NEONATAL BRAIN INJURY THE DEFENSE PERSPECTIVE November 19-20, 2009 University of Colorado Denver...
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Transcript of NEONATAL BRAIN INJURY THE DEFENSE PERSPECTIVE November 19-20, 2009 University of Colorado Denver...
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.
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