Birth Trauma Litigation Complex, Controversial

The Lawyers Weekly | April 29, 2016

Posted May 13, 2016
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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.

Event 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 on whether there was clinical evidence that called for some other management of care than that opted for.

Three questions must be assessed:

  • First, was there anything about maternal needs that had to be addressed that was not;
  • Second, was the evidence of fetal well-being properly evaluated and responded to; and,
  • Third, where vaginal delivery was anticipated, was it reasonably safe to do so.

A thorough understanding of how fetal and maternal well-being is assessed in labour is needed to properly answer these questions. Unfortunately, some of the available literature and guidelines can distract
experts and lawyers from properly addressing these questions.

There are many examples of standard of care problems in the medical literature. One is concerned with the purposes and interpretation of fetal heart rate data as a measure of fetal well-being.Another is concerned with how one defines abnormal uterine activity and its effect on the fetus. Few experts have done a critical analysis of the publications they use in clinical practice and may not appreciate how they apply to the case under consideration. Lawyers must develop a sophisticated understanding of these issues so the right questions can be put to the experts and their views critically scrutinized. Importantly, many assertions in obstetrical publications must not be accepted at face value. Some of the literature is intended, at least in part, to resist litigation.

Causation is even more controversial in birth injury cases. The time of fetal injury must be shown to have occurred after the breach of the standard of care. There is no precise method of proving that injury occurred in utero, and therefore it must be proved by inference. The distractions in the medical literature come from a number of different sources. Foremost is the assertion that the vast majority of birth injury is caused by matters that have nothing to do with labour and delivery. Implicated in these other causes are infection, genetic causes, metabolic causes, maternal illness and others.

A large number of variables affect causation. Antenatal data, labour and delivery data and newborn data will all impact on diagnosing the cause for newborn neurologic injury. Keep in mind that no single variable determines or refutes diagnosis. The ultimate conclusion must be made by applying the differential diagnosis — determining the most likely cause from a list of potential causes.

For lawyers acting for these children, it is important not to be distracted by the plethora of literature pointing to other causes. Injury can indeed occur during labour, and there are reliable indicators that will implicate labour events as the cause for injury. The causal algorithm must always start with imaging of the newborn brain. There are certain patterns of brain injury that help establish timing of injury. More importantly, this imaging helps rule out causes other than labour and delivery events.

As a result of the complex and controversial issues surrounding birth trauma litigation, teasing out the meritorious cases requires lawyers putting their experts to the test. The highly technical nature of these cases requires a high level of consultation between the expert and the lawyer to ensure that a careful and well-informed analysis has been performed. These children, and their parents, are entitled to know what happened and, where preventable, hold those responsible to account. Exposing the flawed obstetrical literature will help to reduce the number of adverse outcomes. That should be the only objective of the medical literature.

Read full article as it originally appeared on April 29, 2016, issue of The Lawyers Weekly: Birth Trauma Litigation Complex, Controversial

If you have questions, please contact birth injury lawyer Richard Halpern at 416-868-3215 or by EMAIL.

Richard Halpern is a partner at Thomson Rogers acting for injured people in medical negligence cases, with a special focus on infants injured at or around the time of birth.
Birth trauma litigation complex, controversial by personal injury lawyer Richard Halpern

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