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Continued from Page 5
expert who expresses an opinion that a causal relationship exists.
From having had many such conversations over the years, it is
quite clear that there are many cases of cerebral palsy as a result
of mismanaged perinatal asphyxia which do not fulfill all of the
ACOG criteria, and plaintiff's experts (and often defense experts)
will have seen such cases in their own experience. Sometimes the
failed criteria is missing simply due to charting omissions or
irregularities.
Moreover, there is an emerging body of medical literature that
modifies or even contradicts ACOG's position on
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causation. For example, in cases of acute
and severe asphyxia of short duration there is frequently no or
minimal evidence of multi-organ system dysfunction. Pasternak and
Gorey, The Syndrome of Acute Near Total Intrauterine Asphyxia in
the Term Infant, Pediatric Neurology 18:391-398. This phenomenon
is seen in cases of uterine rupture, umbilical cord thrombus, placental
abruption or placental previa. Another recent article described
a group of 14 cases of asphyxial injury coupled with permanent central
nervous system injury (cerebral palsy) where the "other organ system
dysfunction" criterion was not present. Phelan, et al. Intrapartum
Fetal Asphyxia Brain Injury with Absent Multi-organ System Dysfunction, |
The Journal of Maternal-Fetal Medicine, 7:19-22
(1998). In that article the criterion of initial umbilical cord
pH of less than 7.0 was not met in all cases either.
When obstetrical malpractice cases are lost at trial, more often
than not it is because the plaintiff did not adequately establish
the causal relationship between the medical mismanagement and
the cerebral palsy. This is the most fertile area for defense
experts to theorize and speculate about other possible causes.
It is incumbent upon plaintiff's counsel in such cases to anticipate
these issues and employ experts who can effectively address and
rebut alternative theories of causation.
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In three recent medical malpractice cases our firm has discovered
$1,500,000 in undisclosed additional professional liability coverage
through persistent discovery. It simply cannot be emphasized enough
that complete and full discovery, including subpoenas and depositions
if necessary, be conducted to flush out the defendant's coverage.
Sworn interrogatory answers and insurance policy declaration pages
cannot be relied upon to establish a defendant's coverage. This
article analyzes two areas where additional professional liability
coverage may be discovered and gives examples of several cases
where increased coverage was found.
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Obtain Certified Copies Of Insurance Policies
A request for production to a defendant should seek complete certified
copies of each policy of insurance, including all endorsements
and declaration pages, for each policy period from the time of
the incident up through the time the case was filed. Do not settle
for an interrogatory answer, letter or copy of a declaration page
purporting to show the policy limits.
In a recent Missouri case against two obstetrician-employees
of a professional corporation, the initial discovery response
from the defendant stated that the insurance coverage for the
physicians and their corporation was $2,000,000, later amended
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to $3,000,000 at the settlement conference. Later, upon receipt
of certified copies of the policies, an additional endorsement
was discovered which arguably increased the coverage by $800,000,
of which $400,000 was paid to settle the case.
In another obstetrical case arising in Kansas, the discovery
response from the defendant stated the insurance coverage for
the hospital was $500,000. This was supported by production of
a declaration page. Upon obtaining a certified copy of the policy,
however, an endorsement increasing the coverage was discovered.
Kansas hospital policies may provide additional coverage if claims
are brought individually against a professional employee of the
hospital
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