Evaluating Obstetric
Malpractice Cases (Continued from page 15)
failure to diagnose also must be the proxi- mate cause of the injury.26
Thus, if a
timely diagnosis would have made no dif- ference in the outcome, the failure to recognize fetal distress and expedite the delivery may not be actionable. The evi- dence must show that there was a better-than-50-percent chance that the baby would have been born normal or would have survived.
The selection of clinical markers and
the weight given to each variable to de- termine the timing and/or etiology of irreversible brain damage may vary from expert to expert and from specialty to spe- cialty (i.e., obstetrician, pediatrician, neonatologist, pediatric neurologist, pla-
cental pathologist, or pediatric neuroradiologist). Nevertheless, every lawyer who agrees to evaluate a potential birth trauma case must be familiar with the clinical markers that can help to es- tablish the etiology and timing of the events that caused brain damage or death. Some of the clinical markers used to establish a causal relationship between asphyxia and brain damage include: neo- natal hypoxic-ischemic encephalopathy, abnormal fetal heart rate patterns, low Apgar scores, abnormal newborn neuro- logical findings, abnormal blood gas studies, abnormal ultrasound, CT and/or MRI findings, seizures within 24 to 48 hours of birth, increased nucleated red blood cells in the placenta or newborn cir- culation, presence or absence of multi-organ damage at birth, presence or absence of infection and/or sepsis, abnor- mal placental gross or microscopic findings, presence or absence of meco- nium staining, and the need for and extent of resuscitation at birth.
26
Cooper v. Hartman, 31 Md. 259, 533 A.2d 1294 (1987).
The defense will always manage to lo- cate experts who will either testify that the
brain damage was not caused by asphyxia, or that the brain injury could not have been prevented by earlier delivery. An- ticipating and overcoming the causation defenses concerning the timing or etiol- ogy of the child’s irreversible brain damage is a critical component of the lawyers’ trial preparation.27
New concepts, studies,
and theories find their way into the lit- erature on a regular basis. Thus, one must routinely read medical journals and text- books, attend educational meetings, and locate other, more experienced, lawyers to clarify, refine, and expand the list of clini- cal markers that are capable of identifying the timing and etiology of brain injury. Finally, it is imperative that newcomers to the birth trauma litigation arena net- work with other lawyers who are familiar with the defense theories about the etiol- ogy and timing of irreversible brain injury.
27
See generally, Dov Apfel, Placental Pathol- ogy: Challenging the Causation Defenses, Trial Magazine, May, 2000.
16
Trial Reporter
Fall 2000
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