$5.5 Million Childbirth Malpractice Verdict Against Lenox Hill Hospital, Later Reversed on Appeal

Maria Pilar Bustos went to Lenox Hill Hospital's labor and delivery unit to have a baby. She left with injuries that changed the way she moves. During the delivery of her 10-pound child, she suffered a symphysis pubis diastasis, a fracture and separation at the joint where the two halves of the pelvis meet. The accompanying back injuries required multiple surgeries to place hardware and neurological devices. She has walked with a cane since.

Mrs. Bustos, a Queens resident, had been vocal about her concerns before and during labor. She complained of severe discomfort throughout her pregnancy and repeatedly requested a cesarean section. Her requests were not honored. What followed in the delivery room, she alleged, compounded the harm.

The attending physician was absent at the critical moment. A first-year resident and a nurse handled the delivery in his place. Staff performed hyperflexion-abduction maneuvers, a recognized obstetric technique applied when a large baby requires repositioning during delivery. The plaintiff's position at trial was that those maneuvers were applied with excessive force and at an exaggerated degree while she was heavily anesthetized and unable to resist. Years before the merits trial, a 2006 pre-trial ruling had denied the plaintiffs' request to physically inspect and videotape the delivery suite, with the Appellate Division First Department holding that a floor plan was adequate for litigation purposes.

The merits trial took place in New York County Supreme Court, Manhattan, roughly eight years after the delivery. Hill & Moin LLP represented Maria and Cesar Bustos, and firm associate Scott Occhiogrosso tried the case. After two weeks of testimony, a jury of six deliberated for under an hour before returning a unanimous verdict against the hospital.

In April 2011, the jury awarded $5.5 million.

Lenox Hill Hospital appealed. Cheryl Eisberg Moin, the firm's appellate partner and counsel of record for the Bustos family in the Appellate Division, defended the verdict on appeal. In 2013, the Appellate Division First Department reversed it, finding that the plaintiff's sole medical expert had not adequately supported his conclusions. The court described the expert's testimony as speculative and without probative force, noting that the expert had not explained how his opinion connected to the specific events of Mrs. Bustos's delivery. The New York Court of Appeals later affirmed the reversal.

The $5.5 million figure reflects the award as returned by the jury before the appellate reversal.