On March 7, 2017, the New York Supreme Court, Appellate Division, First Department (“Appellate Court”) affirmed summary judgment entered in favor of the New York medical malpractice defendants, finding that the New York medical malpractice plaintiffs had failed to meet their burden of proffering any evidence sufficient to raise an issue of fact as to whether the use of chromic sutures rather than vicryl sutures during the plaintiff patient’s episiotomy procedure was a proximate cause of her injuries.
The Appellate Court held, “We find that defendants have made a prima facie showing sufficient to demonstrate their entitlement to summary judgment and that plaintiffs have failed to rebut that showing by way of medical evidence of a departure from accepted medical practice and that such departure was a proximate cause of plaintiff patient’s injuries.”
The Underlying Facts
On November 13, 2011, the plaintiff patient was required to have an emergency episiotomy (an incision in the perineum, which is the area between the vagina and the anus) during the birth of her baby because the baby’s shoulders became stuck during delivery and several maneuvers to free the baby’s shoulders were unsuccessful. The baby was then successfully delivered safely but the plaintiff patient suffered a fourth degree perineal laceration during the course of delivery, resulting in severe bleeding.
The defendant physician repaired the laceration using vicryl (synthetic) sutures for the rectal mucosa (the membrane that lines the rectum) but using chromic (natural material) sutures for the internal and external anal sphincter (the muscles that control the opening and closing of the anus).
On November 14, 2011, another physician noted that the plaintiff patient’s blood loss had made her anemic. She was not discharged from the hospital until November 18, 2011.
On January 12, 2012, the plaintiff patient was diagnosed with a rectovaginal fistula (abnormal passage between the two organs) and required four surgical procedures to repair the fistula and restore colorectal control. The fistula eventually healed, but the plaintiff patient continued to suffer from fecal incontinence.
On January 31, 2013, the plaintiff patient and her husband filed their New York medical malpractice action, claiming that the defendant physician was negligent in using chromic rather than vicryl sutures in some portions of the laceration repair and that the defendants’ negligent obstetrical care resulted in the plaintiff patient’s fistula, fecal incontinence, and colorectal instability.
The New York medical malpractice defendants filed a motion for summary judgment and submitted evidence, including an expert’s opinion, stating that there was no departure from good and accepted medical practice and that, even if there was a departure, it was not a proximate cause of the plaintiffs’ alleged injuries.
The plaintiffs opposed the defendants’ motion for summary judgment, arguing that an issue of fact existed as to whether there was a departure from the standard of care, relying on their own expert who opined that the defendant physician’s use of chromic rather than vicryl sutures to repair the plaintiff patient’s fourth degree perineal laceration, although generally acceptable, was a departure from accepted medical practice where, as here, the patient was anemic or suspected to be anemic.
The plaintiffs’ expert’s opinion was that the use of chromic rather than vicryl sutures was a substantial factor in causing the plaintiff patient’s injuries because chromic sutures retain their tensile strength for a shorter period of time (14 days) than vicryl sutures (35 days), but did not offer any opinion as to precisely how much time elapsed between the laceration repair and the breakdown of the sutures (the plaintiff’s expert only opined that the breakdown started before December 20, 2011 and continued through January 10, 2012).
The Appellate Court held that the plaintiffs’ evidence was insufficient to raise an issue of fact as to whether the breakdown of the sutures had begun at any time at which the use of vicryl sutures instead of chromic sutures could have made any difference. Therefore, the plaintiffs failed to meet their burden of proffering any evidence sufficient to raise an issue of fact as to whether the use of chromic sutures rather than vicryl sutures was a proximate cause of the plaintiff patient’s injuries.
Source Ducasse v. New York City Health And Hospitals Corporation, Index 20397/13E.
If you or a loved one suffered a birth injury in New York or in another U.S. state, you should promptly find a New York birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you in a birth injury case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find birth injury attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.