Defendant, a board-certified obstetrician/gynecologist who treated plaintiff during her pregnancy, was unexpectedly late in getting to the hospital to attend to plaintiff's labor and delivery. Nonetheless, he confirmed by telephone that an on-call attending obstetrician and the chief obstetrical resident were caring for the patient pending his arrival. Defendant arrived at the hospital shortly after the birth, when plaintiff was undergoing the repair of a perineal laceration which she had sustained during delivery.

After the delivery, plaintiff began to experience severe urinary incontinence, which has now been resolved, and approximately one year later she began to suffer from fecal incontinence. Approximately two-and-one-half years after giving birth, she underwent surgery to repair a torn sphincter. Plaintiff claimed that she continues to suffer from permanent fecal incontinence caused by nerve damage, and she contended that, with proper management by an experienced obstetrician/gynecologist, the perineum tear could have been avoided. Plaintiff argued that, had defendant been present, his experience might have led him to perform an episiotomy, which would have prevented the perineum tear that extended into her anal sphincter. Instead, she claimed, the delivery was left to an inexperienced resident, who performed a faulty repair of the perineal laceration.

The First Department dismissed the complaint, in Brown v. Bauman, which was decided on July 26, 2007. The court noted that a physician who is unable to care for the patient does not depart from the standard of care so long as the physician arranges to transfer the care of the patient to another well-qualified physician. On this record, the court determined that defendant had established, as a matter of law, his compliance with the requisite standard of care, even though there was some question as to exactly when, or even if, he specifically asked the other physicians to cover for him.