Perinatal Injuries: Fighting the Battle of Causation - Continued

defendants will implicate the neonatal care after birth as the cause, and experts for pediatrician-defendants will say that the injury was complete before the botched resuscitation even began. In all these cases the defense amounts to, "I may have screwed up the care, but that is not what caused this child's neurologic problems."

Investigate Carefully Before Filing

Although it is tempting to file cases where negligence is found in the presence of serious injury, and though sometimes an obstetric or pediatric expert may say that a causal relationship exists, extreme care and caution should be taken to assure that causation can be proven persuasively. Plaintiff's counsel must always investigate these cases with an open mind and in a comprehensive way because it may in fact be true that the defendant's negligence did not cause the client's damages. In most cases the records need to be reviewed by an obstetrician, possibly a labor and delivery nurse with a strong background in fetal heart monitoring, a pediatrician or neonatologist on resuscitation and newborn medical issues, and a pediatric neurologist for opinions on diagnosis and etiology/causation. And where, after this review, the decision is made to proceed with the case, it is usually a good idea to have the slides of the placenta reviewed by a placental pathologist, the CT scans and MRI scans reviewed by a neuroradiologist and, in select cases, the laboratory and clinical data reviewed by a pediatric hematologist or infectious diseases specialist. Without question the defense will have the case reviewed by many of these categories of experts, looking for any evidence in favor of

alternative explanations for neurologic injury. Each medical specialty reads its own "tea leaves" on the causation issues. Placental pathologists look at the placenta under a microscope for such things as clinically undiagnosable maternal infection or microscopic meconium particles which might ac- count for asphyxiation in utero or deterioration after birth, as well as a number of other possible explanations for the poor outcome. Neuroradiologists can describe "patterns" of injury in the brain on CT and MRI scans which cannot be accounted for by asphyxia during labor and delivery, suggestive of "other causes." Pediatricians, neonatologists, pediatric neurologists, and pediatric hematologists look at the clinical course, the laboratory studies, and other information to fill out the complete picture, often reaching the conclusion that the baby's clinical course was not compatible with perinatal asphyxia.

ACOG's "Plausible Link" Opinions

An important publication to which experts often refer in support of their causation opinions is published by the American College of Obstetricians and Gynecologists (ACOG) on the subject of "Fetal and Neonatal Neurologic Injury," Committee Opinion #197 (February 1988), which replaced and reiterated what was found in ACOG Committee Opinion #137, (April 1994), which reiterated what was found in ACOG Technical Bulletin #163, (January 1992). These publications set forth criteria which ACOG claims must be present before a "plausible link [between perinatal asphyxia and neurologic injury] can be made." (See sidebar for criteria.)

A legitimate but relatively unconvincing argument can be made that ACOG Technical

Bulletins and Committee Opinions are partly political, full of bias, and written with the defense of medical malpractice cases in mind. Of course, it is always comforting and a confidence builder when all of ACOG's four criteria are met. If not, the issue should be discussed frankly with any

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