Microsoft word - birth trauma newsletter.intake questions in brain damaged infant case _final_.doc

Preparing for the Usual Defenses
in a Brain Damaged Infant Case
By Nursine S. Jackson, M.S.N. and Mark Bower, Esq. Nursine S. Jackson, MSN, RN
Mark R. Bower, Esq.
Law Offices of Mark R. Bower, PC
You do not want to learn for the first time during her deposition, that your Plaintiff Mother had a seizure disorder as a child, or has a mentally retarded sibling, or has been repeatedly investigated by family services. During the intake interview and early in case development, the plaintiff’s attorney needs to perform a thoughtful and thorough intake examination, (i.e., really get to know his clients) from which he can develop his offensive, and weigh the threats of those inevitable weaknesses inhabiting every case. It is essential that you ask hard questions of your client, even embarrassing or potentially offensive questions, so you can prepare and de-fuse problems before the defense detonates them in your face. Being forewarned may not only allow you to be forearmed, but may also help you decide early in the investment process, to pass on the case because of overwhelming obstacles to developing a viable case. The defense war horses routinely recycle old themes for which the plaintiff’s attorney can be forearmed. The common themes are as follows: 1. BAD MOM: The mom’s behaviors/addictions harmed her fetus as it was 2. BAD BABY: The infant’s problems are due to a genetic or fetal developmental 3. BLIGHTED PREGNANCY: An antepartum event (e.g., infection/disorder/drug use/ chemical exposure/injury during pregnancy/placental anomaly) caused the 4. EMERGENCY: It was an emergency situation, in which the obstetrician was obligated to employ special measures to save the mother and infant; 5. POISONED JURY: The defense will built on inherent prejudices of the jury using cultural, political, behavioral demographics of the mother and/or jury; 6. BAD CHOICES: The mother made bad choices in spite of being fully informed of the risks (e.g., vaginal delivery after cesarean section, labor of convenience using induction of labor without medical indication, etc.); 7. GOD’S WILL: ACOG says it was within the standard of care, so injuries that occurred had to have been “God’s will,” not a result of negligence; 8. DEFENSIVE ATTRIBUTION: The defense will build on human nature using the psychological ploy of defensive attribution, building on the jury’s tendency to “blame the patient” so they don’t have to acknowledge that they are at risk for suffering the same fate through no fault of their own. Preparing for the Defenses:
1. The “Bad Mom Defense”: Be forearmed for the “Bad Mom defense” with information about her past social and medical history. Investigate the following, taking a general history not limited to the target pregnancy: a) Her cigarette, drug & alcohol history b) Her medical history and compliance with medication regimens generally and specifically during pregnancy, especially the management of c) Medications used prior to and during pregnancy (was she taken off potentially teratogenic medications during pregnancy and if so, how was her medical problem managed during the pregnancy) d) Mental health issues resulting in the need for medications or treatment e) Nutrition issues that may affect the health of the developing fetus, such as eating disorders, hyperemesis gravidarum, malabsorption disorders, past f) Criminal charges and convictions, including family services investigations g) Number of pregnancies and paternity of each child i) Height and weight, prior to and at the end of the pregnancy 2. The “Bad Baby Defense”: If the baby’s problems can be attributed to a non- iatrogenic disorder that is known to cause neurologic injury, it may be difficult to impossible to get a jury, or even an expert to accept a causal connection to birth injury, regardless of outrageousness of the negligence. For example, if the fetus has microencephaly and suffered a serious anoxic insult at birth, the cause of the child’s mental retardation will be confounded. Look at the baby, at the shape of his head and the set of his ears, especially so if other known anomalies are present. Ask the mother what she knows about genetic or metabolic testing that has been done. In some cases, it may be worthwhile for the plaintiff’s attorney to pro-actively initiate a genetic work-up, to preemptively rule out a genetic explanation for the child’s problems. If you learn that the baby was diagnosed with a genetic or metabolic problem, you may want to assess further to determine if there should be a different focus to your investigation, e.g., should the OB have been on the alert that such a disorder may exist (because of genetic markers in the parents, ethnic predisposition or familial tendency, etc.), so that perhaps negligent treatment was the lack of timely testing for the disorder. A less desirable argument to make to a jury is that termination was warranted, and a more palatable argument for most jury pools is that genetic testing and /or modification of pre-pregnancy risk factors could have averted, or at least, mitigated, this tragic birth. In preparation for these issues, assess for evidence of familial problems with your intake 3. The “Blighted Pregnancy Defense”: Your intake questions should include a review of events that could possibly have interrupted fetal neurologic development, especially in the first trimester. Infections, drugs, possible toxic exposures (vocational or avocational), trauma to the developing fetus and/or mother, knowledge of placental abnormalities that may have caused reduced blood supply to the fetus (abruption, previa, twin-to-twin transfusions), toxemia, maternal ill-health, etc. You should ask the informant questions about laboratory studies, glycemic monitoring, nonstress and ultrasound and other diagnostic studies performed during the pregnancy, and any concerns that her obstetrician shared with her, such as impaired fetal growth or 4. The “We Did What We Could in an Emergency Defense”: The Emergency defense is a favorite excuse for causing a brachial plexus injury. The defense will contend that once a shoulder is stuck (“dystocia”), the baby must be extracted within minutes lest brain damage occur, so that whatever was done in the emergency must be excusable. Your intake evaluation should help you assess whether the emergency was of their own making. (for instance, due to overzealous use of inducifacient agents, or failure to appreciate or anticipate a macrosomic fetus and/or feto-pelvic disproportion, inappropriate use of forceps, etc.) See www.ErbsPalsyOnline.com. Also inquire how the emergency was handled once it arose. a) Were you induced/ what agents were used? b) Was there anything unusual about your labor and delivery? [Start with this general question, but ultimately find out if they had unusual pains, bleeding, loss of consciousness; whether the mother was aware of fetal distress; whether they turned her to her left side, administered oxygen, infused IV fluids quickly at any point; whether the nurse was having problems getting the OB or midwife come to assess something that concerned her, whether the mother had unusual pains different from prior labor, etc.] c) Who witnessed the emergency? Can the father or other supporting relative d) Do you have a video or photos from the time of the emergency? We have occasionally had deliveries videotaped, and the tape shows something being e) Were you informed that you might be having a large baby? Were precautions taken in anticipation of a foreseeable problem or risk? g) What was the attitude of the treaters participating – calm or panicked? i) How long did it take for assistance or anesthesiology to arrive once the 5. The “Poisoned Jury Defense”: To anticipate the prejudices of the jury pool unique to this case, you must get to know the mother (color, creed, nationality), as well as the community in which the case will be tried. You need to be considering, whether you have venue options, e.g., New York allows you to select a venue from the patient’s residence, physician’s office, or hospital address, and whether the case is viable in the With the current political climate, a focus groups and jury consultants are valuable, even though you think you know the attitudes of the community. Chances are you cannot anticipate how they will react to the specific fact pattern of your case. They might turn a tenuous case into a winner, justifying the considerable expense in a big 6. The “Bad Choices Defense”: There is a good chance that if the mother made a poor choice regarding birth decisions, that she was not fully informed of the consequences of her choice. Few mothers know that chemical induction places both the mother and fetus at considerable risk of injury and/or death, and are almost never told that Cytotec, used routinely in inductions, is an off-label drug that is used against the advice of the drug’s manufacturer and the FDA. See www.CytotecCase.com. In contrast with the uninformed mother, there is a large, national association of mothers who have substantial knowledge and fanatical, unwavering beliefs about how deliveries should take place, e.g., that a vaginal delivery is mandatory in just about every instance. They are vitriolicly anti-Cesarian. Visit the website of the International Cesarean Awareness Network, Inc. (ICAN), http://www.ican-online.org/, and other Vaginal Birth After Cesarean (VBAC) groups on the internet to get a better sense of this mentality. (You do not want this kind of person on your jury, where the claim is that a timely Caesarian Section would have averted the problems.) A mother, who adamantly insisted on VBAC delivery despite being fully informed of the possible consequences, and then suffered a uterine rupture with catastrophic consequences, may be at your door seeking to sue her delivering doctor. Keep an open mind. The obstetrician genuinely may have caused her and her baby’s injuries through negligence, such as negligently overstimulating her uterus with Pitocin or negligently administering Cytotec. (Cytotec, i.e., misoprostol, is not considered an appropriate induction agent, even by ACOG in a VBAC delivery.i) (See www.CytotecCase.com) Or the catastrophic delivery might have been “God’s will.” In any event, you need to know the political posture and birth plan of your mother before you venture further into these very complex and expensive case. Know your client well enough at the end of your intake to know what hills you are going to have to climb, and whether you are going to 7. The “God’s Will Defense” : Just because drugs were administered and choices were made as per ACOG standards, your clients injuries may still be the results of medical negligence, not God’s will, due to in appropriate monitoring, failing to tailor the care to meet the individual’s needs and circumstances. For example, a grand multiparous mother with a prior VBAC can be induced as per the ACOG guidelines.ii The guidelines do not take into consideration the experience of the labor nurse administering the induction agent, the adequacy of the staffing to monitor for hyperstimulation, the responsiveness of the obstetrician or midwife when the nurse calls There are a large number of people prone to accept a spiritual or religious explanation for tragedies. (Jerry Falwell and Pat Robertson attributed the World Trade Center disaster and some weather catastrophes to devine retribution for our sins.) Likewise, there are many who don’t believe in lawsuits, even for compensatory damages, because they feel that such things are not fitting, or are “un-Christian.” Having such people on one’s jury may be deadly to a plaintiff. It may be impossible to convince someone who believes that they commune with Jesus on a daily basis, that whatever happens is due to human negligence rather than Divine design. You have to look to the end of the case, even when you are doing your intake, and consider how the unique facts of your case might be received by that specific jury. 8. Defensive Attribution: Recent focus groups and jury polling shows that if you can convince a jury that the same negligent act can happen to them or their family member, and that a finding for your client could help change the medical system to protect them, they are more likely to find in favor of the plaintiff, even if the plaintiff isn’t at all like them, or even that likeable. Learn as much as you can about your client, his health practices, his hobbies, so that you can help a jury identify with them. CONCLUSION: The way to disarm the defenses is to anticipate them and be prepared for what will follow. These common defenses are predictable, and pro-active preparation can do much to de-fuse and minimize the harm that might be done to your i Response to Searle’s Drug Warning On Misoprostol. ACOG Committee Opinion, Number 248, December 2000; Induction of Labor with Misoprostol. ACOG Committee Opinion, Number 228, November 1999. New U.S. Food and Drug Administration Labeling on Cytotec (Misoprostol) Use and Pregnancy. ACOG Committee Opinion, Number 283, May 2003. ii Induction of Labor for Vaginal Birth After Cesarean Delivery. ACOG Committee Opinion, Number 271, April 2002.

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