NEONATAL BRAIN INJURY

THE DEFENSE PERSPECTIVE

November 19-20, 2009

University of Colorado Denver School of Medicine

Gil Dickinson, Esq.Dickinson Prud’Homme Adams & Ingram, LLP

Denver, Colorado

OverviewOverview

The litigation environment

Elements of Liability in Claims for neonatal brain injury

Educating a jury on the causes and types of brain injury

Communication and informed consent

Lawsuits in ObstetricsLawsuits in Obstetrics

Generally, there will have been a bad outcome

It May take several years to appreciate injuries, and for suit to

be filed

There will be a bad fetal strip

Retrospective in Nature

There will, in retrospect, have

been opportunities to have intervened.

The “choice” not to investigate is portrayed as a

cavalier gamble with the safety of the mother and

fetus

The patient or family will feel they were abandoned at some level

Elements of Liabilityin Negligence Case

Elements of Liabilityin Negligence Case

9:1 ELEMENTS OF LIABILITY

For the plaintiff to recover from the defendant on her claim of negligence, you must find that all of the following have been proved by a preponderance of the evidence:

1. The plaintiff had (injuries) (damages) (losses);

2. The defendant was negligent; and

3. The defendant’s negligence was a cause of the plaintiff’s (injuries) (damages) (losses).

If you find that any one or more of these statements has not been proved, then your verdict must be for the defendant.

On the other hand, if you find that all of these statements have been proved, then your verdict must be for the plaintiff.

The Plaintiff Must Show

1. LIABILITY- (BREACH OF STANDARD OF CARE)

2. CAUSATION

3. DAMAGES/INJURIES

FAILURE TO EXERCISE THE DEGREE OF CARE AND SKILL THAT A

REASONABLY PRUDENT PROFESSIONAL WITH SIMILAR

TRAINING AND EXPERIENCE WOULD EXERCISE UNDER THE SAME OR

SIMILARCIRCUMSTANCES

PROFESSIONAL NEGLIGENCE:BREACH OF THE STANDARD OF CARE

CAUSATION

9:18 CAUSE WHEN ONLY ONE CAUSE IS ALLEGED — DEFINED

The word “cause” as used in these instructions means an act or failure

to act, which in natural and probable sequence produced the claimed

injury. It is a cause without which the claimed injury would not have

happened.

Colorado Jury Instructions (4th)

BURDEN OF PROOF

Legally: the plaintiff must prove negligence and causation

Practically: defendant must prove to the jury that injury did not occur during birth process

Legal Concepts

“Egg shell” Plaintiff: preexisting vulnerability of fetus prior to birth is not a defense if timely delivery would have prevented the injury.

Aggravation of preexisting condition:

Even in face of proven prenatal injury, if it can be shown there was

additional perinatal injury, it is the defendant’s burden to apportion

degree of injury that preexisted any proven negligence.

JUROR SYMPATHY

THE PRIMARY CHALLENGE FOR THE DEFENSE

Judicial sympathy?

Yes. They are people too.

DIAGNOSTIC TOOLS FOR CAUSATION

What will make sense to a jury?

ACOG CRITERIA

Statistics

77 to 88% of CP in children is unrelated to birth trauma

99.8% of children born after having nonreassuring EFM tracing have no brain injury

Overall incidence of CP has not declined with the advent of EFM

Are Clinical Findings consistent with acute

hypoxia/anoxia?

clinical Presentation at delivery

Apgar ScoreDoes this neonate look like it suffered

asphyxiation in utero?Cord gas

Acidosis is the inevitable response to consequential hypoxia/anoxia.

Do the facts suggest Other Causes for

Decompensation?

Sentinel event in utero :

Is there absence of evidence of acute hypoxia on EFM?

IMAGINGIs the pattern of injury consistent with

global hypoxia at the time of birth?watershed pattern or “acute profound”

pattern? Evidence of injury at earlier stage of

development? (i.e. periventricular leukomalacia)

Stroke? (isolated injury) infectious process? (varied) Genetic disorder? (structural abn?)

WATERSHED PATTERN OF INJURY

Watershed Areas

Watershed in a1 year-old

Hypoxic-ischemic injury to basal ganglia and thalamus

Periventricular Leukomalacia in a 7 mos.

old

MIDDLE CEREBRAL ARTERY INFARCTION

INFECTION (ABSCESS)

Placental pathology

Another source of information about potential prenatal

insults

Growth abnormalitiesOld abruptionChronic infection

Text resources

Barkovich: Pediatric Neuroradiology

Volpe, JJ: Neurology of the Newborn

Pomerantz: Interpreting Cord Blood Gases

Fannarof & Martin’s Neonatology & Perinatal Medicine

Benirschke - Pathology of the Human Placenta

ACOG: Neonatal Encephalopathy and Cerebral Palsy

Failure to Obtain Proper Consent May Constitute Battery

Intentional and wrongful physical contact with a person without his or her consent that entails some injury

or offensive touching

Black’s Law Dictionary (6th ED.)

Failure to Obtain Informed Consent for a Medical Procedure

Patient must be informed to a degree that she is able to make an educated decision about a

particular course of treatment

Areas of VulnerabilityC-Section

VBAC

Operative vaginal delivery

Any Invasive Procedure

Documentation of treatment refusal should include information that was provided to patient

Failure to Inform Family

Try to keep the patient and family as fully informed as possible during the

care.

When things go bad:

It is OK to express sympathy and to apologize to patients and families

Such expressions are, in many states and in Colorado, statutorily protected from admission as

evidence of negligence at trial

Colorado Apology Law C.R.S. 13-25-135

(“I’m Sorry” Statute)

1) Statement must be made by a healthcare provider*

2) Must be made to the patient or a relative ** or representative

3) Only applies to “unanticipated outcomes of medical care.” ***

* Or employee of provider** Includes any person who has a “family-type” relationship with a

victim.*** Does not apply to other negligent personal injury actions

What is Protected?

Any and All:

Statements - Affirmations - Gestures -

Conduct Expressing

apology

faultsympathycommiserationcondolencecompassion

general sense of benevolence

Our jury system

Why it works