A $12 MILLION DOLLAR COURT CASE ARISES FROM A COMMON INTERVENTION
FACTS OF THE CASE
This medical malpractice action seeks damages for brain injuries sustained
by infant Christopher Andres Peraza as a result of the events surrounding
his birth at Arden Hill Hospital (Orange Medical Center) on May 24, 2003,
particularly, the artificial rupture of the mother’s membranes (A.R.O.M.)
by Dr. DiCostanzo to accelerate the baby’s delivery. Defendant-Respondent
Dr. DiCostanzo is the private obstetrician involved in the pregnancy care,
labor, and delivery.
This case is unusual, in that the plaintiff alleges that this invasive
obstetrical procedure (A.R.O.M.) was performed without her consent and
despite her outright refusal of consent. This is not an “informed consent”
case. The claim is not that the plaintiff was given insufficient
information about the risks, potential complications, or alternatives,
needed to make an informed decision. Rather, plaintiffs contend that
regardless of whatever information that was (or wasn’t) supplied, she
never consented to this invasive procedure – the rupture of her membranes
– at all. The procedure was performed against her wishes, disregarding her
refusal of permission. As such, the quality or quantity of the information she was given, is
The plaintiff (mother) Elsa Peraza, defendant obstetrician Dr. DiCostanzo,
and all three Labor and Delivery Nurses, as well as the plaintiff’s mother
(the infant’s maternal grandmother) and sister, have all been deposed to
completion. Not one witness testified that the mother consented to the
A. The Mother’s Refusal of Consent:
The mother, Elsa Peraza, testified that she wanted a natural labor that
would progress at its own speed. Accordingly, she refused to have her
labor accelerated with chemical stimulants, and refused to have her labor
sped up by artificially rupturing her membranes (“A.R.O.M.”). [R. 39-40,
574, 579, 586]
From the time the mother first arrived at the hospital at about 7:50 p.m.,
until her emergency cesarean section at 1:42 p.m. the next day, three
Labor & Delivery Nurses (Donna Daley, RN, Loretta Colgan, RN, and Cindy
Shannon, RN) cared for Mrs. Peraza, over the course of two nursing shifts.
All three nurses uniformly testified that from the time Mrs. Peraza
arrived until Dr. DiCostanzo artificially ruptured the mother’s membranes
some eighteen hours later, the mother refused consent for A.R.O.M.
(Although the parties disagree as to whether or not the mother relented
and eventually consented to induction or “augmentation” of her labor with
drugs, this appeal is limited to the performance of the artificial rupture
of membranes (A.R.O.M.) to speed up the labor.) The fact that all three
nurses whose care spanned the entire time from admission to A.R.O.M.
uniformly testified to the mother’s refusal of consent to the A.R.O.M., is
important, because it disproves the inference of “acquiescence by conduct”
that underlies the lower court’s Decision and Order [R. 9].
Mrs. Peraza testified that her obstetrician, defendant Dr. Lynne
DiCostanzo, pushed to have this delivery expedited for her own (the
doctor’s) convenience, and the mother reluctantly went to the hospital
because Dr. DiCostanzo was so insistent and bullied her into it:
A. So, I want to be everything okay. [Dr. DiCostanzo said] I will
induce your labor. And I say, no, I don’t want it. I want to wait
for the end, because I want to feeling normal; you know, my
normal contraction and everything. I want everything normal.
And she explained to me how she’s going to induce my labor.
And I say, I don’t want it. But she insist. She insist to me. And
she push it to me, like it — she say, no, this is better day.
I think her daughter or somebody, her son or her daughter born
in May. And she say, oh, so, is going to be like my daughter –
May 24th, or something like that. And I say — I don’t say anything
now; I’m think about by myself – so, I don’t care if her daughter
born on that day. So, only, I’m worrying about how I’m feeling
And she say, I waiting for you 6 o’clock in the Arden Hill
I say, but I’m not ready. You know, I’m not ready with my baby
things and stuff.
Q. Did you tell her you didn’t want to go to the hospital that night?
A. Yeah, I told her. [Peraza EBT, pages 99-100, R. 566-567]
A. And she insist to me to have it – induced labor the same day.
I mean, go to the hospital the same day to induce my labor.
[Peraza EBT, page 104, R, 571]
When she arrived at the hospital, Elsa Peraza reiterated her refusal of
artificial means to speed up her labor, explicitly telling the admitting
nurse (Nurse Daley) that she refused consent to the use of drugs or
rupture of membranes to bring accelerate her labor and delivery. She went
to the hospital, as directed, with the intention of having childbirth on
nature’s schedule, without drug or surgical interventions. Questioned by
Dr. DiCostanzo’s attorney, Mrs. Peraza testified:
Q. And as you’re talking to me now, you told her you didn’t
want to go in for an induction?
A. Yes. I told her, I don’t want it. I say, I don’t want it today.
A. Too early, you know. I know is three weeks early.
Q. Did you tell her you didn’t want it that particular day, or that
you didn’t want it at all?
A. All. I don’t want it at all. … [Plaintiff’s EBT, page 107, R. 574]
Labor and Delivery Nurse Donna Daley admitted Mrs. Peraza to the maternity
unit at about 7:50 p.m., and wrote in the chart that the patient refused
induction of labor and refused the artificial rupture of membranes. The
Intake Note clearly documents that the mother “States does not want
A.R.O.M. or induction.” [R. 16, 431]
At her deposition, Nurse Daley testified that the mother never withdrew
that refusal [R. 28]:
Q. From the time that Elsa first told you she didn’t want an artificial
rupture of membranes until the time you went off shift about 7:00
the following morning, did she ever say to you, I have changed my
mind, I consent to artificial rupture of membranes?
A. No. [Daley EBT, p. 34, R. 18]
Nurse Lauretta Colgan took over Elsa Peraza’s care for the night shift.
During Nurse Colgan’s shift, Dr. DiCostanzo visited the mother in the
hospital at about 10:00 p.m., and had a discussion with Mrs. Peraza in
Nurse Colgan’s presence. Neither Dr. DiCostanzo, Nurse Colgan, nor Mrs.
Peraza testified to the exact words that were exchanged, nor the quantity
or quality of information that was supplied, but the defense contends that
this was an “informed consent” discussion. In any event, even after this
discussion, the mother did not verbalize any retraction of her prior
refusal of an artificial rupture of membranes (A.R.O.M.).
Dr. DiCostanzo did not testify at deposition that the mother consented to
an A.R.O.M., nor supply an affidavit or affirmation or any other
supplemental materials contradicting Elsa Peraza’s explicit and unyielding
refusal of consent for the A.R.O.M.
Nurse Colgan testified to her impression of that conversation – that
although the mother understood the need to deliver the baby, she still did
not want induction or A.R.O.M. Nurse Colgan could not remember the
conversation verbatim, but she recalled the substance:
Q Can you give it to me in substance, if you can’t give it to me
word for word?
A. I would say that she understood the need for the
induction. Did she want it, no. Did she understand the need
for it, yes. [Colgan EBT, p. 33-34, R. 891-892]
Nurse Colgan further testified that the patient refused all chemical
stimulation to accelerate of her labor, and refused A.R.O.M.:
Q Where did you get this information that she did not want A.R.O.M.?
A It says [in the hospital chart], ‘states does not’. Elsa [said that].
Q She said it to you?
Q You said before that she didn’t want any chemicals?
A Right . . . She didn’t want induction of labor. Whether you
want to call it prostaglandin or whatever, a chemical stimulation
or, you know. Yes, Elsa said that to me. [Nurse Colgan’s EBT, P.
21-22. R. 19, 880-881]
* * * * *
Q From the time Elsa first told you she didn’t want an artificial
rupture of membranes, to the time you went off shift about 7:00
the following morning, did she ever state to you that she changed
mind, that she does want chemical stimulation or that she does
want artificial rupture of membranes?
A Stated, no. [Colgan EBT, p. 22, R. 881]
However, despite the complete absence of verbalization, Nurse Colgan
testified that she “absolutely” believed that Mrs. Peraza acquiesced to
the Cervidil induction by her conduct. [R. 881] Mrs. Peraza stayed in the
hospital overnight, and changed from street clothes to a hospital gown. A
change of clothes is necessary to insert the Cervidil vaginal suppository
(to accelerate the labor) [Colgan EBT, p. 32-33, R. 891-892], but there is
no testimony from anyone that Mrs. Peraza changed her clothes for that
purpose, rather than simply to avoid going to bed in street clothes. The
defense contends that the change of clothes implies the mother consented
to induction, and the Order Appealed From adopted the defense’s
conclusion, holding that “Ms. Colgan’s testimony raises a triable issue of
fact as to whether plaintiff acquiesced by conduct to her treatment after
her initial admission to the hospital.” [R. 9].
Although Nurse Colgan surmised that the change of clothes evidenced
unspoken consent to induction, she did not testify that it evidenced
consent to the A.R.O.M. that followed some fifteen hours later. To be
absolutely sure there was no misunderstanding, Nurse Colgan was asked
Q. But she never said I want it [Cervidil] and she never retracted
her prior statement – –
A. Not verbally.
Q. – – that she didn’t?
A. Not verbally. [Colgan EBT, p. 33, R. 892]
* * * * *
Q. From the time Elsa first told you she didn’t want an artificial
rupture of membranes, to the time you went off shift at 7:00 the
following morning, did she ever say to you I have changed my
mind, I consent to an artificial rupture of membranes?
A. No. [Colgan EBT, p. 34, R. 893]
Nurse Colgan was asked about the routine end-of-shift “report” she gave to
the succeeding nursing shift, and she re-confirmed the mother’s refusal of
consent to A.R.O.M. a third time:
Q, If I told you that yesterday, Nurse Shannon gave testimony in
this case and said that you told her Elsa Peraza did not want an
artificial rupture of membranes [at the end of your nursing shift,
when you gave your “report, “], would you have any reason to
disagree with that?
A. No. [Colgan EBT, p. 37, R. 896]
Labor Nurse Cindy Shannon took over at 7:00 o’clock the next morning when
Lauretta Colgan’ shift ended and she went home.
Nurse Shannon testified that when she came on duty, she was informed by
Lauretta Colgan of the patient’s refusal of consent to A.R.O.M., and there
was “no question” that the patient refused artificial rupture of
membranes. [Shannon EBT, p. 31, R. 956] Nurse Shannon testified:
Q Were you aware of this note [stating that patient refused
induction and A.R.O.M.] when you took on the patient [at the
beginning of your shift]?
A Yes, I was.
Q How did you become aware of it?
A Loretta [Colgan, the prior shift nurse, told me when she
went off shift]. [Shannon EBT, p. 30, R. 18, 955.]
Therefore, according to all three nurses that throughout the night shift
and continuing into the following morning, the mother never retracted her
refusal of consent for A.R.O.M.. Even assuming that the mother reluctantly
acquiesced to induction (which is in dispute), there is nothing at all
suggesting she acquiesced to A.R.O.M. Every witness testified Mrs. Peraza
was steadfast in her refusal of consent to A.R.O.M.
This is of great importance, because it directly refutes the inference the
defense drew from Nurse Colgan’s testimony, that the mother acquiesced by
conduct. Nurse Colgan herself testified to the mother’s unwavering refusal
of consent to the A.R.O.M. right to the time she ended her shift Dr.
DiCostanzo never testified that the mother consented to an A.R.O.M.,
either. No one did.
B. Dr. DiCostanzo Proceeded Without Consent:
When Mrs. Peraza was admitted, her obstetrician, Dr. DiCostanzo, had not
yet arrived at the hospital. Notwithstanding the mother’s
clearly-documented refusal of induction and A.R.O.M., Dr. DiCostanzo
issued a telephone order that a chemical labor-inducing/accelerating drug
(Cervidil) be ready for administration as soon as she arrived at the
hospital. Dr. DiCostanzo inserted the Cervidil vaginal suppository
immediately on her arrival. [Nurse Colgan’s EBT, R. 269, 887-889] Doing so
was in direct violation of the mother’s explicit, documented refusal.
Thereafter, when the labor still did not progress fast enough to suit Dr.
DiCostanzo, a second labor-accelerating drug, Pitocin, was added. [R. 287]
Later, when the two chemical stimulants still did not speed things up as
fast as desired by Dr. DiCostanzo, she undertook a third, fateful
procedure to expedite the delivery: Dr. DiCostanzo performed an elective
artificial rupture of membranes (an A.R.O.M.). This invasive procedure
consists of inserting a blade or hook, up and into the birth canal and
piercing the amniotic membrane that contains the baby, the umbilical cord,
and the amniotic fluid. [DiCostanzo EBT, p. 159, R.830]
Elsa Peraza’s flat-out refusal of this A.R.O.M. procedure is clearly
documented in the Nurses’ Admitting Note [R. 16, 431] and was testified to
by all three labor nurses, who agreed that the mother’s refusal of the
A.R.O.M. was never withdrawn or modified. Dr. DiCostanzo simply pressed
on, disregarding her patient’s documented refusal of consent.
Labor Nurse Shannon was an eyewitness to the A.R.O.M. and the delivery.
Nurse Shannon testified that Dr. DiCostanzo ruptured the patient’s
membranes artificially although she specifically told the doctor that the
patient refused consent just before the membranes were ruptured:
Q Was there any conversation between Dr. DiCostanzo and Elsa Peraza that
you observed or overheard at about the time the membranes were ruptured up
to the time of the rupture itself?
A I made Dr. DiCostanzo aware that she didn’t want ruptured
Q That the patient didn’t want it?
A That the patient didn’t. And the conversation I can’t recall her
discussing it with Elsa.
* * *
Q Did she go ahead and rupture the membranes anyway?
A. Yes, she did.
Q In your presence?
A Yes, she did. [Nurse Shannon’s EBT, p. 43-44, R. 20-21, 968-969]
(4) Nurse Shannon testified:
Q. Is cord prolapse something which was recognized in the labor and
delivery service as being a real obstetrical emergency?
A. Because the head would come down and press on to the cord and
cut off the oxygen supply to the baby….. [Shannon EBT, page 53, R.21,
C. The A.R.O.M. Caused a Catastrophic Cord Prolapse:
Immediately after the membranes were artificially ruptured, a loop of the
umbilical cord popped out of the birth canal. This condition, known as a
“prolapsed cord” or “cord prolapse,” is an obstetrical catastrophe
requiring an emergency cesarean section.
Cord prolapse is an obstetrical emergency because the baby’s head is still
undelivered, and the head pinches off the umbilical cord (from which the
unborn baby gets its oxygen from the mother) in the confined, tight space
within the birth canal. Before the membranes are ruptured, the intact
membranes hold the cord back, preventing prolapse. A frank cord prolapse,
as herein, can only happen after the membranes are ruptured. [21-22, 32,
Because the prolapsed cord is pinched shut in the birth canal, the baby
cannot get oxygen and asphyxiates within the womb. That is exactly what
happened here. [R.22, 31, 978, 1939]
Despite an emergency cesarean section and emergency resuscitation 32
minutes after the A.R.O.M. produced the cord prolapse, the baby was born
with severely depressed Apgar scores of 1 one minute after birth, 1 five
minutes after birth, and only 5 at 10 minutes after birth. (10 would be a
perfect Apgar score). [R. 22, 328, 1002]
The newborn was rushed to Westchester County Medical Center, where he
remained in the Neonatal I.C.U. for several weeks. Now, at approximately
age 2-1/2 years, he shows the severe brain injury from these terrible
events. [R. 22, 121-123]
Defendant Dr. DiCostanzo reluctantly admitted that prolapsed cord “very
likely” caused the precipitous drop in the fetal heart rate. She
Q. Is it your testimony that you are not sure if this dramatic drop in the
heart rate eight minutes after the prolapse is related to the prolapse? Is
that your testimony?
A. My testimony is that I don’t think anyone can say that it ‘absolutely’
is caused by the prolapse.
Q. Is it very, very likely that it was caused by the prolapse?
A. Very likely. [DiCostanzo deposition, page 172, R. 22, 844]
Thus, even though the defendant tried to evade the question by couching
testimony in absolute terms, when pushed, she was forced to concede that
this was “very likely.” Since the law only requires that expert testimony
be given with reasonable certainty, and not absolute certainty, causal
connection is established through the defendant’s own testimony.
Plaintiffs’ expert, board-certified obstetrician Dr. Jeffrey Soffer,
confirmed the causal connection:
It is also my opinion within a reasonable degree of obstetrical certainty,
that there is absolutely no question that the A.R.O.M. in this case
directly caused the cord prolapse, which caused a deprivation of oxygen to
the infant, and the infant’s resultant brain damage. [R. 31]
In what may have been evidentiary overkill, plaintiffs also submitted an
excerpt from the Gabbe, Niebyl, and Simpson’s authoritative textbook,
Obstetrics – Normal and Problem Pregnancies, (2002), “Intrapartum
Complications,” which instructs that:
Cord Prolapse: Cord prolapse refers to passage of the umbilical cord into
the vagina ahead of the presenting part following rupture of the fetal
membranes. … Prevention of iatrogenic cord prolapse can be achieved
by performing amniotomy [rupturing the membranes] with fundal
pressure and only when the vertex [the top of the baby’s head] is well
applied to the cervix. [Emphasis ours] [R. 1038-1039]
This published statement, made without hedging or qualifications, tells us
both that iatrogenic cord prolapse is preventable (“prevention can be
achieved”) through proper technique, and that the cord prolapse herein
could not possibly have happened but for Dr. DiCostanzo’s unconsented-to
A.R.O.M. (“Cord prolapse [happens] following rupture of the fetal
membranes.”) [R. 1039]
Mark won $1,500 per month, every month, for the rest of the child’s life.
“In addition, when Christopher turns age 18, the structure will
additionally pay a “college fund” of $50,000.00 per year ($200,000.00
total) to fund his higher education. In addition, the structure will pay
our further lump sum cash payments of
$ 60,000 on 05/24/2028
$ 80,000 on 05/24/2033
$100,000 on 05/24/2038
$150,000 on 05/24/2043
In all, it is anticipated that over a lifetime of 75 years, this structure
will pay Christopher Andres the total sum of $12,680,842.56.”