
c-section in the face of indications that the fetus had died
after the procedure was directed."
Jacqueline Mandell, the lawyer who represented Mishra, said
the ruling properly dismissed a "bizarre" argument and ensured
that doctors would continue to do what they could to save
"Do you really want a bunch of obstetricians running around
wondering, 'Am I going to get sued if I try to save this baby's
life?'" she said.
A lawyer for De Jesus did not respond to a call for comment
The First Department panel included Presiding Justice Peter
Tom and Justices Karla Moskowitz, Leland DeGrasse and Sheila
The case is De Jesus v. Mishra et al., New York State
Supreme Court, Appellate Division, First Department, No. 5809.
For De Jesus: Leslie Kelmachter and Jay Wechsler of The
Jacob D. Fuchsberg Law Firm
For Mishra: Jacqueline Mandell of Kaufman Borgeest & Ryan
(Reporting by Joseph Ax)
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