Bustos v. Lenox Hill Hospital

Order, Supreme Court, New York County (Eileen Bransten, J.), entered June 28, 2005, which denied defendants’ motion for a protective order prohibiting plaintiffs from inspecting, photographing and videotaping the hospital’s labor and delivery suite, reversed, on the law, the facts and in the exercise of discretion, without costs or disbursements, and the motion granted.

In this medical malpractice action against Lenox Hill Hospital and two treating physicians for injuries sustained by plaintiff Maria Pilar Bustos during childbirth, plaintiff alleges that she suffered a symphysis pubis diastasis—a separation and/or fracture of the lower pelvic bone—as a result of the use of excessive force in a procedure1 performed on her in the delivery room. On March 28, 2005, after making an informal demand during plaintiffs deposition, plaintiffs served on defendants a demand for entry upon land to inspect, photograph and videotape the labor and delivery suite at Lenox Hill Hospital in which plaintiff gave birth. Defendants moved for a protective order denying plaintiffs’ demand, arguing that inspection of the labor and delivery suite has no relevance to the litigation and that it would intrude on a sensitive patient area for no legitimate purpose. In opposition, plaintiffs noted that, at plaintiffs deposition, defendant had questioned her about the bed, the footrest and the location of various people in the delivery room and that since defendants obviously have access to the delivery room, plaintiffs should also be able to view the room and refresh their recollections of its layout. Supreme Court denied defendants’ motion, finding the information as to the layout of the delivery room relevant, and noting that the size and shape of the room might be probative of whether defendants were able to push plaintiffs legs over her abdomen and spread them widely.

CPLR 3101 (a) provides for the “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Under this standard, disclosure is required “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v CrowellCollier Publ. Co., 21 NY2d 403, 406 [1968]). Since plaintiffs have failed to show that the inspection sought is “material and necessary,” the protective order should have been granted.

While, as noted, plaintiffs argued in opposition to the motion for a protective order that plaintiffs should have an “opportunity to view the room and to refresh their recollections of its layout” and claimed that knowledge of the layout will assist plaintiffs’ counsel in questioning the doctors and nurse at their EBTs, plaintiffs failed to explain what relevance the layout of the delivery room had to any issue in the case. Nor does the reasoning offered by the Supreme Court—that “the size and shape of the room might be probative as to whether defendants were able to push [plaintiffs] legs over her abdomen and spread them widely”—justify an inspection of the delivery room. First of all, plaintiffs do not dispute that the room was large enough for this purpose. Moreover, knowledge of the layout and size of the room can be made available to plaintiffs by other means, i.e., a floor plan. Plaintiffs’ argument on appeal that the inspection will help establish that there was sufficient space in the room to perform the McRoberts maneuver properly is similarly unavailing.2 The issue is not whether there was sufficient space to perform the procedure properly but whether the procedure was performed and, if so, whether it was performed properly. In any event, as noted, a floor plan of the area would clarify—even better than a photograph—whether there was enough room to perform the procedure properly. As to the dissent’s concern that a floor plan would not show the furnishings and equipment that were in the room when plaintiff gave birth, there is no reason why a floor plan could not include such information, to the extent it is available. In that regard, a floor plan would indeed be more reliable as to the conditions at the relevant time than an inspection three years after the fact. Concur—Marlow, J.P., Sullivan and Gonzalez, JJ.

1 The procedure, known as the McRoberts maneuver, is performed to facilitate delivery by forcefully pushing the patient’s thighs onto the abdomen and simultaneously spreading the patient’s legs outward (see Welch v Scheinfeld, 21 AD3d 802 [2005]).

2 In our view, the allegation in the complaint that defendants “fail[ed] to properly position the plaintiff during labor and delivery” does not, as the dis-. sent concludes, raise the issue of space in the delivery room. Viewed in context, there is nothing to suggest that this is anything but a reference to the positioning of plaintiffs body, and not one to her position in reference to the room.