In this medical malpractice action, the plaintiffs-respondents recovered jury verdicts totaling $350,000 against the defendants-appellants, East Bronx Medical Group, a partnership composed of Drs. Weinstein, Posner and Levine, for birth related injuries sustained by the infant plaintiff, Chaka Henry. Appellants argue the verdicts should be reversed and the case dismissed, or alternatively, the verdicts should be set aside and the matters remanded for a new trial.
On April 2, 1969, at approximately 11:30 p.m., the infant plaintiff’s mother, who had been under the care of the East Bronx Medical Group, was admitted to the Bronx Lebannon Hospital in the early stages of labor. Two weeks before Chaka Henry was born, an X ray of Mrs. Henry’s abdomen indicated a single large fetus. About the same time, Dr. Posner also performed clinical pelvimetry, an internal examination of the pelvic canal, to assure the pelvis was adequate for a vaginal delivery and determined that the intertuberous diameter, the measurement of the outlet of the pelvis, was 8.0 centimeters. Appellants contend this measurement indicated an adequate pelvis for a vaginal birth, while respondents argue this was an abnormally small pelvic opening, especially when the presence of a large fetus was known and that the failure to conduct X-ray pelvimetry was a departure from good practice and a proximate cause of the infant’s injuries. They claim if X-ray pelvimentry had been performed, it would have been clear that a Caesarian section was the only proper delivery procedure.
At the hospital Dr. Weinstein, another member of the group, assumed management of the case. He was assisted at all stages of the delivery by Dr. Umali, a second-year resident. Mrs. Henry’s labor progressed satisfactorily and according to appellants there was no reason to believe the fetus could not be delivered by a normal vaginal delivery. However, as noted, plaintiff’s contended and offered opinion evidence that the small intertuberous measurement coupled with an indication of a large fetus (the child weighed 10 pounds 10 ounces at birth) indicated there would be difficulty if the procedure used was a vaginal delivery. In this respect plaintiff’s expert, Dr. Nathanson, testified "the outlet of the pelvis is below average *483size and with a baby of even average, let alone very large size, one would encounter difficulty in delivering at the outlet.” According to plaintiffs expert under these circumstances X-ray pelvimetry should have been performed and appellants’ failure to do so was a departure from good practice. The jury concurred.
In a special finding the jury concluded the failure to do X-ray pelvimetry constituted malpractice and caused injury to the infant plaintiff. Appellants’ claim, that since the fetal head reached the +3 or +4 position without forceps obviously there was no cephalo-pelvic disproportion and therefore the use of X-ray pelvimetry would have been futile, overlooks three important facts. First, while Dr. Weinstein testified the fetal head had reached the +3 or +4 position before forceps were used, the hospital record showed the head had only reached the +1 position. Secondly, Dr. Weinstein testified that the infant’s fractured skull was caused by the passage of the fetal head through the birth canal indicating that the doctor was unsure whether there was a problem of cephalo-pelvic disproportion. And finally, when Dr. Neuwirth, the appellants’ expert, was asked whether the shoulder dystocia suffered by the infant could have been "due to cephalo pelvic or fetal pelvic disproportion”, he responded it could. There was thus sufficient evidence before the jury to warrant a finding of malpractice.
It appears that during the delivery process the baby was in a face up rather than the more common and preferable face down position. Two attempts to manually rotate the fetal head, an admittedly proper procedure, proved ineffectual. Dr. Nathanson testified an attempt should then have been made to rotate the head instrumentally and if this failed he opined the proper procedure to be followed was to perform a Caesarian section and that there was ample time to do so. This was disputed by Dr. Weinstein who believed a forceps delivery was then in order and that there was insufficient time to perform a Caesarian section.
According to the record, at this juncture appellants knew they had a borderline intertuberous measurement and a large fetus which was in the face up position thus presenting a wider diameter to the pelvis and requiring more effort to bring the baby’s head down. And, significantly, as appellants’ own expert, Dr. Neuwirth, acknowledged, the unsuccessful attempt to manually rotate the infant’s head was a medical *484indication that the baby might have dystocia problems if a vaginal delivery was performed. Dystocia problems were therefore foreseeable. These circumstances sufficiently support the jury’s special finding that the failure to perform a Caesarian section, at that point, was malpractice.
The record also supports the jury’s special finding that the forceps delivery constituted malpractice. As previously noted, while Dr. Weinstein testified the fetus was at the +3 position, the hospital record indicates when the forceps were applied the fetal head was only at 4-1. According to Dr. Nathanson, under those circumstances, particularly in view of the size of the fetus, a forceps delivery was not in conformity with proper medical practice. Furthermore he testified the type of forceps which had been selected, the DeWees forceps, was improper for they were not designed to be applied to a baby in the posterior position and could lead to serious damage to the infant.
After the head had been delivered by forceps it was observed the shoulders had become impacted, a condition known as shoulder dystocia. The head having already been delivered, it was then impossible to perform a Caesarian section. In an effort to free the shoulders, Dr. Weinstein applied fundal pressure while Dr. Umali applied traction to the baby’s head to extract the child. Plaintiff’s expert testified that the infant’s clavicle had been broken because of the excessive fundal pressure applied by Dr. Weinstein. The jury obviously could and did accept plaintiffs’ expert’s opinion for it rendered a special finding that Dr. Weinstein used excessive force during the delivery.
Nor does the charge to the jury require a reversal for the errors were essentially harmless. Specifically the trial court’s refusal to charge that if the jury found appellants were faced with an emergency and, "If you find that the defendants acted reasonably under the circumstances, your verdict must be for the defendants. The fact that wrong decisions may have been made does not constitute negligence in the presence of peril” does not constitute reversible error. Indeed the essence of that request was given for the trial court charged that "in determining whether the various doctors in this case were chargeable with malpractice or not, I charge you that you are to consider the circumstances facing each particular doctor at the time of his examination and at the time of the actual delivery” and further "The rule requiring doctors to use their *485best judgment in the exercise of the skill they possess does not hold them liable for a mere error of judgment, provided he * * * does what he thinks is best after a careful examination. Doctors do not guarantee a good result, but they * * * promise to use * * * their best judgment under the circumstances. ” Moreover, since appellants were not faced with an emergency during the period X-ray pelvimetry could have been performed, an emergency charge would have been inappropriate with regard to the claim that the failure to conduct X-ray pelvimetry was malpractice.
In view of the permanent injuries suffered by the infant plaintiff, it cannot be said that the verdicts, as reduced by the trial court, are excessive.
I would affirm.
Birns, Silverman and Nunez, JJ., concur in Per Curiam opinion; Murphy, J.P., and Yesawich, J., dissent in an opinion by Yesawich, J.
Judgment, Supreme Court, Kings County, entered on June 23, 1975, reversed, on the law and on the facts, as to defendants-appellants East Bronx Medical Group, Howard Weinstein, Maurice Posner and William Levine, and the matter severed as to said defendants-appellants and remanded for a new trial. The portion of the judgment dismissing the complaint as to the defendants Bronx Lebanon Medical Center and Dr. Umali is affirmed. Plaintiffs did not appeal from such dismissal. Both dispositions are made without costs and without disbursements.