Medical Legal Issues in Obstetrics Practice
This presentation is the property of its rightful owner.
Sponsored Links
1 / 36

NEONATAL BRAIN INJURY THE DEFENSE PERSPECTIVE November 19-20, 2009 University of Colorado Denver School of Medicine Gil Dickinson, Esq. PowerPoint PPT Presentation


  • 93 Views
  • Uploaded on
  • Presentation posted in: General

Medical Legal Issues in Obstetrics Practice. 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. Overview. The litigation environment

Download Presentation

NEONATAL BRAIN INJURY THE DEFENSE PERSPECTIVE November 19-20, 2009 University of Colorado Denver School of Medicine Gil Dickinson, Esq.

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Neonatal brain injury the defense perspective november 19 20 2009 university of colorado denver school of medicine gil dickinson esq

Medical Legal Issues in Obstetrics Practice

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


Overview

Overview

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 obstetrics

Lawsuits in Obstetrics

Generally, there will have been a bad outcome

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


Neonatal brain injury the defense perspective november 19 20 2009 university of colorado denver school of medicine gil dickinson esq

There will be a bad fetal strip


Retrospective in nature

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


Neonatal brain injury the defense perspective november 19 20 2009 university of colorado denver school of medicine gil dickinson esq

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


Elements of liability in 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

The Plaintiff Must Show

  • LIABILITY- (BREACH OF STANDARD OF CARE)

  • CAUSATION

  • DAMAGES/INJURIES


Neonatal brain injury the defense perspective november 19 20 2009 university of colorado denver school of medicine gil dickinson esq

PROFESSIONAL NEGLIGENCE:

BREACH OF THE STANDARD OF CARE

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 SIMILAR

CIRCUMSTANCES


Causation

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

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

Legal Concepts

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


Neonatal brain injury the defense perspective november 19 20 2009 university of colorado denver school of medicine gil dickinson esq

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

JUROR SYMPATHY

THE PRIMARY CHALLENGE FOR THE DEFENSE


Judicial sympathy

Judicial sympathy?

Yes. They are people too.


Neonatal brain injury the defense perspective november 19 20 2009 university of colorado denver school of medicine gil dickinson esq

DIAGNOSTIC TOOLS FOR CAUSATION

What will make sense to a jury?

ACOG CRITERIA


Statistics

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

Are Clinical Findings consistent with acute hypoxia/anoxia?

clinical Presentation at delivery

Apgar Score

Does 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

Do the facts suggest Other Causes for Decompensation?

Sentinel event in utero:

Is there absence of evidence of acute hypoxia on EFM?


Imaging

IMAGING

Is 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. periventricularleukomalacia)

  • Stroke? (isolated injury)

  • infectious process? (varied)

  • Genetic disorder? (structural abn?)


Watershed pattern of injury

WATERSHED PATTERN OF INJURY


Watershed areas

Watershed Areas


Watershed in a1 year old

Watershed in a1 year-old


Hypoxic ischemic injury to basal ganglia and thalamus

Hypoxic-ischemic injury to basal ganglia and thalamus


Periventricular leukomalacia in a 7 mos old

Periventricular Leukomalacia in a 7 mos. old


Middle cerebral artery infarction

MIDDLE CEREBRAL ARTERY INFARCTION


Infection abscess

INFECTION (ABSCESS)


Placental pathology

Placental pathology

Another source of information about potential prenatal insults

  • Growth abnormalities

  • Old abruption

  • Chronic infection


Text resources

Text resources

Barkovich: Pediatric Neuroradiology

Volpe, JJ: Neurology of the Newborn

Pomerantz: Interpreting Cord Blood Gases

Fannarof & Martin’sNeonatology & Perinatal Medicine

Benirschke - Pathology of the Human Placenta

ACOG: Neonatal Encephalopathy and Cerebral Palsy


Failure to obtain proper consent may constitute battery

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 (6thED.)


Failure to obtain informed consent for a medical procedure

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 vulnerability

C-Section

VBAC

Operative vaginal delivery

Any Invasive Procedure

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

Areas of Vulnerability


Failure to inform family

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

Colorado Apology Law C.R.S. 13-25-135(“I’m Sorry” Statute)

  • Statement must be made by a healthcare provider*

  • Must be made to the patient or a relative ** or representative

  • 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 - ConductExpressing

apology

fault

sympathy

commiseration

condolence

compassion

general sense of benevolence

What is Protected?Any and All:


Our jury system

Our jury system

Why it works


  • Login