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Court upholds medical malpractice award in a case involving an injury during delivery of baby. Cinthya ARCOS v. Yehuda BAR–ZVI, 185 A.D.Sd 882 (2020)


In a medical malpractice case where the jury found the defendant to have been negligent, resulting in a severe injury to the plaintiff, the defendant asked the second department to determine whether the jury award should be set aside as excessive.

On November 12, 2011, 27-year old Cinthya Arcos gave birth. During delivery, Dr. Yehuda Bar–Zvi performed an episiotomy on Arcos.  The episiotomy involved Dr. Bar-Zvi made an incision in the area between the vagina and the rectum. Dr. Bar-Zvi then used a vacuum extractor to deliver the baby.

During the delivery, Arcos suffered a fourth degree perineal laceration during the course of delivery which Dr. Bar-Zvi did not diagnose and repair. As a result, a rectovaginal fistula developed.  A rectovaginal fistula is a hole between the rectum and the vagina.  It caused Arcos pain.  It also caused fecal material and gas to pass through her vagina. In 2012, Arcos underwent 2 surgeries to repair the fistula. Both Arcos and her husband sued Dr. Bar-Zvi.

The jury found in favor of the plaintiffs and awarded them $800,000 for past pain and suffering,  $120,000 for future pain and suffering, and $100,000 for past loss of services. The defendants appealed.

Supreme court’s decision
The Supreme Court, Second Department reviewed the jury’s decision.  The court noted that the amount of damages was a question for the jury and it would only be set aside if there was no rational basis for it.

To determine if the jury award is reasonable, the courts look at the nature and extent of the plaintiff’s injuries as well as damage awards in similar cases.  Here, the court determined that the jury’s awards for pain and suffering did not materially deviate from what would be reasonable compensation. Furthermore, the court concluded that jury’s award for past loss of services was not excessive and was supported by the evidence.

Proving medical malpractice
Note that before the court can get to the issue of damages, the plaintiff must first prove that the defendant committed medical malpractice.  Just because a patient ended up suffering injuries during a medical procedure does not necessarily mean that the medical professional who performed the procedure was negligent.

To prove negligence, a plaintiff must show the presence of 4 factors:

  • The existence of a doctor-patient relationship. The plaintiff had to show that she was in a doctor-patient relationship with defendant. A common wat to prove that such a relationship existed is to show medical bills with the doctor’s name on them showing that she treated her. The doctor-patient relationship obligates the doctor to provide the patient with the standard of care required by law.
  • Breach of the duty of care. Because of the doctor-patient relationship, the doctor treating the patient is required to adhere to a certain level of care. Failing to do so is negligence.  In this case, evidence was presented that showed that the doctor’s action caused the plaintiff to suffer a perineal laceration which the doctor did not catch and immediately repair.
  • Causation of the patient’s injuries. The negligent treatment by the defendants must have caused the plaintiff’s injuries. Here, evidence was presented that showed that failing to repair the perineal laceration led to a rectovaginal fistula.
  • Damages suffered by the plaintiff. The plaintiff must show that they suffered damages due to the defendant’s negligence. Here, medical evidence shows that the plaintiff suffered a rectovaginal fistula. As a result, the plaintiff suffered pain and has to have multiple surgeries.


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