New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2008-016-034, Claim No. 107852


Claimant failed to prove that, given the circumstances, the use of an internal fetal monitor during the delivery of a child which caused a wound on the newborn’s scalp, was departure from accepted medical practice.

Case Information

ORVILLE KELLY, Individually, and as father and natural guardian of CONROY KELLY, an Infant
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:
Gamiel A. Ramson, Esq.
Defendant’s attorney:
Andrew Cuomo, Attorney Generalby: Mary Y. J. Kim, AAG
Third-party defendant’s attorney:

Signature date:
July 15, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the decision following the trial of the claim of Orville Kelly brought on behalf of his son Conroy for an injury that was allegedly caused by the attachment of a fetal monitor to Conroy’s scalp during his delivery on May 16, 2001 at the State University Medical Center in Kings County (“Downstate Hospital”).

According to the baby’s mother, Marcia Grant and claimant Orville Kelly, both of whom testified at trial, Conroy’s scalp had a wound that emitted pus, caused the infant to cry excessively and left a small scar which remains sensitive to the touch. Photographs taken 13 days after Conroy’s birth show a small, but abscess-like sore (cl exhs 4A, 4B and 4C).

Claimants maintain that: i) the hospital used an internal fetal monitor during Conroy’s delivery[1]; (ii) doing so was a departure from accepted medical practice; and iii) such instrument proximately caused the baby’s scalp wound.[2]

Extensively disputed at trial was whether an internal fetal monitor was used in the delivery. For example, an internal monitor is not mentioned in Downstate’s records for the delivery (cl exh 6), but is in the newborn’s pediatric chart (cl exh 5), although defendant maintains that the pediatric references reflect information supplied by Ms. Grant. With that said, it is unnecessary to reach the issue, because even had an internal monitor been used, claimants are unable to prove that such would have been a departure from accepted medical practice. It should be noted that claimants do not argue that the manner in which the device was affixed to Conroy’s scalp was done improperly.
* * *
Each side called to the stand an expert in the field of obstetrics and gynecology. The claimants called Dr. Leonard Roberts; the defendant, Dr. Leonard Benedict.

Claimants’ expert, Dr. Roberts had not delivered a baby since 1993 and said that one of the ways he prepared for this case was a “refreshment of the literature . . . I reviewed three volumes on uterine monitoring, and I reviewed the obstetric and gynecologic clinics of North America on fetal monitoring.” Dr. Roberts lacked a crisp grasp of the record that makes an expert witness helpful to the trier of fact. In some instances, his testimony came across as guarded, if not evasive; consider the following exchange on how much of the record he had reviewed:
Q. Which depositions did you review?

A. I reviewed Mr. Kelly’s deposition and some of Ms. Kelly’s deposition.

Q. Do you mean Marcia Grant? The mother of the baby, right?

A. Yes.
Q. You didn’t review the entire testimony of the mother; is that right?

A. I did not review the entire testimony recently. I reviewed it a year or so ago.
Dr. Roberts stated that he has testified as an expert in about 80 medical malpractice or personal injury cases - - each time on behalf of the plaintiff or claimant. In this case, Roberts signed an affidavit, which included his conclusion that it was a departure from accepted medical practice to not use betadine to prepare the area of the scalp:
There is no indication in the nurse’s notes or otherwise in the defendant’s hospital records that the area in the skull was prepared with betanidine [sic] for the screw top of the electric device for entry into the soft tissues of the head prior to insertion of the scalp monitor, and it was a departure not to have done so.

(def exh E,[3] ¶ 12).

However, on the stand, Dr. Roberts conceded that obstetricians do “not usually” use betadine when they insert an internal fetal monitor.
Defendant’s expert, Dr. Benedict, has been board certified in obstetrics and gynecology since 1981 and was previously licensed to practice medicine in Great Britain. At time of trial, he was an associate professor at New York Medical School and also held a teaching appointment at North Shore University Hospital in Manhasset. Dr. Benedict testified as follows on the use of betadine in connection with internal fetal monitors:
Q. Doctor, what is betadine?

A. Betadine is a yellowish brown antiseptic solution which is used to sterilize an area that you want to work. It can be toxic, and I’ve seen people react to betadine because it can burn.

Q. Doctor, have you ever heard of an obstetrician, using betadine for the purpose of placing an internal fetal heart monitor?

A. Never.

Q. Ever in your career?

A. Never in my career.

Q. Anywhere that you worked?

A. I’ve worked in many hospitals both in Brooklyn and Long Island. Never.
Not only was defendant’s expert convincing as to the betadine, but the effect thereof was to severely undercut the validity of Dr. Roberts’ overall testimony.

Claimants’ doctor asserted that when the fetal monitor was inserted, Conroy’s birth was imminent, and that inasmuch as an internal fetal monitor must be in place for ten minutes to generate an accurate reading, the utilization of this instrument was a departure from accepted medical practice. Later in his testimony, Dr. Roberts seemed less certain on the imminence of Conroy’s birth.

In contrast, Dr. Benedict concluded that the fact that Ms. Grant had had six previous children, was experiencing no complications and that her water had broken did not mean she was imminently about to give birth. Benedict explained, among other things, that the patient had wanted to ambulate and that her cervical dilation was two centimeters, with ten centimeters representing full dilation.

Initially, an obstetrician will use an external fetal monitor placed around the mother, but if the baby’s heartbeat cannot clearly be picked up, then an internal monitor will be inserted. Involved here is the condition of the fetus’ heart; the undisputed testimony was that failing to monitor it could lead to the death or brain damage of the baby. That a procedure is undertaken to ensure that the baby emerges healthy, which may bear the risk of a wound to the baby’s scalp, does not represent medical malpractice. This trier of fact does not accept Dr. Roberts’ view of the matter; I find that there was no departure from accepted medical practice.
In view of the foregoing, claimants have not proved their case and claim no. 107852 is dismissed. The Clerk of the Court is directed to enter judgment accordingly.

July 15, 2008
New York, New York

Judge of the Court of Claims

[1]. Defendant’s exhibit F is a fetal monitor of the kind used in 2001.
[2]. This Court’s Order dated November 29, 2006 struck any part of the claim seeking “cognitive and developmental damages,” and let stand the action for damages “with respect to the scalp wound and any subsequent abscess.”
[3]. Another affidavit signed by Dr. Roberts, dated September 5, 2006, is defendant’s exhibit D; although it was erroneously marked as exhibit E in evidence, it was correctly marked for identification as exhibit D.