Every year a number of newborns, small but significant in absolute terms, suffer avoidable brain injury during labour and delivery caused by poor obstetrical care.
The losses are serious, with many suffering profound disability from cerebral palsy. Many have winnable cases, yet few are pursued. More is needed to overcome the medical and legal obstacles to compensation for these children.
Proving liability poses significant hurdles to lawyers and experts, with the real potential to miss meritorious claims. Some lawyers may be discouraged by the sheer complexity and expense. Knowledgeable and willing experts are difficult to find. The required level of sophistication for both the lawyer and the expert is substantial.
In every case, the lawyer must turn to experienced medical experts to prove breaches of the standard of care and causation. To varying degrees, those experts will rely on what is considered by some as “authoritative” medical literature or guidelines. Unfortunately, some of the referenced literature and guidelines are misleading, flawed and plagued by fallacious reasoning. For example, many experts relied on causation guidelines published by the American College of Obstetricians and Gynecologists (ACOG) in 2003. Unfortunately, ACOG didn’t revise those inaccurate guidelines until 2014, but by then many cases were abandoned or lost based on the 2003 guideline. The new guideline has essentially acknowledged some of these shortcomings but very few obstetricians and lawyers are familiar with this.
Even the new guidelines are flawed. We are now running into issues with respect to the effect of intrauterine infection on the health of the newborn. There is literature suggesting a causal connection between infection and newborn brain injury when some physicians argue there is only a correlation, but that causation cannot be proved. This is the fallacy of correlation vs causation.
Unless the lawyer recognizes the pitfalls, some valid cases will not be pursued.
Proving a breach of the standard of care during labour and delivery depends o whether there was clinical evidence that called for some other management of care than that opted for.
Read full article as it originally appeared on April 29, 2016, issue of The Lawyers Weekly: Birth Trauma Litigation Complex, Controversial
For more information about birth trauma, please contact birth injury lawyer Richard Halpern.