New York State Court of Claims

New York State Court of Claims

COUTARD v. THE STATE OF NEW YORK, #2006-016-080, Claim No. 107965, Motion No. M-71667


Case Information

McKAYLA COUTARD, by her mother and natural guardian, CAMILLE ELLIS
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Joshua A. Schulman, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: John J. Kelley, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 4, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for summary judgment dismissing this claim, in which it is alleged that McKayla Coutard was cut on the forehead during her Cesarean delivery on May 1, 2003.[1] The parties are in agreement as to the following facts. After McKayla’s mother was admitted to the hospital, it was determined that a Cesarean delivery was medically indicated. After such delivery, it was noted that McKayla had suffered a one to two centimeter superficial laceration on her forehead. When an independent medical examination was conducted on January 31, 2005, the physician found a “well healed 1.5 cm obliquely oriented scar of the forehead just to the right of the midline position.”

According to defendant’s expert, Victor R. Klein, M.D., “there is no reason to believe . . . that the procedure was done negligently, recklessly, or with any undue haste. By all accounts, this appears to be a standard, routine Cesarean delivery . . . Review of the medical records and deposition of Dr. Abdelmalek establish that standard, proper and routine surgical techniques were utilized . . . Stated otherwise, there were no departures from standards of care . . .”

Dr. Klein states that a fetal laceration during a Cesarean delivery is “a known complication . . . The medical literature shows that lacerations to the fetus occur in approximately one to two percent of all Cesarian section deliveries. Usually, these injuries are unavoidable and occur . . . in the absence of negligence, often when . . . the exact location of the fetus is difficult to determine.”

Claimant’s expert, Douglas R. Phillips, M.D. disagrees with Dr. Klein and states that the care received by McKayla “was not in accord with good and accepted medical/obstetrical practice . . .” According to Dr. Phillips, “[w]hile laceration of a fetus during a Cesarean section may be a recognized complication . . . that does not mean that it is an acceptable result in a routine Cesarean and such a laceration as was suffered by . . . McKayla . . . should not and will [not] occur in the absence of negligence . . . If Dr. Abdelmalek was as careful as he claims to have been in palpating Camille Ellis’ abdomen and in determining the location of the fetus’ head through the uterine wall prior to making the incision, McKayla . . . would not have been cut . . .”

Dr. Phillips maintains that medical literature “referred to in [defendant’s] expert affidavit refers to emergent/emergency Cesarean sections when speed is critical and the survival of the fetus is dependent upon a rapid delivery . . . Such was not the case here.”[2] Dr. Phillips concludes that the delivering doctor “clearly failed to locate, be aware of and protect the infant’s forehead as he wielded the scalpel . . .”

In view of the foregoing, an issue of fact remains as to whether Dr. Abdelmalek properly located the position of the fetus prior to the surgery, and summary judgment is thus not appropriate. Accordingly, having reviewed the parties’ submissions[3], IT IS ORDERED that motion no. M-71677 be denied.

December 4, 2006
New York, New York

Judge of the Court of Claims

  1. [1]Claimant does not dispute defendant’s assertion that the only extant cause of action in this case is for medical malpractice in connection with McKayla Coutard’s delivery.
  2. [2]In his reply affidavit, Dr. Klein disputes Dr. Phillips’ contention that the 1-2% laceration rate is limited to emergency procedures.
  3. [3]The following were reviewed: defendant’s notice of motion with affirmation and affidavit in support with exhibits A through I; claimant’s affirmation in opposition with exhibit 1 affirmation; and defendant’s reply affirmation and affidavit with exhibit A.