News: Shoulder dystocia occurred during a delivery, whereby the delivery stalled and risked significant injury to the child. The delivering physician attempted to maneuver the child, but failed to do so properly, and instead negligently injured the child. The defendant care providers raised a state law providing immunity for such simple negligence in emergency situations where a patient is not medically stable.

A jury found in favor of the defendant. The plaintiffs appealed the determination, but the appellate court upheld the verdict.

Background: In 2008, a woman experienced complications while giving birth. During delivery, shoulder dystocia occurred, stalling the process. The delivering physician attempted to maneuver the child, but failed to properly manage the shoulder dystocia. Due to the physician’s actions, the child suffered an injury to her brachial plexus nerves.

The child’s parents sued the physician and the medical practice group, alleging the physician was grossly negligent during the delivery, and the practice group was liable as his employer. The defendant physician and employer denied wrongdoing or liability, raising various affirmative defenses. Among the affirmative defenses was an applicable state statute that specifically provides physicians immunity from simple negligence in certain malpractice actions. This statute applies only when the malpractice action involved care in an emergency situation with an immediate threat of death or serious bodily injury to the patient receiving care in an emergency department, in an obstetrical suite, or in a surgical suite. Furthermore, the patient must be medically unstable for the statute to apply. If there is no immediate threat of death or serious bodily injury, the statute’s protections do not apply.

In this case, the defendant physician claimed this was an emergency situation that presented a medically unstable patient at risk of death or serious bodily injury. The plaintiffs argued the statute did not apply since the patient had a pre-existing doctor/patient relationship, and the statute’s language includes different provisions for different circumstances. The plaintiffs sought to eliminate this prospective affirmative defense from the jury’s consideration. The trial court agreed with the defendants and determined the section contained two separate and distinct situations, rather than one single defense.

A jury determined that while the physician did negligently harm the child during the delivery, the negligence occurred while the physician was rendering care in an emergency, during which the child was medically unstable and an immediate threat of death or serious bodily harm was present. The specific statutory affirmative defense applied, and the physician was immune from liability. The plaintiffs appealed, arguing the affirmative defense should not have been applied. The plaintiffs did not dispute the factual findings related to the medical circumstances; they admitted shoulder dystocia was a genuine emergency situation, the child was medically unstable, and the circumstances constituted an imminent risk of death or serious bodily injury.

Instead, the plaintiffs attempted to argue the application of these facts to the law and the specifics of the defense, whether it provided for a single defense or separate defenses. The appellate court agreed with the trial court and determined the different subsections provided in the law described different factual scenarios in which a physician would be protected from liability. The appellate court upheld the defense verdict.

What this means to you: This case presents interesting lessons on the facts and the law, in which the former was largely undisputed, and the latter was heavily disputed. On the facts, the child’s injury caused by the shoulder dystocia was plainly evident, and the defendants did not argue the brachial plexus nerve injury was not caused by the physician’s actions. The injured child and her parents initially argued the physician’s actions constituted “gross negligence,” an even higher measure of negligence that is more egregious than a standard breach of the duty of care. However, upon the presentation of all the documentary evidence and witness testimony, the child and parents conceded gross negligence did not apply. Each side offers insight into how to reasonably and efficiently proceed in medical malpractice litigation. Conceding on issues that clearly have not been met demonstrates reasonability and can foster goodwill with the court or jury.

Here, both sides surprisingly made material concessions by the defendants’ acknowledgment of the patient’s injury and by the patient’s acknowledgment of the defendants’ lack of gross negligence. If either side would have argued, for example, that shoulder dystocia was not a medical emergency, that side certainly would have lost credibility in the eyes of the jury. Shoulder dystocia is a medical emergency that can and does result in brachial plexus injuries, or other significant harm. There are protocols that must be followed to prevent harm to the infant and to expedite delivery, but they can, and often do, result in some sort of injury to the infant’s affected arm. If the physician and the staff are following the prescribed procedures correctly, then they are meeting the applicable standards of care, which ideally results in eliminating or reducing injury to the patient as well as protecting from medical malpractice actions. A physician or care provider might take all the right actions, but injury simply is inescapable.

In this case, a specific state law offers more protection for physicians and care providers under limited circumstances — even if the care provider does not adhere to the applicable standards of care. This state law offers immunity from basic or simple negligence when there is a genuine emergency in an emergency department, in an obstetrical suite, or in a surgical suite; when the patient is not medical stable; and when the patient is at imminent risk of death or serious bodily injury. If all three circumstances are satisfied, a negligent physician or care provider will not be liable for medical malpractice. In this matter, the defendants successfully demonstrated all three of the necessary criteria: the shoulder dystocia represented an emergency situation, the child was not medically stable, and the child was at imminent risk of death or serious bodily injury. Because of this, even though the physician failed to act appropriately, the physician could not be held liable as a matter of law.

Lessons from this case on the law may be unique to this state, but it demonstrates the importance of reviewing a physician or care provider’s applicable laws for any such special protections. In a different state, the outcome here could have been dramatically different: The physician was negligent and the patient was injured, which could have resulted in a jury awarding millions of dollars for lifelong injuries requiring ongoing medical care. But here, the negligent physician was protected by the state law. Such state-specific protections can be extremely powerful defense tools, eliminating liability altogether (as here), or reducing the extent of liability (by placing a maximum on how much money an injured patient can recover in a medical malpractice action). Care providers should work closely with counsel to understand the nature and scope of any such state-specific protections.


  • Decided Oct. 6, 2021, in the Court of Appeals of South Carolina, Case Number 2017-002299.