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


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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

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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



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



Elements of liability in negligence case
Elements of Liability levelin 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 level

  • LIABILITY- (BREACH OF STANDARD OF CARE)

  • CAUSATION

  • DAMAGES/INJURIES


PROFESSIONAL NEGLIGENCE: level

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 level

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 level

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 level

“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 level:

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 level

THE PRIMARY CHALLENGE FOR THE DEFENSE


Judicial sympathy
Judicial sympathy? level

Yes. They are people too.


DIAGNOSTIC TOOLS FOR CAUSATION level

What will make sense to a jury?

ACOG CRITERIA


Statistics
Statistics level

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 levelFindings 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? level

Sentinel event in utero:

Is there absence of evidence of acute hypoxia on EFM?


Imaging
IMAGING level

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?)








Infection abscess
INFECTION level(ABSCESS)


Placental pathology
Placental pathology level

Another source of information about potential prenatal insults

  • Growth abnormalities

  • Old abruption

  • Chronic infection


Text resources
Text resources level

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 level

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 level

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 level

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 level

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 levelC.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 - Conduct levelExpressing

apology

fault

sympathy

commiseration

condolence

compassion

general sense of benevolence

What is Protected?Any and All:


Our jury system
Our jury system level

Why it works


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