1 Preparing Birth Injury Case Prior To Expert Review of Causation Careful collection, organization and review of medical information essential to documentation of injury By RICHARD A. SILVER When analyzing any infant brain damage case, counsel and expert physicians are presented with two areas of initial inquiry: first, did the mother and baby receive appropriate care during the pregnancy and delivery; and second, what is the cause of the baby s injury. Of course, expert opinion is necessary to establish that the injury was caused by negligence as opposed to pre-existing, congenital and/or genetic abnormalities. Causation in birth trauma cases is always hotly contested, and the American College of Obstetricians and Gynecologists (ACOG) and The American Academy of Pediatrics (AAP) have flooded the medical community with claims that very few infant brain injuries are caused during labor and delivery. In fact, there is significant peer-reviewed medical literature which contradicts these positions of ACOG and AAP. In order to obtain and work with a knowledgeable expert in the field, it is incumbent on counsel to be thoroughly familiar with the medical records and literature and to have well-organized
2 documentation of the relevant treatment and the child s injury. The necessary steps that must be taken early to prepare the case include: (i) the chronology and initial client interview; (ii) compiling records; (iii) organizing records; and (iv) the expert review. Chronology and Initial Client Interview Prior to the initial interview, the parents should be instructed to prepare a detailed chronology of the prenatal period and hospital course, including all of the health care providers involved. This timeline must cover the entire pregnancy through the most current treatment and should detail the names of all medical personnel, friends and family members who were present at office visits, hospital procedures, the delivery and all comments or reactions by medical staff. This memo will become vitally important as memories fade as the case continues. Since the memorandum is developed at the instruction of counsel, it should be marked Confidential Memorandum -- Attorney/Client Product as it is protected from discovery under the attorney-client privilege. The clients should bring to the interview any video and photographs of the birth and also any video and photographs of the child which may evidence any trauma at birth, such as bruises, as well as the child s current condition and disability. At the initial meeting, the clients must be fully debriefed as to the pre-natal history, hospital course, resuscitation efforts and baby s progress after leaving the hospital. Thereafter, any family members and friends who were present at the birth should be interviewed promptly.
3 Compiling Medical Records Establishing causation requires expert analysis of the office records of the pregnancy, ultrasound or other fetal tests, the mother s and baby s hospital records (especially the fetal monitor strips), radiology films, pathology reports and slides as well as all records of the baby s post-delivery treatment. Crucial clues as to the cause and timing of the child s injuries are often found in the medical records of the mother and baby and include: Abnormal fetal heart rate patterns Abnormal maternal contraction patterns Low Apgar scores and other indicators of the child s depressed condition at birth Abnormal neurological findings in the child, including the onset of seizures Abnormal fetal blood gas and subsequent laboratory studies Abnormal ultrasound, CT, MRI findings in the child Pathology findings in the placenta, cord and amnion The complete hospital record for the mother s and baby s admissions should be ordered requesting all admitting notes, labor records, fetal monitoring strips, nursing notes, progress notes, operative reports, laboratory studies, pathology reports, radiology reports and the discharge summary. Details regarding the baby s condition and treatment are contained in both the mother s record and the infant s chart. If a pathological analysis of the placenta was performed, copies or re-cuts of the pathology
4 slides should be ordered for review by a competent, unbiased placental pathologist as these findings are crucial in establishing the condition of the placenta and the cord and can also be utilized to establish the cause and timing of injury. Detailed billing records should also be requested as they can provide evidence of treatment or medications rendered. It is advisable to send a letter to the hospital putting the hospital on notice to retain all of the original records, fetal monitor strips and radiology studies because hospitals will often transfer records to microfilm or digital storage, which can destroy important information contained in the original handwritten records. The fetal monitor strips are a crucial piece of evidence of the condition of the mother and baby during labor. The fetal monitor continuously records the baby s heart rate and the mother s contraction pattern on long strips of graph paper. The patterns are used to assess the condition of the baby during labor and will often establish the necessity for intervention. Handwritten notes on the monitor strips may be a more accurate record of critical steps taken during labor and can be used to create an accurate timeline of events. Ultrasound, MRI and CT scans taken of the newborn within the first few days are crucial to determining the timing and the mechanism of the brain injury and will often establish whether the injury is recent or occurred earlier in the pregnancy. MRS (magnetic resonance spectroscopy) is now standard in most hospitals and will show the metabolic artifacts of recent injuries. Subsequent images can be used for comparison to show the evolution of the injury and can often assist in timing the injury as well. Hand-written notes in the hospital records and
5 physician s charts should be transcribed by an experienced transcriptionist. These steps facilitate easier and faster expert review. You should obtain the films themselves, as well as the reports, with the understanding that most hospitals will now provide a CD or DVD containing the radiology images to be viewed on a computer, unless you specifically request copies of the actual films. While good quality film copies can be made by copying services, there is always a loss of clarity from the original, and you should obtain duplicate originals from the radiologist, which ensures no loss of clarity as a result of copying. Organizing Records Upon receipt of the hospital records, they should be divided according to the type of record (i.e., labor notes together, progress notes together, etc.) and placed in chronological order within each section. After the records are assembled and transcribed, counsel and staff should edit the detailed chronology. Blood chemistry values, including umbilical cord blood, oxygen, CO2, ph and lactate, are extremely important to detail. After obtaining the medical records and constructing the detailed chronology, counsel should re-interview the clients with this additional information. Expert Review Depending on the case, the records may need to be reviewed by an obstetrician, a maternal-fetal medicine specialist, a pediatrician, a neonatologist, a pediatric neuroradiologist, a pediatric
6 neurologist and/or a placental pathologist. The best available experts must be sought to ensure medically accurate and credible opinions are obtained. Counsel s experience in these cases and a thorough knowledge of the relevant and up-to-date-medical literature are essential to testing an expert s opinion to determine whether a valid case is established. After you obtain an expert opinion that negligence took place that was the proximate cause of the baby s injuries, you must obtain good faith certificates which set forth the experts opinions in accordance with C.G.S a. These will be attached to and served with the complaint.