Afraid of getting sued? A plaintiff attorney offers counsel (but no sympathy)
Lawyer Lewis Laska has chronicled medical malpractice settlements and verdicts for more than 25 years. Here, he crosses the aisle to share insights.
IN THIS ARTICLE
OBG MANAGEMENT: What about the dollar amount of jury verdicts? Has that been increasing in recent years?
LASKA: My impression is that any increase in the amount of dollars awarded simply reflects medical inflation—namely, the increase in the cost of medical care. This is especially true when the lawsuit involves future medical care, as in the case of a baby injured by health-care negligence.
Accurate dollar data are very hard to find. According to the NPDB, obstetrics-related cases generated 8.7% of all payments reported in 2006, and also were responsible for the highest median payment: $333,334.1
When discussing dollar data, it is important to avoid the use of averages because a few very high outcomes distort this figure—and most of these amounts are lowered on appeal or settled for much less on appeal. The better figure is the median, which I cited above.
OBG MANAGEMENT: In your book, you make frequent reference to ACOG Technical Bulletin #163, which no longer exists, but which was modified slightly and rearticulated in the 2003 publication, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology, as you also note.4
The 2003 report was authored by both ACOG and the American Academy of Pediatrics (AAP). In a press release issued at the time of publication, ACOG noted that newborn encephalopathy and cerebral palsy (CP) are “associated with significant mortality rates and long-term morbidity and have been central in the assignment of blame in obstetric litigation.”
In the 2003 report, ACOG and the AAP essentially concluded that the majority of newborn brain injury cases do not occur during labor and delivery, but are attributable to events that occur before labor begins.
What do you make of their stance on the matter?
LASKA: First published in 1992, Technical Bulletin #163 set a very high standard for when intrapartum asphyxia could provide a “plausible link” to CP. Criteria included:
- umbilical cord pH <7 (i.e., acidosis)
- an Apgar score of 0 to 3 that persists for more than 5 minutes
- later documentation of neonatal neurologic problems, such as seizures
- dysfunction in any or all of the newborn’s cardiovascular, gastrointestinal, hematologic, pulmonary, or renal systems.
These criteria applied only to term newborns who did not have an obvious, or, at least, diagnosable, congenital anomaly. The actual diagnosis of “the problem” caused by “the incident” was hypoxic-ischemic encephalopathy (HIE).
The main thrust of Technical Bulletin #163 was challenged in the medical literature as early as 1995, by Goodlin, who argued that the practical effect would be that few cases of CP would be judged to be the result of perinatal asphyxia.5 Two other articles by Korst described cases in which it was clear that the newborn had experienced an acute intrapartum event such as uterine rupture or a prolapsed cord, yet only one met the ACOG criteria for HIE. Korst’s later study of 47 newborns found that only 10 met all four criteria.6
The 2003 international consensus statement is similar to Technical Bulletin #163, but actually supports some of the theories in plaintiffs’ recoveries in these cases, mentioning (as #163 does not), a “sudden, rapid and sustained deterioration of the fetal heart rate pattern, usually following the sentinel event, even where the pattern was previously normal.” This statement actually endorses electronic fetal monitoring, which is commonly disparaged in litigation in the United States, despite its use in 80% of labors in this country.
An international consensus statement published in 1999 also requires “early imaging evidence of acute cerebral abnormality.”7 This means that CP can (and must) be confirmed by neuroimaging—another battleground issue in litigation in the United States.
Even your own journal recently asked who or what test can conclusively eliminate intrapartum asphyxia as a medically probable cause of cerebral palsy.8 In reply, the article stated, “The answers are disheartening.” The article went on to explain that “only 14.5% of CP cases are associated with intrapartum asphyxia.” Let’s see. That would mean 14.5% of 6,400 cases of CP—or 928 needlessly brain-damaged infants each year.
My personal view is that the percentage of CP cases caused by an intrapartum event is higher than currently thought.
Why are so many cases settled?
OBG MANAGEMENT: In your book, you note the following:
In 1994, it was reported by American Medical News, the AMA’s weekly newspaper, that of every 100 birth-injury lawsuits filed, 47 were dropped by the plaintiffs or dismissed by the court prior to trial. Of the remaining 53 cases, 40 (three quarters) were settled by monetary payment. That leaves 13 cases. Of these, the doctor won 78%. In other words, plaintiffs won only three of the 13 that went to trial. This means that only 3% of birth injury cases result in a plaintiff‘s verdict.2
