On November 12, 2011, Cinthia Arcos delivered a healthy baby at Forest Hills Hospital. Her obstetrician gynecologist, Yehuda Bar-Zvi, M.D., delivered the baby utilizing vacuum extraction.

During the delivery, Ms. Arcos suffered a third degree laceration, which means that the laceration involved the anal sphincter. Dr. Bar-Zvi performed a repair and she was discharged from the hospital two days later. Ultimately, though, it was determined that Ms. Arcos, then 27 years old, had a rectovaginal fistula (an abnormal connection between the rectum and the vagina).

In her ensuing medical malpractice lawsuit against her physician and his medical practice, the Queens County jury found that the doctor did not detect and repair a 4th degree laceration in the rectal mucosa after the delivery (and failed to obtain informed consent to the vacuum delivery method) and they  awarded Ms. Arcos pain and suffering damages in the sum of $920,000 ($800,000 past Рfour years, $120,000 future Р12 years). Defendants appealed arguing that the award was excessive; however, in Arcos v. Ben-Zvi (2d Dept. 2020), the award has been affirmed.

Here are the injury details:

  • development of rectovaginal fistula causing plaintiff to pass liquid stool and gas through her vagina
  • two subsequent surgeries: first, seven months after delivery and then four months later for a repeat vaginal repair
  • continuing pain on intercourse and moving bowels, stool leaks due to decreased strength in sphincter and passage of gas through vagina

The defendants argued that plaintiff’s fistula had been successfully repaired, her complaints had been resolved less than a year after her delivery and she did not require any additional treatment.

Plaintiff’s husband was awarded damages for the loss of his spouse’s services and society in the sum of $100,000 (past only). The defendants argued that this award should be set aside in its entirety because the husband did not provide any testimony to support the award (he wasn’t asked any questions about his loss of society and services). There was, though, testimony from Ms. Arcos about how their sexual relationship suffered and the appellate court affirmed this aspect of the award.

Inside Information:

  • At trial, the defendants argued there was no malpractice but afterwards they did not challenge the jury’s findings on liability and causation.
  • After trial, the defendants urged “a reduction of the jury’s award to no more than $700,000 would be appropriate and just compensation.”