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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
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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.)
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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
Continued on Page 6
Birth Injury Case Experts
obstetrician - gynecologist
perinatologist
(maternal - fetal medicine)
labor and delivery (perinatal) nurse
pediatrician
neonatologist
newborn nurse
neonatal nurse practitioner
emergency medicine specialist
anesthesiologist
certified registered nurse
anesthetist (CRNA)
pediatric neurologist
dysmorphologist/geneticist
pediatric infectious diseases
specialist
pediatric hematologist
neuroradiologist
placental pathologist
rehabilitation/physiatrist
developmental pediatrician
various therapists (physical,
occupational, speech)
life care planner
life expectancy expert
(new category)
economist
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