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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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
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
Generally, there will have been a bad outcome
It May take several years to appreciate injuries, and for suit to be filed
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
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.
PROFESSIONAL NEGLIGENCE: level
BREACH OF THE STANDARD OF CARE
FAILURE TO EXERCISE THE DEGREE OF CARE AND SKILL THAT A
PROFESSIONAL WITH SIMILAR
TRAINING AND EXPERIENCE WOULD
EXERCISE UNDER THE SAME OR SIMILAR
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)
Legally: the plaintiff must prove negligence and causation
Practically: defendant must prove to the jury that injury did not occur during birth process
“Egg shell” Plaintiff: preexisting vulnerability of fetus prior to birth is not a defense if timely delivery would have prevented the injury.
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.
THE PRIMARY CHALLENGE FOR THE DEFENSE
Yes. They are people too.
What will make sense to a jury?
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
clinical Presentation at delivery
Does this neonate look like it suffered asphyxiation in utero?
Acidosis is the inevitable response to consequential hypoxia/anoxia.
Sentinel event in utero:
Is there absence of evidence of acute hypoxia on EFM?
Is the pattern of injury consistent with global hypoxia at the time of birth?
watershed pattern or “acute profound” pattern?
Another source of information about potential prenatal insults
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
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.)
Patient must be informed to a degree that she is able to make an educated decision about a particular course of treatment
Operative vaginal delivery
Any Invasive Procedure
Documentation of treatment refusal should include information that was provided to patientAreas of Vulnerability
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
* 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
Statements - Affirmations - Gestures - Conduct levelExpressing
general sense of benevolenceWhat is Protected?Any and All:
Why it works