4 issues in 30 minutes

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1 4 issues in 30 minutes University of California, San Francisco Antepartum & Intrapartum Management Defense of the Perinatal Brain Injury Case University of California, San Francisco Antepartum & Intrapartum Management June 10, 2010 San Francisco, California David R. Lucchese, Esq. Galloway, Lucchese, Everson & Picchi Walnut Creek, CA 1. Are perinatal providers still the targets in malpractice cases? 2. Why are the settlements and verdicts in perinatal brain injury cases so large? 3. What are the most frequent theories of liability in these cases against perinatologists, obstetricians, certified nurse midwives and perinatal nurses? What can these professionals do to lower their risk of being sued, and losing if they are? 4. Can these cases be defended in a courtroom, or at least settled for as little as possible? ARE PERINATAL PROVIDERS STILL THE TARGETS IN MALPRACTICE CASES? YES! In the PIAA malpractice claims closed analysis, between 1985 and 2007, obstetrical claims ranked first among all specialties for the number of claims reported and the total amount of indemnity paid. Closed claims involving the brain-damaged infant had the highest average payment at $565,152. ARE PERINATAL PROVIDERS STILL THE TARGETS IN MALPRACTICE CASES? (cont d.) Verdict Search each year publishes the top 100 top civil cases in the United States (all types): of top 100 civil cases were perinatal brain injury cases, ranging from $23 million to $63 million of the top 100 civil cases were perinatal brain injury cases, ranging from $17 to $212 million. 1

2 WHY ARE THE SETTLEMENTS AND VERDICTS IN PERINATAL BRAIN INJURY CASES SO LARGE? Although in California, general damages for pain and suffering are limited to $250,000, there is no limitation on the collection of economicallyrelated injuries. 2

3 WHY ARE THE SETTLEMENTS AND VERDICTS IN PERINATAL BRAIN INJURY CASES SO LARGE? (cont d.) Perinatal brain injury cases have high economic damages. WHY ARE THE SETTLEMENTS AND VERDICTS IN PERINATAL BRAIN INJURY CASES SO LARGE? (cont d.) These cases involve injuries to babies who during their childhood and adulthood are usually severely disabled secondary to their brain injuries, requiring: extensive medical care expensive and constant assistive care for ADLs recovery for loss of their adult earning capacity WHY ARE THE SETTLEMENTS AND VERDICTS IN PERINATAL BRAIN INJURY CASES SO LARGE? (cont d.) Medical and assistive care have some of the highest rates of inflation. Because of extensive care, these children often have a relatively long life expectancy. 3

4 THE FACTORS IN THE ECONOMIC EQUATION General damages for pain, suffering and loss of enjoyment of life, etc. = $250,000 (limited by Section , Civil Code) Economic damages according to proof at trial THE FACTORS IN THE ECONOMIC EQUATION - Economic Damages (cont d.) Medical and assistive care costs: Level of care needed fee per hour (doctor, RN, LVN, CNA) X Frequency of care required (# hours per day) X Number of days per year service needed gives annual cost X Estimated life expectancy of the child THE FACTORS IN THE ECONOMIC EQUATION - Economic Damages (cont d.) DAMAGES - FOUR Y/OLD QUADRAPLEGIC $13.5M (PCV) Male: 4 years old Condition: spastic quadriplegia Life expectancy: 56 years ECONOMIC DAMAGES Future (Present Cash ) Loss of earning capacity - what the jury finds would have been the level of academic achievement of the child if not disabled; then a forensic economist applies US Bureau of Labor Statistics for the average work life earnings of persons with that level of education General Damages (past and future) 2% of 5% of 4% of 3% of 66% of 0.1% of 19% of $250K $0 Past $691K Med. Care $622K Med. Supplies $451K Education $105K $8.9M House Attendant Modifications Care $2.5M Loss of Earning Capacity 4 Yr. College 4

5 MOST FREQUENT LEGAL ISSUES Opinion of Clark, et. al (2008) in a review of 189 closed perinatal claims of a major insurance carrier between 2005 and 2005, 79% of those cases involved substandard care. MOST FREQUENT LEGAL ISSUES (cont d.) In my own 30 + years of experience defending perinatal providers: Prenatally (mostly involving the perinatologist and the ob) Diagnosing and treating gestational diabetes causing later problems during delivery Missing abnormalities in ultrasound tests Diagnosis and treatment of preeclampsia Management of post-date pregnancies MOST FREQUENT LEGAL ISSUES (cont d.) Intrapartum Induction and augmentation-related problems, including uterine tachysystole Failure to diagnose a failure to progress and then section Fetal heart rate interpretation misinterpreting the maternal heart rate for the fetal heart rate Fetal heart rate interpretation failure to diagnose FHR pattern requiring immediate intervention for fetal intolerance to labor MOST FREQUENT LEGAL ISSUES (cont d.) Intrapartum (cont d.) Improper use of vacuum or forceps Failure to diagnose and avoid a potential shoulder dystocia; or failure to properly resolve a shoulder dystocia Failure in the face of a fetal indication for section to start the procedure in a reasonable time after the decision to section Failure to continued FHR monitoring in the operating room 5

6 MOST FREQUENT LEGAL ISSUES (cont d.) Intrapartum (cont d.) For CNMs: failure to follow hospital guidelines for interface with the supervising physician, or need to transfer care For L&D nurses: not following nursing protocols; failure to notify ob or CNM of significant abnormalities in the mother or fetus Failure of the obs, and/or nurses to alert the nursery of potential problems for a soon to be delivered baby so they will be present Regarding resuscitation of the newborn, if needed: failure to have necessary staff present and failure to follow NRP guidelines in the resuscitation HOW TO REDUCE RISK AND IMPROVE CHANCE OF DEFENSE Better documentation the key to later explanation This is constantly mention, but not always followed. Especially needed if there is an emergency should someone be a scribe, and document as if during a code. Physician progress notes need to be more frequent during labor, an use a SOAP format; the plan is especially important if labor progress is slow. HOW TO REDUCE RISK AND IMPROVE CHANCE OF DEFENSE (cont d.) Shared understanding of FHR interpretation among providers Instill in providers the importance of teamwork and communication between providers on the maternal and fetal condition Have a higher awareness of potential danger during the second stage of labor HOW TO REDUCE RISK AND IMPROVE CHANCE OF DEFENSE (cont d.) Have drills for obstetrical emergencies, including shoulder dystocias; and/or have an OB rapid response team When a cesarean section is called make sure that everyone knows the indication, the rapidity at which the baby needs to be delivered, and have the section start as soon as the circumstances merit continue monitoring the fetus 6

7 HOW TO REDUCE RISK AND IMPROVE CHANCE OF DEFENSE (cont d.) If there is any belief the fetus may be depressed at birth, alert the nursery to have necessary resuscitators and care providers at delivery If possible cord blood gasses should be obtained on every delivery, but for sure if the baby is at all depressed at birth; and, if the baby is depressed the placenta should be retained and examined. PERINATAL BRAIN INJURY CASES CAN BE DEFENDED IN COURT, OR THE SETTLEMENT CAN BE SIGNIFICANTLY LOWERED, IF CERTAIN ELEMENTS ARE PRESENT There are some perinatal injury cases where truly the baby experienced peripartum hypoxic-ischemic brain injury and the totality of the facts make the case one that cannot be defended at trial Those cases are settled often for very significant amounts of money in the millions of dollars. PERINATAL BRAIN INJURY CASES CAN BE DEFENDED IN COURT, OR THE SETTLEMENT CAN BE SIGNIFICANTLY LOWERED, IF CERTAIN ELEMENTS ARE PRESENT (cont d.) I have won most of the perinatal brain injury cases that I have tried in court or in arbitration. In my review of jury verdicts and settlements in other states there are many of these cases that are being tried in court, rather than settled, and many are being won as well. PERINATAL BRAIN INJURY CASES CAN BE DEFENDED IN COURT, OR THE SETTLEMENT CAN BE SIGNIFICANTLY LOWERED, IF CERTAIN ELEMENTS ARE PRESENT (cont d.) There is a trend to try these cases if the content of the medical records can be opined by expert witnesses to demonstrate that the actions of the perinatal healthcare professionals were in compliance with the standard of care, and there also clinical evidence to support an expert witness opinion that the infant s brain injury did not occur during the intrapartum period. 7

8 CAUSATION WERE THE ACTIONS BY THE DELIVERY TEAM THE CAUSE (SUBSTANTIAL FACTOR) OF THE BABY S BRAIN INJURY? Stevenson, et al: Fetal and Neonatal Brain Injury: Mechanisms, Management and the Risks of Practice (1989): The human brain is susceptible to a wide variety of genetic, developmental, and acquired abnormalities and insults. 8

9 The realm of low frequency, high severity Prevalence of cerebral palsy is about 20 per 10,000 births. Incidence of neonatal encephalopathy attributable to intrapartum hypoxia is 1.6 per 10,000 births. The great majority of cerebral palsy is caused by factors other than intrapartum hypoxia. The Effect of Demonstrable Evidence as the Basis for Causation Testimony Case: Schutte v. Dr. Green; perinatal brain injury; spastic quadriplegia; arbitrated when child was 9 years of age totally dependant $10 million PCV (a Carol Hyland special). Question: did 8 hours of high doses of pitocin cause hyperstimulation, decreased fetal profusion, terminal bradycardia and hypoxic-ischemic brain injury at birth? Defense Causation Experts Defense experts: (a) pediatric neurologist looks at 14 hour ultrasound of baby s brain showed the changes in the brain caused by hypoxic injury, but weeks before labor; and (b) placental pathologist who showed a blowup of slide of placental tissue which demonstrated structural changes in the villi chorioangiosis (much increased number of blood vessels) that was caused by hypoxic injury weeks before labor. 9

10 Written ruling by arbitrators for defense (5/30/06): The arbitration panel is particularly impressed with the fact that the testimony of Dr. Machin and Dr. Barados on visible structural abnormalities, which they testified could not have occurred without a hypoxic injury preceding labor, was not disputed by plaintiff with contrary expert opinions in these areas.accordingly, the majority of the panel finds that plaintiffs have failed to sustain their burden of proof either on the issues of causation or standard of care. You know, I have a confession to make, Bernie. Win or lose, I love doing this. References References (cont d.) Chauhan SP, Klauser CK, et al. Intrapartum nonreassuring fetal heart rate tracing and prediction of adverse outcomes: interobserver variability American Journal of Obstetrics and Gynecology (2008) 199(6): 623. Clark EA, Misher J. Team training/simulation Clinical Obstetrics and Gynecology (2010) 53(1): Crofts JF, Fox R, Ellis D, et al. Observations from 450 shoulder dystocia simulations: lessons for skills training Obstetrics & Gynecology (2008) 112(4) Druzin ML, El-Sayed YY. Cesarean delivery on maternal request: wise use of finite resources? A view from the trenches Seminars in Perinatology (2006) 30(5): Fahey JO, Mighty HE. Shoulder dystocia: using simulation to train providers and teams Journal of Perinatal-Neonatal Nursing (2008) 22(2): Fox M, Kilpatrick S, King T, Parer JT. Fetal heart rate monitoring: interpretation and collaborative management Journal of Midwifery and Womens Health (2000) 45(6): Graham, EM, Petersen SM, et al. Intrapartum electronic fetal heart rate monitor4ing and the prevention of perinatal brain injury Obstetrics & Gynecology (2006) 108: Gherman RB, Chauhan S, et al. Shoulder dystocia: the unpreventable obstetric emergency with empiric management guidelines American Journal of Obstetrics and Gynecology (2006) 195(3): Lerner S, Magrane D, Friedman E. Teaching teamwork in medical education Mt. Sinai Journal of Medicine (2009) 76(4): Leonard M, Graham S, Bonacum D. The human factor: the critical importance of effective teamwork and communication in providing safe care Quality Safety Health Care (2004) 13 Supp:

11 References (cont d.) References (cont d.) Lucchese DR. Defending the perinatal brain injury lawsuit: trending toward trial. For The Defense (2007) 56-70, 83. MacLennan A, Nelson KB, Hankins G, et al. Who will deliver our grandchildren? Implications of cerebral palsy litigation JAMA (2005) 294(13): Macones GA, Hankins GDV, Spong CY, et al. The 2008 National Institute of Child Health and Human Development Workshop Report on Electronic Fetal Monitoring: update on definitions, interpretation, and research guidelines Obstetrics & Gynecology (2008) 112(3) McCool WF, Guidera M, et al. The role of litigation in midwifery practice in the United States: results from a nationwide survey of certified nurse-midwives/certified midwives Midwifery and Women s Health (2007) 52(5): ). Parer JT, Ikeda T. "A framework for standardized management of intrapartum fetal heart rate patterns" American Journal of Obstetrics & Gynecology (2007): 26.e1-26.e6. Phelan JP, Korst LM, Martin GI. Causation fetal brain injury and uterine rupture Clinics in Perinatology (2007) 34: Physician Insurers Association of America. Risk Management Review (2008 Edition). Schifrin BS, Cohen WR. Medical legal issues in fetal monitoring Clinical Perinatology (2007) 34(2): Simpson KR, Knox GE. Common areas of litigation related to care during labor and birth: recommendations to promote patient safety and decrease risk exposure Journal of Perinatal-Neonatal Nursing (2003) 17(2): Willis Healthcare Practice. Health Trek (September, 2008)