Managing your Practice The importance of Internet reputation You may not care what is said about you online, but others do. CITY OF INDUSTRY, CA

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1 THE MAGAZINE FOR NORTHERN CALIFORNIA PL AINTIFFS ATTORNEYS The Magazine for Northern California Plaintiffs Attorneys November 2014 issue Reproduction in whole or in part without express written permission is prohibited. Copyright 2014 by Neubauer & Associates, Inc. Medical malpractice Preparation and trial of birth injury cases James Bostwick Analyzing and prosecuting medical malpractice cases Bruce G. Fagel Dental malpractice: What you must know about implants Edwin J. Zinman Managing your Practice The importance of Internet reputation You may not care what is said about you online, but others do. Profile James Bostwick A trial lawyer by chance, he goes on to become a legend Appellate Reports Ellis Law Group ruling on anti-slapp fees, self-represented lawyers and lawyers working as contract attorneys Private lawsuits, public lawyers Should you have a binding arbitration clause in your attorney fee agreement? Karen Stromeyer and Timothy Halloran PRESORTED STANDARD MAIL US POSTAGE PAID PERMIT 4083 CITY OF INDUSTRY, CA Change Service Requested 2229 Lombard Street San Francisco, CA Avoiding the voidable Ensuring contingency fees and feesharing agreements are enforceable David L. Winnett NOVEMBER2014

2 THE CIFARELLI LAW FIRM, LLP Why you should refer your child sexual abuse or adult sexual abuse case to us: We have un-matched experience handling child sexual abuse cases for nearly twenty years. We have re-defined the value of Childhood Sexual Abuse cases and Sexual Abuse cases involving adults. VICT ORIES FO R CHILD REN SIN CE 2012 HIGH SEVEN-FIGURES PAID MID SEVEN-FIGURES PAID SEVEN-FIGURES PAID SEVEN-FIGURES PAID Teacher touching two students in the classroom Teacher sexually assaulting student athlete Teacher putting student on lap in classroom 5-year-old girl molested by 5-year-old boy VICTO RIES FOR ADULTS SIN CE 2012 HIGH SEVEN-FIGURES PAID SEVEN-FIGURES PAID Patient improperly touched by physician during exam Patient fondled by physician before surgery Groundbreaking privacy rights victory for child sexual abuse victims M.G. v. Time Warner, Inc., (2001) 89 Cal.App.4th 623 Generous referral fees paid pursuant to state bar rules. THOMAS CIFARELLI Best Lawyers in America, Lawyer of the Year, Orange County, Best Lawyers in America, Southern California Super Lawyers, Southern California Top 50 Super Lawyers National Trial Lawyers, Top 100 Trial Lawyers in California Martindale-Hubbell, AV Preeminent Rating since 2001 Law Dragon, Top 500 Plaintiff Lawyers in America THE CIFARELLI LAW FIRM, LLP


4 Boutique is better. If you read the articles in this magazine, you ll know that using medical liens to obtain full, net medical bills on your cases is the best way to achieve max policy limits. Referral and Co-Counsel Relationships At Standard Medical Funding every attorney we work with is designated one contact person in order to facilitate a personal, mutually trusting relationship. Unlike many doctors who hold their own liens or our competitors, Standard Medical Funding takes pride in working with attorneys to get reductions when they re needed. Doctor Highlights Dr. Robert Aptekar Orthopedist University of Michigan, Ann Arbor - Medical School Stanford University - Residency (Orthopedic Surgery) Former Clinical Professor at Stanford University A knowledgable, compassionate and interested orthopedic surgeon. He has a great staff. He is efficient and thorough. Great to have this kind of doctor when you need one. Sue H., Yelp 9/8/2011 Dr. Justin Lo Board Certified in Anesthesiology and Pain Management UCLA - B.S. in Biochemistry University of Rochester School of Medicine UCSF Fellowship, Assistant Professor One of Nevada s largest and highest rated personal injury law firms I recently co-counseled a serious Las Vegas injury case with Rick Harris and his law firm. Rick s advocacy and skills are extraordinary, and were instrumental in resolving and maximizing our client s multiple-seven-figure recovery. The case was expertly worked up, litigated, and masterfully mediated. Everyone I worked with on Rick s team was outstanding. For either a referral or a co-counsel arrangement, I wholeheartedly recommend Rick and the Richard Harris Law Firm for any Nevada case. ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyer 2010, San Francisco, California...we re here to help. [Dr. Lo is an] Outstanding health care professional. All the qualities you d want in a doctor. He treated me like I was his only patient. Very detailed explaining procedures... He knew exactly what to do to lessen my pain... Thank you, Dr Lo, for giving me my quality of life back. Scarlet Sayer, Yelp 10/5/ Plaintiff November 2014 2013 RHLF

5 Features Analyzing and prosecuting medical malpractice cases Accepting a med-mal case and staying focused on the most important aspects of proving the negligence. BRUCE G. FAGEL Medical malpractice: Preparation and trial of birth injury cases A look at continuing developments in the field, including history of fetal monitoring and causation issues. JAMES BOSTWICK Private lawsuits, public lawyers Should you have a binding arbitration clause in your attorney fee agreement? KAREN STROMEYER AND TIMOTHY HALLORAN Dental malpractice: What you must know about dental implants Two million implants a year lead to a growing number of negligence claims. EDWIN J. ZINMAN Profile: James Bostwick Reaching the pinnacle of trial law much like his mentor STEPHEN ELLISON Vol. 8 No. 11 NOVEMBER 2014 Plaintiff is the magazine for plaintiffs attorneys throughout Northern California. Plaintiff is an independent magazine, not affiliated with any legal professional association. We support those who protect the individual s right of access to the civil justice system. Copyright 2014 by Neubauer & Associates, Inc. All rights reserved. Reproduction in whole or in part without written permission is prohibited. PUBLISHER EDITOR Richard J. Neubauer Maryanne B. Cooper, Esq. CONTRIBUTING EDITORS Donna Bader, Esq. Jeffrey Ehrlich, Esq. William L. Veen, Esq. SALES MANAGER Christopher S. Neubauer COPY EDITOR Eileen Goss ART DIRECTOR David Knopf SUBSCRIPTIONS Jean Booth VICE PRESIDENT - ADMINISTRATION Deborah L. Neubauer 6 Plaintiff November 2014 Departments Trial Practice and Procedure Avoiding the voidable Ensuring contingency fees and fee-sharing agreements are enforceable. DAVID L. WINNETT Managing your Practice The importance of Internet reputation You may not care what others say about you online, but prospective clients do. Here s how to manage your online reputation. CATHERINE WATSON Appellate Reports and cases in brief When a lawyer sues for unpaid fees, the client complains for breach of fiduciary duty. JEFFREY ISAAC EHRLICH Back Story Duty calls Jury service a learning opportunity MILES B. COOPER ON THE COVER: Main Photo: Premature Newborn, Metin Kiyak, Secondary Image: Two Men in Court, moodboard, ADVERTISING SALES No. California: So. California: Rate card online at Plaintiff is published monthly by Neubauer & Associates, Inc. Mail subscriptions are free to plaintiffs attorneys in Northern California; $50 annually for others. Send requests to SUBMITTING ARTICLES FOR PUBLICATION Plaintiff welcomes your submissions. Articles on all appropriate subjects are considered throughout the year. Query us, or send your completed article as a WordPerfect, Word or RTF file attachment to: 2229 Lombard Street, San Francisco, CA Mail to: P.O. Box , San Francisco, CA Fax POSTMASTER: Change Service Requested Send address changes to Neubauer & Associates, Inc., P.O. Box 2239, Oceanside, CA Analyzing and prosecuting medical malpractice cases Accepting a med-mal case and staying focused on the most important aspects of proving the negligence BY BRUCE G. FAGEL There is a growing disconnect between two statistical facts over 400,000 people die in the U.S. every year from medical mistakes and yet, according to insurance industry statistics, some 75 percent of all medical malpractice claims are dismissed without the payment of any money to the plaintiff. Of course, these statistics are not immediately comparable since many cases of death from medical mistakes are not provable medical negligence and many of the cases dismissed involve secondary or uninvolved defendants who are named in cases and properly dismissed to focus on more liable defendants. But the reality of medical negligence cases is still true there are too many cases filed that are not good cases and there are too many valid claims that are not filed. The first step in analyzing any medical malpractice case is understanding that such a case is inherently different from any other type of personal-injury claim. While the level and nature of damages are important in any case, damages cannot be the driving motivation in a medical negligence claim. If the jury cannot get past liability, then the damages are irrelevant and both defense attorneys and insurance claims analysts are adept at using a causation defense to prevent a jury ever getting from negligence to damages. While potential clients may have some initial understanding about negligence and a somewhat better understanding of their claimed damages, few if any victims of medical negligence will understand causation. In medical negligence cases, causation is more than just cause and effect; it also involves proving that the injury or death was preventable. This issue must be analyzed before filing any medical negligence claim even if the answer is not completely clear at the time of filing a complaint, but a failure to consider this issue will doom many cases to failure. Deciding to take the case This is the most important decision to be made in any medical negligence case and the wrong initial decision can be See Med-Mal, Next Page November 2014 Plaintiff 7

6 Med-Mal, continued from Previous Page costly and emotionally devastating to both the client and the attorney. In a complicated game of chess, sometimes the best move is not to play at all. However, when meeting with a new potential client who has an often tearful and damning story to tell about their experience with a doctor or in a hospital, the natural instinct of any plaintiff personal-injury attorney is a desire to help the client, and the initial facts can sound pretty outrageous. One advantage in California, as compared to many other states, is that a claim can be filed without an affidavit from an expert. Some states even require a separate affidavit from an expert for each proposed defendant. This requirement limits a plaintiff to the medical records and the limited evaluation by a medical expert based on the medical records alone. Unfortunately, the medical records in many cases are either insufficient to identify the negligence, or in some cases the records actually coverup the negligence. In California however, without the requirement for such an affidavit by an expert, discovery can take place after filing of the complaint and essential information can be obtained which can then be used to build the factual foundation basis for a favorable expert opinion on both negligence and causation. In such circumstances, both the attorney and the client need to understand in advance that the failure to discover sufficient facts through depositions or other discovery may require an early dismissal of the case. It is better to advise a client early on that the prosecution of the case will be dependent on establishing certain facts and will require dismissal of the case if the facts do not come to light, rather than ignoring the facts and riding a losing case to trial. Evaluate the plaintiff This is the second most important decision in a medical negligence case, and it is often ignored in the face of significant damages with good liability. But in a case where the personality of the plaintiff is a potential problem, any attorney must be very circumspect in taking such a case. In all medical malpractice cases, the defense prefers to have the jury see the case in very personal terms, i.e., the suing plaintiff against the caring doctor or nurse. Since most cases involve facts and issues that are beyond the knowledge or opinions of the plaintiffs, the clients need to be aware that their testimony can rarely make a case but often can destroy the case. A plaintiff who exaggerates their injury or the effect of their injury can easily be made the focus of the case by the defense. Also, any significant contributory negligence will allow the defense to shift the focus of the case, and despite the legal principle that contributory negligence does not bar recovery, the reality in medical malpractice cases is more often all or nothing to a jury. Even where a plaintiff s testimony or actions are peripheral to the issues in the case, the defense will go to great lengths to make the plaintiff look bad in front of a jury. This is especially true where the defendant doctor or nurse makes a more credible witness, which is more often the situation. Any attorney pursuing a medical negligence case must be prepared to handle a sympathetic defendant doctor or nurse who will come across well to a jury. The rarer situations where the doctor or nurse does not make a sympathetic or credible witness is more often going to be settled by the defense insurance carrier, but this situation can rarely be evaluated before the case is filed and even the client s impression of the defendant doctor may be different than what comes out at a deposition. Experts Medical experts on negligence and causation are an essential element in any medical negligence case, regardless of the damages. The effective use and avoiding the misuse of experts is the real key to success in any medical negligence case. There is no panacea for obtaining the best experts for any case, but there are certain basic principles for the use of any expert once retained. First, the attorney should conduct as much research as possible about the medical issues in the case before retaining any expert. The Internet is replete with all levels of information about almost all medical topics with varying levels of importance from Wikipedia to Pub Med, the NIH repository for all medical literature. In between, there are many on-line publications from medical schools, professional societies and other organizations that offer not only information, but often lead to the identity of possible experts, or at least those who appear knowledgeable in the field. Once an expert is retained, the attorney should send selected medical records with some focus or direction for the expert. Without divulging the attorney s belief on the liability focus, which if based on the client s impression, is often wrong, the attorney should focus the expert with specific questions based on the attorney s own research. Otherwise, a medical expert faced with a box of records and some knowledge about the injury or death can more easily conclude that there is no liability based on their own prior prejudices. While such a review may satisfy the attorney s legal obligation to obtain an expert review, it will not assist the client in developing a case of liability. Also, in more complex cases where multiple specialities are involved in the care and potential negligence, the attorney needs to be prepared for an expert to find liability but then state that the negligent doctor was in a different specialty than the retained expert. In such cases, it would be appropriate for the attorney to get a referral to the appropriate expert from the expert with such an opinion. Probability, not medical certainty Often the most difficult but important decision an attorney can make is deciding to continue the pursuit of a medical negligence case after a negative, or at least not a sufficiently positive, review. Since most successful medical malpractice cases are fact driven, with specific facts and timing of events being more important than vague standard-of- See Med-Mal, Page 10 Interest rates from 1.99% to 3.99% per month Minimum Payback 4 months minimum and month-to-month thereafter Additional Fees One time processing fee that is collected if/when the case settles 8 Plaintiff November 2014

7 Med-Mal, continued from Page 8 care issues, it is important to find out from any expert what facts would cause them to find a violation in the standard of care or what timing of events would lead to a preventable injury or death. Also, when an expert is not convinced about causation in the case, the expert may be viewing causation from a medical perspective which requires a level of proof similar to that required for a medical study or publication in the medical literature, which is a 95 percent confidence level. Many experts, especially academics or new medical-legal experts, assume that their opinion on causation requires medical certainty rather than probability. When an expert expresses such an opinion the attorney should engage the expert in a discussion about the difference between medical and legal levels of proof. Since additional facts are not likely to change an expert s opinion on causation, it is important to get an expert properly focused on causation at the outset of the case. Many experts assume that they are assisting an attorney when they agree that there was negligence, but then agree with the defense analysis on causation, which they may first discuss at their deposition. Discovery While the medical records often form the most important information in many medical malpractice cases and certainly are the main focus for any expert, depositions of the involved treating doctors and nurses are often just as critical. Unfortunately, many attorneys use the deposition process to simply have witnesses read or explain what they wrote in the medical records. The more important role of depositions in medical malpractice cases is the exploration of the thought process or communications between health-care providers that are not documented in the medical records. All doctors learn a basic process of obtaining information from a patient, examining a patient, considering possible diagnoses, and formulating a plan for further evaluation or treatment. However, after years in practice, most physicians will shortcut this process and their documentation in medical records will rarely show their complete thought process. The deposition is the opportunity to take the doctor though this process and demonstrate where they simply made assumptions that have no medical or factual basis. Defense attorneys will often instruct their clients only to respond to questions if they have a specific recollection about the patient or the events in their care, and it is far too easy for doctors or nurses to testify that they have no memory of the patient and can only base their testimony on what was written in the record. This often results in the attorney being forced to ask the witness about their customs and practices. Such questions allow the witness to present their defense to the case without ever having to answer for their actions or inactions that resulted in the injury or death of the patient. Deposition questions should instead focus on the specifics of the case and not let the defendant talk about what they would usually do under similar circumstances. It is better to get an I don t remember response that limits the opportunity for the defendant to provide an alternate explanation at trial, rather than a custom-and-practice response which implies that the witness has faced the situation numerous times before and never encountered any problem. Countering the defense of clinical judgment In addition to causation, almost all medical negligence cases will defend the actions of the defendant health-care provider by claiming that clinical judgment was used to make decisions about the patient. A reference to clinical judgment allows the defendant to use the jury instructions to show that their actions did not fit the legal definition of negligence. Many attorneys will attempt to counter this defense by showing that the defendant did not have the proper training or experience, but that requires proving a negative, which is legally impossible. Any defendant can testify that they have extensive experience (even if they don t) and a custom and practice that can never be disproven. However, the proper exercise of clinical judgment is a two-step process and experience is only the first part. That provides the basis for comparison of a large group of patients or conditions based on training or data in the medical literature to a specific patient. But without sufficient knowledge or data about a specific patient, clinical judgment becomes an assumption that a specific patient will respond to treatment similarly to other patients. It is far easier, and more often the case, to show that a doctor did not have sufficient information about a specific patient, or change in a patient s condition, to be able to compare that patient to some larger population base. With such an analysis, discovery should focus on what a physician or nurse knew about the specifics of a patient s condition rather than the experience of the physician or nurse. Many attorneys incorrectly believe that an adverse outcome or death is usually caused by an incompetent doctor or nurse, but the reality is that most negligent doctors and nurses are welltrained, experienced, and caring individuals. Communication problems have been shown by the Joint Commission to be the most common cause of medical errors causing injuries or deaths in hospitals. Medical records rarely show the full nature and extent of communications between nurses and doctors, and the deposition of doctors and nurses should focus on the extent of communication, or lack thereof, beyond what is written in the medical records or nurses notes. In most cases of an adverse event/bad outcome, an attorney can show that incorrect assumptions or simply lack of sufficient information to make a proper decision is both the focus of the negligence and the cause of the ultimate injury or death. The deposition process is the only way to develop such a theory of liability. Also, all doctors are trained to get information about a patient and then to See Med-Mal, Page 12 ERIK L. PETERSON JAMES BOSTWICK Bostwick & Peterson LLP has successfully represented catastrophically injured personal-injury victims in California and Hawaii for over 40 years. We are pleased to report these recent settlements: $11,000,000 neonatal injury settlement $10,700,000 record birth injury settlement $8,000,000 neonatal injury settlement $7,100,000 birth injury settlement $5,000,000 settlement for wrongful death of a minor The majority of our cases are referred to us by attorneys and we gladly pay referral fees. For more information, please visit our website: Fax: Four Embarcadero Center, Suite 750, San Francisco, CA Plaintiff November 2014

8 Med-Mal, continued from Page 10 Case Management Tailored for Personal Injury Attorneys develop a plan for management of their condition. By asking about the doctor s plan, or thought process that is not necessarily reflected in the patient s medical chart, the answers to such questions can show that the doctor did not use any judgment in their management plan for the patient. Conclusion Regardless of the outcome of this month s ballot measure on raising the MICRA cap, the public debate about this issue will likely increase the number of patients seeking an attorney to investigate and pursue a medical negligence claim. If the MICRA cap is increased, plaintiff attorneys will need to avoid the lure of jumping into a case simply because the potential fee is bigger. If the MICRA cap is not increased, it will be even more important for attorneys to be able to correctly evaluate a case and prosecute the claim in a cost-effective manner. Bruce G. Fagel, M.D., graduated from the University of Illinois (1972), and was licensed to practice medicine: Illinois, 1973; California He received his JD at Whittier College (1982). Dr. Fagel is a regularly invited speaker before organizations of attorneys, physicians, and hospitals internationally, and has been interviewed by CBS, ABC, NBC and various media affiliates. Featured in The Best Lawyers in America, He has been an eight-time nominee by Consumer Attorneys Association for Trial Lawyer of the Year and recently featured in the National Law Journal as The 10 Best Fagel Trial Attorneys in the Nation. Dr. Fagel has authored various articles on medical malpractice issues and served as a consultant on medical malpractice law to the California Judicial Counsel Committee, which wrote the new CACI jury instructions (California Approved Civil Instructions). Go from this... to this... And you can afford it. Only $49/month with no long-term commitment ASK ABOUT YOUR CAALA MEMBER DISCOUNT! The features you would expect in systems costing twice as much! Integration Mobile App for ipad/iphone Rules Based Calendaring Document Management System Form Generator Task Management Client Trust Accounting Time and Billing Case Management Contact Management Access your files from anywhere with our cloud version. 12 Plaintiff November 2014 Download the Free 30-Day Trial version (909)

9 Medical malpractice: Preparation and trial of birth injury cases A look at continuing developments in the field, including history of fetal monitoring and causation issues BY JAMES BOSTWICK Over the past three decades the development and trial of birth injury cases due to intra-partum hypoxic ischemic encephalopathy has evolved dramatically. During the 1960s and early 1970s, the only method of monitoring a fetus during labor was by auditory auscultation (listening for changes in fetal heart rate during the contractions). In the late 1970s and early 1980s, electronic fetal monitoring was developed and it soon became a standard method for monitoring fetal well-being during labor (recordation of the fetal heart rate and the uterine contraction by either internal or external means on a continuous paper strip). It became widely used because it provided the only available window as to the well-being of the fetus. Over time, certain abnormalities suggesting fetal distress became recognized and it was recommended that intervention occur to prevent asphyxial injury to the fetus. During the 1990s, the American College of Obstetrics and Gynecology (ACOG) began to realize that this essential monitoring tool was also providing recorded evidence concerning the fetus s condition for birth injury litigation. Considerable attention was devoted to developing strategies which expert witnesses and defense lawyers could use to nullify or lessen the impact of abnormal fetal heart tracings of children that later proved to have cerebral palsy. Major retrospective studies were undertaken which ostensibly provided evidence that over time the use of fetal monitoring made little or no difference in the percentage of children born with cerebral palsy. Extensive effort also went into the analysis of the pathology of the placenta, neonatal presentation and neuro-imaging findings; these were studied extensively looking for alternative explanations or potential markers which could suggest a given patient had not suffered an intrapartum insult. Attorneys specializing in this area over the decades have seen a variety of inventive hypotheses put forth as the causation defense du jour, including fetal nucleated red blood cells, infection, mediated cytokine cascade causing systemic inflammatory response (SIRS), as well as claimed placental abnormalities such as villitis, intravillus thrombi, low placental weight, umbilical cord abnormalities, eccentric cord insertions, nuchal cord, cord knots, etc. By the early turn of the 21st century, this collaborative effort to create a systematic defense modality to counter successes in birth injury litigation culminated in the 2003 ACOG Task Force publication: Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology. This white paper purported to outline criteria that were deemed essential in order to establish a causal link between claimed intra-partum hypoxic events and cerebral palsy. Ostensibly this was designed to provide the practitioner with definitions of intra-partum asphyxia and cerebral palsy. In reality it appeared to many knowledgeable observers the goal was to create exclusive criteria which experts testifying in birth injury cases would have to use to establish causation. The publication listed certain essential criterion that had to be met before cerebral palsy could be attributed to an intra-partum event. They were as follows: 1. Evidence of an umbilical cord ph of less than 7 and a base excess (a component of the blood gas analysis intended to show the accumulation of lactic acid sufficient to cause brain damage) of 12 or greater. 2. Early onset of severe or moderate neonatal encephalopathy in infants at 34 or greater weeks in gestation. 3. Spastic or dyskinetic cerebral palsy. 4. Exclusion of other possible causes, such as infection, metabolic coagulation and genetic disorders. [The battles here were fought primarily concerning numbers 1 and 4.] According to this study, there were also several non-essential criteria which, while not specific for an asphyxial injury, collectively would suggest that an injury had occurred during labor and delivery: 1. A sentinel hypoxic event occurring immediately before or during labor (such as a prolapsed cord, placental eruption or a maternal and/or fetal hemorrhage). 2. A sudden and sustained fetal bradycardia (reduced heart rate) or the absence of normal variability in the fetal heart rate with persistent, late or variable decelerations. 3. Apgar Scores (the assessment of a newborn s status on a scale of 0 to 10) of 0 to 3 when a baby is five minutes old or older. 4. Onset of multi-system organ damage within 72 hours of birth. 5. Early imaging studies showing an acute, non-focal cerebral injury. [The battles here were fought primarily on numbers 2, 3, 4 and 5.] These essential criteria had been developed in earlier ACOG bulletins and See Birth Injury Cases, Page Plaintiff November 2014

10 Birth Injury Cases, continued from Page 14 E M P L O Y M E N T L A W R E F E R R A L S Professionals Serving Professionals other medical journal articles in order to bolster defense positions in birth trauma litigation. Both prior to the ACOG 16 Plaintiff November 2014 publications in January of 2003 and subsequent thereto, there were a multitude of criticisms concerning the various criteria. Many authors suggested that a cord blood ph cut-off of less than 7 was artificially low and failed to include many babies who clearly had suffered intrapartum asphyxia. Apgar scores are notoriously subjective and many children suffering clear intra-partum events and other signs of intra-partum hypoxic ischemic encephalopathy are often awarded Apgars higher than 3 at five minutes. Seizures are a common sign of intrapartum asphyxial injury and were not even mentioned as one of the criteria. Experienced observers noted that in clear cases of intra-partum asphyxia there often was not a sudden and sustained fetal bradycardia; further, that the complete absence of variability in the fetal heart rate, when there are persistent late or variable decelerations is rarely seen in clearly asphyxiated children. Investigators have frequently argued that a base excess greater than 12 is highly suggestive of ongoing intra-uterine asphyxia, whether or not the blood ph was less than 7. (There are a variety of circumstances that can artificially elevate the arterial cord gas ph in an asphyxial event including variations in maternal blood pressure and an occult or a frank cord prolapse.) There also was huge controversy about the significance of early imaging findings. National Fetal Monitoring Standards All but one of the criteria described above deal with the retrospective analysis of causation after the occurrence of a potential intra-partum event. Only one of the criteria, that which relates to fetal monitoring, provides a prospective as well as a retrospective tool for the analysis of fetal well-being. Only fetal monitoring can potentially determine on a real time basis whether a fetus may be suffering intra-partum asphyxia and therefore needs immediate conservative and/or emergent intervention. In the litigation context, defense experts continued to cite the old studies, claiming there is no decrease in the number of cerebral palsy children since the advent of the use See Birth Injury Cases, Page 18 our referral program can be your profit center! Stephen Danz & Associates is recognized as one of the most experienced and successful employment law firms representing whistle blowers and victims of wrongful termination, retaliation, discrimination and sex harassment. our clients are executive, technical, administrative and hourly employees. We pay generous referral fees in accordance with State Bar rules. We also provide regular updates on your referred case. ATTORNEY CARE PROGRAM Regular bi-monthly report on status of referred cases Highest possible referral fees pursuant to State Bar rules Reciprocal referrals where appropriate Referral fees paid religiously at case closure with a complete distribution report to you Regular updates on new significant developments in employment law CLIENT CARE PROGRAM 12 local offices state wide means convenient offices near your referrals and clients All cases are handled by Steve Danz and local co-counsel Clients kept informed of all significant developments in their case Full discovery and complete trial preparation including expert retention where appropriate We vigorously oppose illegal arbitration demands Recently a friend of mine contacted me because I was the only lawyer she knew. Her sister was being pushed out of her job because of her age. With complete confidence, I referred her to Stephen Danz, who immediately met with her and gave her an honest assessment of her legal options. Steve informed me when he met with her and sent me an unexpected, but much appreciated, surprise a referral fee. I hadn t realized it beforehand, but referral fees are a standard part of his practice. My friend s sister was extremely satisfied with Steve, which of course made me look good too. It s important for me to know attorneys like Steve, who I know will do a great job for the people I refer to him. David L. Fleck, Esq. REAL OFFICES, REAL ATTORNEYS REPRESENTING EMPLOYEES ONLY Please contact Stephen Danz to discuss your potential referrals at and visit us for more information at LoS AnGELES orange CounTY PASADEnA SAn BERnARDIno SAn DIEGo FRESno SAn FRAnCISCo SAnTA RoSA SACRAMEnTo San Vicente Blvd., Suite 500, Los Angeles, CA 90049

11 Birth Injury Cases, continued from Page 16 of fetal monitoring. On the other hand, monitoring is widely used by all practitioners; indeed, not even the staunchest 18 Plaintiff November 2014 defense experts are willing to forego fetal monitoring in the care of their own patients. Why? It is clearly the only helpful tool that exists to provide evidence concerning fetal status. Studies make it clear that suboptimal EFM practices contribute to the occurrence of fetal asphyxia and consequent birth injuries. In Sweden, there was a study of 177 children with severe labor-related asphyxia; they found that approximately 50 percent of the cases were related to physician and nursing malpractice. It was the conclusion of the authors that the failure to identify ominous fetal heart rate patterns associated with fetal hypoxia and acidosis and to initiate appropriate interventions had the clear potential to lead to severe asphyxia, death and/or cerebral palsy. 1 Another Swedish study concluded that intra-partum events are very important potential causes of postnatal neurologic symptoms because they are preventable; they note that misinterpretation of electronic fetal monitoring patterns is often a contributing factor in cases of asphyxia. 2 As far back as 1997, a Taskforce met and started the process of developing standardized definitions for interpretations of fetal heart rate tracings and for defining the presence of abnormal electronic fetal monitoring patterns as it related to the prediction of the potential for fetal compromise. These very basic definitions establishing a normal baseline ( beats per minute), the (reassuring) importance of accelerations of more than 15 beats per minute for at least 15 seconds and the absence of prolonged variable or late decelerations (nonreassuring), and of course, the importance of normal fetal heart rate variability (short and long term variations of heart rate). They stated that guidelines needed to be developed for clinical management of fetuses with tracings between the extreme of normal and the obvious ominous pattern, so that clinicians could be alerted to the development of intrapartum asphyxia and recognize it early enough to prevent injury or death. In 2005, despite the fact that fetal monitoring is utilized in about 85 percent of live births in the United States, ACOG published a New Practice Bulletin See Birth Injury Cases, Page 20 BRADFORD S. DAVIS, M.D. & LAW OFFICES OF MICHELS & LEW MEDICAL MALPRACTICE PERSONAL INJURY MARTIN P. WENIZ Verdicts and Settlements Totaling Over 10 Figures. ELIZABETH HERNANDEZ PHIL MICHELS JEROME J. CALKINS Wilshire Blvd. #1300 Los Angeles, CA JIN LEW OUR TEAM CAALA Trial Lawyer of the Year CAALA Appellate Lawyer of the Year Board Certified Physician President Elect KABA CAALA Board of Governors STEVEN B. STEVENS

12 Birth Injury Cases, continued from Page 18 which essentially stated that it was unrealistic to expect that a non-reassuring fetal heart rate tracing could predict cerebral palsy. The practice bulletin went on to assert that there was a wide variation in the way obstetricians interpret and respond to fetal monitoring tracings. If true, this certainly would seem to cry out for more definitive standards to prospectively help the practitioner deal with potentially concerning fetal heart rate patterns. Finally, in 2008, ACOG updated the definitions for fetal monitoring from the 1997 guidelines and proposed that clinicians adopt a new three-tiered system for categorizing fetal heart rate patterns. Those categories are: Category 1 is essentially normal fetal heart tones with a normal baseline rate 20 Plaintiff November 2014 and moderate fetal heart rate variability. There may be decelerations and either present or absent accelerations. Category 2 is (the large, gray area) defined as all patterns not classified as Category 1 or Category 3. These patterns are described as indeterminate and don t predict abnormal fetal acidbase status and require evaluation and continued surveillance. These situations would include bradycardia, provided that there s not totally absent variability, tachycardia, decreased or minimal variability, absent variability with no current decelerations, marked variability, absence of accelerations after scalp or other stimulation, recurrent variable decelerations with decreasing or minimal variability, prolonged decelerations (less than 10 minutes), recurrent late decelerations with decreasing or minimal variability, and variable decelerations with a slow return to baseline. Category 3 tracings are considered to be abnormal and may predict abnormal fetal acid-base status at the time of observation. These include sinusoidal patterns or absent variability with recurrent late decelerations, recurrent variable decelerations or bradycardia. (Note here that they have tightened the definition of bradycardia indicating abnormal status only includes low heart rates with absent variability.) For quality clinical care, it would have been best to provide clear and comprehensive guidelines especially in the gray areas of Category 2. The Category 3 situations are already potential disasters. Many of the scenarios in Category 2 may be developing situations that need intervention before it is too late to alter the outcome. In addition, even though the bulletin clearly established that Category 3 patients are abnormal and that they may predict abnormal fetal basis acidosis status, all they required the clinicians to do is to make an effort to expeditiously resolve the abnormal pattern. In describing the appropriate interventions, they mention all of the standard, conservative attempts to change fetal status, such as administering oxygen, change in position, discontinuing stimulation and treating maternal hypotension, but stunningly, they never bothered to mention surgical intervention or other expedited delivery. It was evident that these guidelines were purposely worded in a vague and ambiguous fashion, with little concern for the clinician or their patient and an overriding goal of providing no definitive statements that might be utilized in birth injury litigation. In the years after the 2008 Taskforce paper was published, ACOG continued to emphasize the limitations of electronic fetal monitoring, its uncertain efficacy and its high false-positive statistics in their annual practice bulletins. Yet, in practice, most of the live births in America continued to be assessed with electronic fetal monitoring because clinicians were aware See Birth Injury Cases, Page 22 Membership Includes FREE Online MCLE November 2014 Plaintiff 21

13 Birth Injury Cases, continued from Page 20 this remained the only method to determine the well-being of the fetus. The practicing obstetricians intuitively recognized the obvious explanation for these misleading statistics. The overall prevalence of cerebral palsy failed to diminish with the use of fetal monitoring simply because the greatest percentage of cerebral palsy cases are caused by events before the onset of labor, only a relatively modest number can be in whole or in part attributed to intra-partum events. The other obvious reason the incidence of cerebral palsy has not decreased is the remarkable advances made in the neonatal care of the premature infant. Many premature children that would have died in the past now survive; unfortunately, they often have the complications common to survivors of early gestation, such as cerebral palsy. So, while fetal monitoring may have improved the chances the term infant that gets into difficulty during labor will avoid cerebral palsy, the increasing number of premature children with cerebral palsy has kept the overall statistics from showing an improvement. In the years after 2008 it continued to be clear that clinicians needed more definitive guidelines to help them make intervention decisions, but ACOG continued to rely on its vague litigation-oriented definitions. 2014, a breath of fresh air In March of 2014, the American Academy of Obstetrics and Gynecology and the American Academy of Pediatrics published a Second Edition entitled Neonatal Encephalopathy and Neurologic Outcome. In this document, there are finally some major changes in the evaluation of neonatal encephalopathy causation and the eventual neurologic outcome, particularly as it relates to the role of asphyxia occurring during intrapartum events. In the First Edition, as discussed above, the Taskforce outlined essential criteria necessary to establish a causal link between intra-partum hypoxic events and the subsequent development of cerebral palsy. This Second Edition clearly reflects a broader perspective put forth by the current Taskforce. It proposes that this process should involve a comprehensive multi-dimensional assessment of See Birth Injury Cases, Page 24 Many of our clients have: LEUKEMIA MYELOMA LYMPHOMA OTHER CANCERS BLOOD DISEASES LUNG DISEASES BREAST CANCER SYSTEMIC VASCULITIS LEAD EXPOSURE And other diseases Specializing in TOXIC TORTS We represent individuals and communities injured or affected by chemicals and toxins We pursue the manufacturers and distributors of chemicals and toxins From working in jobs like: MECHANIC PAINTER PRINTER MACHINIST CONSTRUCTION WORKER RAILROAD WORKER SEAMAN FACTORY WORKER And other jobs that use solvents, paints, inks, food flavorings, lead, or other chemicals. We represent children exposed to lead and/or lead paint We also represent non-profit organizations and other community groups pursuing environmental justice against manufacturers of toxins and chemicals in food, consumer goods, buildings, land, and land owners REFERRAL FEES PAID PER STATE BAR RULES For more information, call us or visit us at METZGER LAW GROUP TOX-TORT Tel. 562/ Fax 562/ Plaintiff November 2014

14 Birth Injury Cases, continued from Page 22 neonatal status to determine the likelihood that an acute hypoxic event occurred in and around the labor and delivery timeframe and contributed to a neonatal encephalopathy resulting in a long-term neurologic injury. They have redefined portions of the essential and non-essential criteria in some very specific ways that are more inclusive and more reflective of the scientific evidence that has been available for the last two decades. They admit they do not have a definitive test or set of markers that reliably establish that neonatal encephalopathy is or is not attributable to an acute intra-partum event. They recognize the importance of being able to assess that issue as a matter of probability and, in this publication, provide significantly more definitive and more inclusive tools to aid in making that determination. Case definitions They now define neonatal encephalopathy as a syndrome of disturbed neurologic function in the earliest days of life in an infant born at or beyond 35 weeks of gestation, now manifested by a sub-normal level of consciousness or seizures and often accompanied by difficulty with initiating and maintaining respiration and depression of tone and reflexes. This is the first time that they have presented seizures as an alternative presentation of neonatal encephalopathy as opposed to just an altered level of consciousness. It is also the first time that they have used the word often rather than demanding there be difficulty in initiating and maintaining respiration and depression of tone and reflexes. They go on to note that the neonatal encephalopathy due to acute hypoxic ischemia (related to intra-partum events) will be accompanied by abnormal neonatal signs and be associated with contributing events that were and are in close proximity to labor and delivery. They are proposing that determining causation should be a process of compiling a constellation of potential markers and contributing events combined with the developmental outcome to see if the constellation is consistent with an acute hypoxic ischemic event and is not explained by other etiologies. The approach provides that the more the various elements from the pertinent See Birth Injury Cases, Page 26 Salty Sez TM B Failing to refer to or associate with a Maritime Lawyer in any boating-accident case is like going to sea without a chart and compass: too many detours, too long a voyage and you can hit a reef. A R N O L D I. B E R S C H L E R ERSCHLE R. c o m ATTORNEY AT LAW i n f b e r s c h l e r. c o m Lawful referral fees paid. Member of the Maritime Law Association of the United States Plaintiff November 2014

15 Birth Injury Cases, continued from Page 24 Essential categories are consistent, the more likely it becomes that an intra-partum event has played a role in the development of the neonatal encephalopathy and ensuing injury. Neonatal signs considered to be consistent with an acute intra-partum event They now define as consistent with an acute intra-partum event an Apgar Score of less than 5 at five minutes and at ten minutes. They go on to say that if the Apgar Score at five minutes is greater than or equal to 7, it is unlikely that an intra-partum hypoxic ischemic event played a major role. There are several major changes evident here when compared with the 2003 criteria, which required Apgar Scores of 0 to 3 at five minutes. Here, they have not only increased the Apgar Score from 3 to less than 5, but suggest a score of 5 or 6 may also be consistent because they indicate a score of 7 is necessary to fall in the category of unlikely to be related to an intra-partum hypoxic ischemic event playing a role in causing neonatal encephalopathy. This essentially has changed the Apgar Score limit from 3 to 6. Furthermore, apparently in recognition of the subjective nature of Apgar Scores in general, they have not even eliminated Apgar Scores of 7 or greater; rather, they have simply placed them in the category of being unlikely. There have been major changes in the analysis of fetal umbilical artery acidemia, as it related to intra-partum asphyxia. The 2014 Second Edition states that a fetal umbilical artery ph of less than 7.0 or a base deficit greater than or equal to 12 mmol/l, or both, increases the probability that neonatal encephalopathy has an intra-partum hypoxic component. They go on to state that lesser degrees of acidemia [only] decrease that likelihood. Finally, they state that if the cord arterial gas ph levels are above 7.20, it is unlikely that intra-partum hypoxia played a role in causing neonatal encephalopathy. This is a sea change in the analysis of the acid-base status of the fetus, as it relates to 26 Plaintiff November 2014 intra-partum HIE. The previous essential criteria, which had to be present, demanded a blood ph of less than 7.0 and a base excess of 12 or greater. This huge 2014 change recognizes that base excess is the most important component of the asphyxial analysis because if it is 12 or greater, there is obvious clear evidence of acute metabolic acidosis whatever the ph may be. There are a variety of reasons why the ph may or may not show a level consistent with that degree of metabolic acidosis (for example, interference with perfusion from cord prolapse or severe maternal hypotension, etc.). The 2014 Edition also takes the ph level up to just under 7.2 by stating that arterial gas ph above 7.2 is only unlikely to be related to intra-partum hypoxia. I suspect there have been hundreds of cases in the last decade tried to verdict where the acid base status of the fetus was the subject of dramatically conflicting expert witness testimony. I suspect many of those cases resulted in defense verdicts at least in part based on expert testimony this new criterion demonstrates to have been inaccurate. Another factor which is noted to be an important part of this global assessment is neural imaging, evidence of acute brain injury seen on MRI or MRS consistent with hypoxic ischemia. The new edition states flatly that MRI is the best definition of the nature and extent of cerebral injury in neonatal encephalopathy. It states that cranial ultrasonography and CTs simply lack sensitivity for evaluation of timing and the nature and extent of the brain injury. It notes that there are distinct patterns of neural imaging that are generally recognized in hypoxic ischemic cerebral injury (watershed type versus deep gray matter). It points out that early MRIs obtained between 24 hours and 96 hours of life may be more sensitive for the delineation of the time of a peri-natal cerebral injury. It also clearly states that the ability to precisely time the occurrence is really a matter of days rather than a matter of hours or minutes in a hypoxic ischemic event. This recognizes the advances that have been made in the use of diffusion imaging in MRI and clearly calls into question the efforts of many defense experts to use CT or ultrasonography to try and time a hypoxic ischemic event to indicate it could not have been related to an intra-partum occurrence. It is clear these modalities may still have some limited application in certain specified circumstances, but that a timely MRI will be the most helpful in determining if there is any reason to suspect that a given case of neonatal encephalopathy does or does not qualify as an intra-partum occurrence. This is a dramatic change from the 2003 criterion, which made no distinction between the various modalities of imaging available to the clinician. Finally, they again point out that the presence of multi-system organ failure is consistent with hypoxic ischemic encephalopathy. This recognizes that a fetus that has undergone a profound hypoxic ischemic event, sufficient to cause a brain injury, will also probably have had a diving reflex response causing a shunting of the blood to the brain. This tends to deprive other vital organs, such as the kidneys, liver, heart and the gut to be denied adequate perfusion and may result in evidence of dysfunction early in the neonatal clinical presentation. Importantly, the discussion in this area makes it clear that this is highly variable and often does not correlate with the degree of injury to the brain. This, again, is a significant departure from the 2003 criterion which simply stated that there should be an onset of multi-system organ damage within 72 hours of birth. Type and timing of contributing factors consistent with acute intra-partum events As before, one contributing factor that is consistent with an acute intrapartum event is a sentinel hypoxic or ischemic event, occurring just before or during labor, such as a ruptured uterus, an abruption of the placenta, cord prolapse, or other well-known catastrophic events. The new edition contains dramatic changes in the description of fetal heart See Birth Injury Cases, Page 28 Online Verdict Reports BECAUSE VERDICTS ARE NEWS. Get the attention your verdict deserves Verdict alerts are sent by to 11,500 California trial attorneys in both Northern and Southern California. Each case summary includes a link to the full verdict report on our Web site. Report your verdicts Unlike traditional print verdict reporters, we will send a verdict alert as soon as practical. It s a 24-hour news cycle. Why should verdicts be any different? Sign up it s free There is no charge to receive the verdict alerts or for viewing the full verdict reports. Go to the Web site and add yourself to the list. From the publisher of Plaintiff Richard Neubauer, Publisher Jean Booth, Editor So. California No. California

16 Birth Injury Cases, continued from Page 26 rate monitor patterns which they deem to be consistent with an acute intra-partum event: They state that Category 1 or Category 2 fetal heart rate tracings associated with Apgar Scores of 7 or higher at five minutes, or normal umbilical cord arterial blood gas measurements, is not consistent with an acute hypoxic ischemic event. By inference, this leaves a number of situations that would be consistent with acute hypoxia. This is a huge departure from the 2003 requirements that stated only a sudden and sustained fetal bradycardia or persistent late or variable decelerations with absent variability qualified. The 2003 requirement was that you had to have (what became in 2008) a Category 3 presentation or this was not an intra-partum hypoxic ischemic event. Indeed, the 2008 definition also required bradycardia to have absent variability. Now they define Category 1 or Category 2 fetal heart rate tracing as not consistent with an acute hypoxic event only if there are good Apgars or normal umbilical cord arterial blood findings. This critical change means that the large grey area of Category 2 patterns (which include patterns with minimal or decreased variability, tachycardia, bradycardia with decreased variability, marked variability, absence of acceleration after stimulation, recurrent variable or late decelerations with minimal or decreased variability, prolonged decelerations, decelerations with slow return to baseline, etc.) all can be defined as consistent with an acute hypoxic ischemic event if the child shows evidence of depression at birth, namely Apgar Scores below 7 or abnormal umbilical cord arterial blood gases (as redefined). They point out that there are additional fetal heart rate patterns that develop after an original Category 1 presentation which may suggest intra-partum timing of a hypoxic ischemic event. These include tachycardia with recurrent decelerations and persistent minimal variability with recurrent decelerations. This again is a significant widening of the inclusion criteria for fetal heart patterns suggesting intra-partum asphyxia. While these definitions only relate to causation, by inference this edition establishes new categories of non-reassuring patterns that by definition can result in asphyxial injury. Birth injury specialists representing brain injured children and their experts have been insisting for the last decade that minimal or poor variability with recurrent decelerations is an ominous pattern which should require aggressive intervention. Unfortunately, defense witnesses relied on the 2003 and 2008 definitions that variability had to be absent and testified that therefore based on these guidelines, standard of care did not require intervention. This resulted in many defense verdicts which were based on testimonial evidence that has now been revised to conform to reality. Unfortunately, many practitioners out there in clinical situations also needed to have guidance on how to deal with the patient who presented with ongoing persistent decelerations and decreasing or minimal variability; many of them may have relied on the guidance of ACOG and chosen not to intervene because the variability had not become absent. Indeed, many of those children might have avoided injury if ACOG had provided more definitive and inclusive guidelines for the doctors and nurses in the field. The 2014 factors also include timing and type of brain injury patterns based on imaging studies that are consistent with the occurrence of an acute intrapartum event. They note that echogenicity can be found on ultrasonography obtained approximately 48 hours or longer after an ischemic event. However, they emphasize that ultrasound lacks sensitivity for brain injury in the encephalopathic newborn. They also point out that computerized tomography imaging lacks sensitivity for brain injury in the newborn and is not helpful for timing because it will often not reveal abnormalities in the first 24 to 48 hours after an injury. Most importantly, they note that diffusion abnormalities on MRI are most prominent between 24 hours and 96 hours of life if the injury relates to an acute peri-partum or intra-partum event. However this can only provide evidence as to a range of days from injury, not hours or minutes. They also point out that there are several well-defined patterns that are relatively typical of hypoxic ischemic cerebral injury. These include: deep gray matter injuries (which are often associated with more acute or profound injuries and usually present with relatively dramatic motor compromise and often spared cognitive function); or watershed cortical injury (which is more typically associated with partial prolonged asphyxial events and can produce global or more modest encephalopathy often presenting with both cognitive injuries and mild to severe motor involvement). They also note that neuro-imaging cannot distinguish the etiology of hypoxic ischemic events, such as whether it was a placental insufficiency or an interruption of umbilical cord blood flow. Next they again discuss the importance of considering whether there are other potential causes of the neonatal encephalopathy. However, unlike the 2003 essential criterion which required the exclusion of other possible causes, such as infection, trauma, metabolic coagulation, and genetic disorders, the 2014 statement simply states that the coexistence of other significant risk factors, such as abnormal fetal growth, maternal infection, hemorrhage, sepsis, and/or chronic placental lesions, simply lessen the likelihood that an acute intrapartum event is the sole underlying pathogenesis of a neonatal encephalopathy. In other words, there is a clear recognition that two conditions may co-exist in a fetus. Indeed, abnormal fetal growth, maternal infection, chronic placental lesions, etc., may in fact be the underlying cause of intra-partum events which culminate in neonatal asphyxia. The Second Edition acknowledges that this does not require an either/or analysis. Finally, while in 2003 it was stated flatly that the neurologic presentation had to be one of spastic or dyskinetic cerebral palsy to qualify for intra-partum causation, the 2014 Second Edition simply states that other subtypes of cerebral palsy are less likely to be associated with acute intra-partum hypoxic ischemic events. Summary For attorneys who prepare and try intra-partum hypoxic ischemic encephalopathy cases, this 209-page tome is required reading. The Taskforce has finally recognized that identification of the cerebral palsied child injured by an intra-partum event cannot be autocratically limited based on a narrowly defined set of markers perhaps inspired less by science than the perceived need to defend lawsuits. At long last, ACOG has chosen to provide the clinician reasoned and thoughtful retrospective guidelines grounded on evidence-based medicine. This work makes it clear that neither side of the legal process has all the answers. Sensibly, the authors have noted that a multitude of elements may, or perhaps may not, combine to produce an intra-partum hypoxic ischemic event. The definition of causation in neonatal encephalopathy is clearly a work in progress. This edition, however, has taken a huge step forward in acknowledging that fact as well as in recognizing the huge variability of human response to asphyxial insult. Most importantly, based on these new definitions of the fetus at risk, today perhaps the doctors and nurses out there in the field watching that baby s heart rate during labor will have substantially more guidance in the decision making process. James Bostwick is a member of the Bar in California and Hawaii and tries cases in many different states. He is a Fellow of The Inner Circle of Advocates, The International Academy of Trial Lawyers (President 2004), Bostwick ABOTA, a Founding member of The American Board of Professional Liability Attorneys and was Best Lawyers s Trial Lawyer of the Year for 2012 and See profile on page 42 of this issue. Endnotes 1 Sophie Berglund, et al., Severe Asphyxia due to Delivery Related Malpractice in Sweden, , 115 Brit. J. Obstetrics and Gynecology, 316 (2008). 2 Hakan Noren, et al., Fetal Electrocardiography in Labor and Neonatal Outcomes: Data from the Swedish Randomized Control File on Inter-Partum Fetal Monitoring. 188AM.J.Obstretics and Gynecology. 183, 190 (2003). 28 Plaintiff November 2014 November 2014 Plaintiff 29

17 Private lawsuits, public lawyers Should you have a binding arbitration clause in your attorney fee agreement? BY KAREN STROMEYER AND TIMOTHY HALLORAN Should you or shouldn t you? When faced with a legal malpractice lawsuit from a former client, many lawyers have regrets about whether they should, or should not have included a binding arbitration agreement in their fee contract. Here is the answer: There really is no right answer. There are distinct advantages and disadvantages to being in arbitration and being in civil court. The decision depends on your preferences and how you balance each pro and con. What follows are a few things to consider before making your decision, and tips for drafting an arbitration clause if you decide to include it. A well-drafted arbitration clause will be enforced California law expresses a clear public policy in favor of the enforceability of arbitration provisions within contracts as a speedy and relatively inexpensive means of dispute resolution. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) To that end, Code of Civil procedure section 1281 states: A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. (Code Civ. Proc., 1281.) Courts will indulge every intendment to give effect to arbitration clauses. (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at 9.) An attorney may ethically, and without conflict of interest, include in an initial retainer agreement with a client a provision requiring the arbitration of both fee disputes and future legal malpractice claims. (Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, ; Cal. State Bar Form. Opn ) 1 Specific issues with agreements to arbitrate fee disputes Even in a good attorney-client relationship, fee disputes can arise. When they do, lawyers should be aware that arbitration of disputes relating to attorney s fees and costs are governed by Business and Professions Code section That section governs any attorney-client fee disputes and voids any contractual arbitration provisions that are in conflict with it. (Alternative Systems Inc. v. Carey (1998) 67 Cal.App.4th 1034, 1044; California State Bar Formal Op ) Business and Professions Code section 6200 et. seq., also known as the Mandatory Fee Arbitration Act, also requires that before any lawsuit or other proceeding can go forward, the lawyer must comply with the non-binding Mandatory Fee Arbitration ( MFA ) notice requirement. Prior to or at the time of service of summons of your fee action, the lawyer must give the client a preliminary notice of the right to participate in nonbinding fee arbitration. (Bus. & Prof. Code, 6201(a).) If the attorney fails to provide the required notice, the client may stay the action or other proceeding by filing a request for MFA. If the attorney has sued the client, the client may submit a request to participate in MFA prior to answering the complaint. MFA is completely voluntary for the client, but if the client commences non-binding MFA, it is mandatory for the attorney to participate. (Bus. & Prof. Code, 6200 (c).) Generally, because the MFA is non-binding, either party may seek trial de novo of their claims. (Bus. & Prof. Code 6204(a).) However, if a client waives non-binding MFA, by failing to formally elect it or filing an affirmative civil action, or following the completion of an MFA, then any pre-dispute arbitration agreement between the client and the attorney will be enforced as to all disputes, including fees. (Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557, 574.) Therefore, while no arbitration provision will relieve you of mandatory participation in MFA, once it is done, any binding contractual arbitration provision can be fully enforced, and the client does not have a right to trial de novo in court. Advantages of arbitration over civil litigation Many attorneys feel that there are significant advantages to including a binding arbitration provision in their legal services contract. These include: Privacy. Many attorneys highly value that their name or law firm is not being called in open court or being on the docket as a legal malpractice defendant. This can be incredibly awkward or potentially embarrassing if you are appearing in the same court as an advocate, and arbitrations have a much greater level of privacy of deposition and other transcripts and pleadings. Avoids risks of a jury that may be sympathetic to an unsophisticated client. Can be less expensive in that discovery is typically limited. Can be faster than trial, especially in light of the recent budgetary issues faced by the courts. Arbitrators are often more experienced and comfortable with complicated (and typically dry) issues of duty, breach, and causation, as well as the case-within-acase format present in these cases. Disadvantages On balance, there are many practical disadvantages to arbitration, particularly for your defense counsel: Some lawyers can find it uncomfortable to arbitrate malpractice claims in front of arbitrators (who usually also serve as mediators) that they use regularly. Cases against attorneys are often disposed of by demurrer, anti-slapp, summary judgment, or other dispositive motion. Even if permitted, these motions are rarely successful in arbitration, where strict rules of pleading and evidence are relaxed, increasing the likelihood that the matter will require a full-blown arbitration proceeding to resolve. Can be more costly for all parties because arbitrators charge in the neighborhood of $5,000 per day, for each day of the arbitration hearing. While this is much more expensive than a court hearing, arbitration is unique in that this cost is split with the plaintiff. Therefore, unlike a typical civil case, the plaintiff is facing large costs that are not recoverable unless there is a contractual provision in your fee agreement awarding prevailing party fees and costs. This can in many cases serve as an early deterrent to a plaintiff when it is a lower exposure case. Absent agreement otherwise, discovery is limited, the Civil Discovery Act of the Code of Civil Procedure, does not apply. The American Arbitration Association ( AAA ), and Judicial Arbitration and Mediation Service ( JAMS ) each have their own rules and procedures, and anything else has to be agreed upon by the parties, usually at the initial conference with the arbitrator. Relaxed rules of evidence and procedure mean most anything can be introduced to be considered by the arbitrator, and left to the arbitrator s discretion as to how much weight it is to be given. Lack of subpoena power can drastically reduce the ability to procure third-party testimony. 30 Plaintiff November 2014 November 2014 Plaintiff 31

18 Binding Arbitration Clause, continued from Previous Page The arbitrator is not bound by California law. (See Moncharsh v. Heily & Blase, supra, 3 Cal.4th at ) Arbitrators, unless specifically required to act in conformity with rules of law, may base their decision upon broad principles of justice and equity, and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action. (Sapp v. Barenfeld (1949) 34 Cal.2d 515, 523.) The general rule that, with narrow exceptions, an arbitrator s decision cannot be reviewed for errors of fact or law. (See Moncharsh v. Heily & Blase, supra, 3 Cal.4th at ) An award reached by an arbitrator pursuant to a contractual agreement to arbitrate is not subject to judicial review except on the grounds set forth in sections (to vacate) and (for correction). The existence of an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review. Also, it is well settled that arbitrators do not exceed their powers merely because they assign an erroneous reason for their decision. (O Malley v. Petroleum Maintenance Co. (1957) 48 Cal.2d 107, 110, 111.) No right to appeal an arbitration award means the loss of leverage to resolve a matter for less than the award. Even if the action goes through arbitration, the award must be confirmed via a petition that is filed in court to create an enforceable judgment. (Code Civ. Proc. 1285). This process deprives the parties of privacy and confidentiality. How to do it If, on balance for you and/or your firm, the advantages of arbitration outweigh, here are some things to consider in drafting the provision in your contract: Make the arbitration clause conspicuous, plain, and clear. 4 Either set it apart within the engagement letter or fee contract (through capital letters, bold type, etc.), or set it apart in a separate agreement, which is also signed by the client. Ensure that the client understands the clause covers malpractice claims. Obviously it should include the word malpractice, and state in simple language that by signing the agreement that the client is agreeing to arbitrate any claims regarding the professional services rendered. Have language recommending that the client obtain outside legal advice before agreeing to the clause. Ensure the effects of the clause are fully disclosed to the client. For example, the client should understand that they are waiving trial by jury, broad discovery, and the right to appeal. Consider any specific conditions you want to include, for example: Which ADR provider would you prefer: JAMS? AAA? How many arbitrators shall comprise the panel? Any specific qualifications for the arbitrator, such as ex-judge? Where should the venue be? What type of discovery should be allowed? What procedural rules should apply? Should the arbitration be conducted pursuant to the laws of the State of California? Example: Arbitration clause Client and attorney agree that any dispute arising out of this agreement or attorney representation will be resolved exclusively by submission to binding arbitration under the rules of the American Arbitration Association. This includes, but is not limited to, any claim or dispute regarding billing/fees or attorney s performance of services including for malpractice, negligence, breach of fiduciary duty, breach of contract, or the like that you may later wish to assert against us. Arbitration shall be before a single neutral arbitrator, selected pursuant to the rules of the American Arbitration Association, and determined by arbitration in San Francisco County. Attorney and Client shall each have the right to discovery in connection with any arbitration proceeding in accordance with Code of Civil Procedure section In agreeing to this arbitration provision, Attorney and Client are specifically giving up any right they may possess to have such disputes decided in court or in a trial by jury, and all judicial rights including the right to appeal from the decision of the arbitrator. By signing this agreement, Client acknowledges that Client has read and understands this provision. Client acknowledges that Client has time to consider this provision and has been advised of the right to consult with independent counsel prior to accepting this agreement for binding arbitration. Conclusion Getting sued by your client is never good news. If you are in binding arbitration or in court the personal costs to you and your practice will be significant. On balance, if your practice is one that handles mostly lower exposure cases, you may benefit from the deterrent effect of the higher costs of an arbitration proceeding and include a binding arbitration clause in your fee agreements. On the other hand, if your practice involves mostly larger exposure cases it is likely more beneficial to remain in court where your chances of an early dismissal on pleading issues or via motion practice are greater, although public exposure is also greater. As defense attorneys who defend attorneys, we believe in the jury system and think that the jury usually gets it right. Karen Stromeyer is a senior associate attorney at Murphy, Pearson, Bradley & Feeney with a practice emphasizing general civil litigation including defending lawyers against claims of Stromeyer professional liability. Prior to joining Murphy, Pearson, Bradley & Feeney, she spent several years as an associate at a prominent Plaintiff s firm in San Francisco where she represented catastrophically injured individuals. Timothy Halloran is a senior partner at Murphy, Pearson, Bradley & Feeney. An experienced trial lawyer and civil litigator, he has tried over 20 legal malpractice cases to jury verdict Halloran and is a member of the American Board of Trial Advocates, is a Certified Legal Malpractice Specialist, and currently sits on the State Bar Legal Malpractice Law Advisory Committee. Endnotes 1 If you are going to include it in your agreement, make sure you check with your Errors & Omissions insurance carrier, this may reduce your premium cost. 2 Code of Civil Procedure section states: (a) Subject to Section , the court shall vacate the award if the court determines any of the following: (1) The award was procured by corruption, fraud or other undue means. (2) There was corruption in any of the arbitrators. (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefore or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title. (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives. 3 Code of Civil Procedure section states: Subject to Section , the court, unless it vacates the award pursuant to Section , shall correct the award and confirm it as corrected if the court determines that: (a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or (c) The award is imperfect in a matter of form, not affecting the merits of the controversy. 4 See Cal. State Bar Form. Opn , fn Plaintiff November 2014 November 2014 Plaintiff 33

19 Dental malpractice: What you must know about implants Two million implants a year lead to a growing number of negligence claims BY EDWIN J. ZINMAN Dental implants are used in 15 to 20 percent of dental prostheses. About two million dental implants are inserted annually. This is projected to grow to four million by Q: What are the indications for dental implants? A: Implants replace a missing tooth or teeth with a root-shaped device that is surgically drilled in either one or both jaws. [Figure 1] Dental implants can support an implant crown over an implant or provide infrastructure support for a complete denture. Q: What are the primary benefits of dental implants? A: Fixed or removable bridges are the prosthetic alternatives to implants. A fixed bridge requires crowning of adjacent teeth for anchorage support. A removable bridge, also known as a partial denture, may be uncomfortable to wear. It usually is unesthetic, particularly for anterior teeth, with visible clasps placed on adjacent teeth for retention. Q: Are implants more stable long term than periodontally compromised teeth? A: Implants are promoted as being more predictable long term to justify extracting teeth which are compromised with periodontal disease. Implants are not the perfect panacea. Long-term studies lasting ten years show greater bone loss among implants than with periodontally compromised teeth that are retained and preserved with regular periodontal maintenance therapy. 2 Accordingly, implants should be a last rather than first resort for treatment of periodontally compromised teeth. Implants, as with teeth, require regular periodontal maintenance care every three to six months depending upon the patient s susceptibility to periodontal disease. Figure 1 Figure 2 Q: Is it a defense to negligent treatment that the patient signed an informed consent form that lists permanent numbness (paresthesia) and/or pain (dysesthesia) as risks of implant surgery? A: Informed consent applies only to nonnegligent surgical risks, and is therefore irrelevant to a claim of negligently performed implant surgery. Several out-ofstate cases have held that informed consent is not a defense to negligent treatment, and evidence of informed consent is therefore inadmissible if the plaintiff does not allege lack of informed consent. (See, e.g., Wright v. Kaye, MD (2004) 267 Va. 510, 593 S.E.2d 307; Hayes v. Camel (2007) 283 Conn. 475, 927 A.2d 880; and Schwartz v. Johnson (2012) 49 A.3d 359, 206 Md. App. 458.) Although California courts have not specifically addressed the informed consent/negligent treatment issue, the: California Supreme Court, discussing assumption of risk in a case involving a touch football game, commented in dicta: [A]lthough a patient who undergoes elective surgery is aware that inherent in such an operation is the risk of injury in the event the surgeon is negligent, the patient, by voluntarily encountering such a risk, does not impliedly consent to negligently inflicted injury or impliedly agree to excuse the surgeon from a normal duty of care, but rather justifiably expects that the surgeon will be liable in the event of medical malpractice. 3 Knight v. Jewett (1992) 3 Cal.4th 296, 312. Q: What are the significant negligent maloccurrences with implant surgery? A: In the lower posterior arch improperly placed implants can penetrate the underlying inferior alveolar nerve canal (IANC) causing permanent altered sensations of persistent numbness (paresthesia) and/or burning pain (dysesthesia) of the inferior alveolar nerve (IAN) and mental nerve branches to the lip, chin and gums on the affected side. [Figure 2] If not angled correctly, the implant drill can penetrate through a concavity of the mandible to puncture the lingual artery and cause lifethreatening hemorrhaging. In the upper posterior arch, improperly placed implants can pierce the maxillary sinus, causing chronic sinusitis. Drilling off angle rather than in the vertical axis can penetrate the outer facial jawbone, predisposing to infection and/or implant failure. Overheating during drilling causes bone necrosis at the implant drill site and predictable failure of the implant to integrate to the adjacent bone. Small-sized mini implants will not support a denture long term and should only be used as interim implants short term. Conventional-sized implants are best for improved denture stability/ retention long term. Q: What implant risk-avoidance techniques should be used for safe practices? A: Permanent nerve injuries from dental implant surgery are usually avoidable with due care. A 3-D Cone Beam CT (CBCT) identifies precisely the location of vital structures such as the IANC, mandibular (lower jawbone) concavities and sinuses to be avoided with implant surgery. Utilizing presurgical measurements from the bony crest to the IANC, the dentist should drill no deeper than two millimeters above the roof of the IANC. A twomillimeter safety zone prevents IANC perforation. 4 Overdrilling into the twomillimeter safety zone or beyond can cause injury to the IAN from direct compression of the IAN. This phenomenon results from inflammatory edema causing ischemia and reduced blood supply to the IAN. Implant sinus-lift surgery elevates the sinuses. Bone grafting in the newly elevated sinus area fills in with new bone to permit longer-sized implants that 34 Plaintiff November 2014 November 2014 Plaintiff 35

20 Dental Implants, continued from Previous Page otherwise would cause sinus perforations if the sinuses were not lifted. A surgical drill guide aids alignment of the implant in the correct vertical axis. Overheating at the implant drill site is avoidable with slow drilling and adequate water coolant of the drill site. Presurgical bone grafting can widen the implant site to permit larger and more stable implants. If the implant is placed inside the inferior alveolar nerve canal and causing neuropathic symptoms, prompt removal of the implant (within 30 hours) probably can avoid permanent altered nerve sensations such as paresthesia and/or dysesthesia. 5 Q: How safe is the radiation from dental 3D Cone Beam CT (CBCT)? A: All radiation is cumulative. Dentists are obligated to utilize ALRA (As Low as Reasonably Achievable) principles of radiation hygiene when taking dental radiographs. For implant placement of one or two implants, a narrow field CBCT emits only 20 microsieverts of radiation. By contrast, a medical CT may emit up to 2,000 microsieverts or 100 times as much. A wide field CBCT of both arches emits approximately 52 to 160 microsieverts of radiation or about 90 percent less than a medical CT. A full mouth series of conventional digital radiographs is approximately 172 microsieverts. 6 Earth and atmospheric average radiation is 3,000 microsieverts per year. Q: Where can a patient obtain a 3D CBCT and a dental radiologist s report of the findings? A: Most dental offices refer to a dental X-ray lab for obtaining a CBCT. A dental radiologist s report of pertinent findings is optional at an additional cost of $75 to $100. Dental radiology is one of the eight ADA-recognized specialties. The dental radiologist s report will include the diagnosis of both medical and dental pathosis. General dentists do not receive adequate training in dental school to completely diagnose all pathosis which may be evident in a CBCT. Notwithstanding, a generalist is legally responsible for making such diagnoses if not referred to a dental radiologist for a report. Q: How may an attorney obtain copies of implant radiographs with the best diagnostic quality? A: JPEG format compresses digital data to produce lesser quality copies. HIPAA requires the dentist to provide electronic copies of radiographs in the same format in which the radiographs were originally electronically created upon the patient s request. 7 Most dental offices presently use electronic digital radiography and have switched from analog films. Pursuant to Evidence Code section 1158, to obtain first generation quality, the attorney should request that individual periapical, bite wing and/or full mouth radiographs be sent via preferably, but alternatively on a disk in the same electronic format as the dentist originally created the radiographs. All CBCT machines are capable of reproducing the CBCT with all of their original data preserved in Digital Imaging and Communications in Medicine (DICOM) format. DICOM is the universal standard in which any software can read the data. Otherwise the standard CBCT copy produced will likely have proprietary software embedded which cannot be easily read unless the reader has the same CBCT software. Q: What is the longevity of dental implants? A: Implant infrastructures have a 30-year life expectancy. 8 Therefore, in a 20-yearold patient, expect one surgical replacement at age 50. Bone loss around implants occur at.1 millimeter to.2 millimeter per year resulting in gum recession and unesthetic exposure of the implant crown margins necessitating periodic implant crown replacement every years. Implants have twice the failure rate when only general dentists place and restore them than they do when specialists such as periodontists, oral surgeons and prosthodontists are included in the implant team. 9 Q: What are the signs of an ailing and/or failing implant? A: Peri-implantitis infection is a form of periodontal disease which is the precursor sign for an ailing implant. Surgical treatment is usually required. If left untreated, more support bone is lost causing painful implant mobility, necessitating removal of the failed implant. Treatment may slow but not entirely eliminate peri-implantitis progression. Peri-implantitis is a major contributor to the limited 30-year life of the dental implants necessitating regular periodontal maintenance. Q: Are implants easily removed and replaced? A: A non-mobile ailing implant removal may be attempted with implant removal devices that counter-torque the implant s threads. If not reversible, then surgical trephinating devices are used. Trephination bone removal creates a larger hole than originally drilled, which may necessitate bone grafting to fill before implant replacement can be done. Also trephination drilling must be done carefully to avoid injuring adjacent teeth or vital structures such as the underlying inferior alveolar nerve. Q: Is implantology a dental specialty? A: The American Dental Association (ADA) is the group that officially recognizes dental specialties. Dental specialty programs usually require three or more years of postgraduate residency. The ADA has not established implantology as one of their eight ADA-recognized specialties. Any dentist is legally permitted to perform implant surgery and place implant crowns. However, specialists have higher success rates than generalists. Specialty training of periodontists and oral surgeons include implant surgery. Prosthodontists receive specialty training in placement of implant crowns. Their respective specialty organizations are the American Academy of Periodontology, American Association of Oral and Maxillofacial Surgeons, and the American College of Prosthodontists. Each specialty has its own Board Certification. Q: How trustworthy are electronically created dentist s records? A: Spoliation is an endemic dentalpractice disease which is difficult to detect without a forensic examiner. On the other hand, one way to investigate is to subpoena the dentist s cloud server s custodian of records for the individual patient if the dentist s records were earlier stored in the cloud. 10 This is not a HIPAA violation since only your client s records are subpoenaed and no other patients records. Q: Are defense attorney s ex parte contacts permissible? A: A fiduciary relationship exists between a dentist and patient. 11 Non-consensual conferences between plaintiff s physicians and defense counsel violates the fiduciary relationship between the dentist and patient. Accordingly, ex parte contacts are not permissible pursuant to HIPAA regardless of state laws. 12 Q: How are implant complications such as peri-implantitis treated? A: Periodontal flap surgery is the traditional method. Recent advances in laser therapy provide not only reduction in inflammation but also new attachment of bone to the implant to preserve the implant from extraction. 13 Q: What are the available therapies for chronic burning (dysesthesia) pain secondary to implant penetration of the inferior alveolar nerve if the implant is not removed within 30 hours of the onset of these neuropathic symptoms? A: Microsurgical repair surgery for implant-related inferior alveolar nerve (IAN) injury is usually contraindicated since the surgical risks of worsening the injury outweigh the little benefit surgery may offer. 14 Pain management neurologists or anesthesiologists at university-based pain clinics titrate with various medications such as Gabapentin, Tegretol, or Lorazepam. Cognitive rehabilitation therapy (CRT) and/or acceptance and commitment therapy (ACT) may also be recommended as supplemental non-surgical therapy. Q: Is smoking an absolute contraindication to implant surgery? Complete Settlement Solutions A client-centered team to preserve settlements and protect your clients Security: Annuity and U.S. Treasury Bond Funded Structured Settlements Protection: Special Needs Trust Services with Nationwide Network of Trust Officers and Trust Attorneys Growth: Asset Management Medicare Compliance in Liability Cases Medicare Set Aside Accounts with Professional and Self Administration Coordination of Public Benefits with a Qualified Settlement Fund WE ARE EXPERIENCED IN MASS TORTS NATIONWIDE A: Smoking is a risk factor that reduces implant success and increases the potential for complications. As long as the patient is forewarned of these risks, implants may be placed. 15 Dr. Edwin J. Zinman graduated from the University of Pittsburgh, both undergrad and dental school. He received his certificate in periodontics and oral medicine from NYU. Zinman After practicing periodontics in New York and San Francisco and teaching at UCSF Department of Periodontics, he attended Hastings College of Law, graduating in His practice is devoted to dental negligence claims. Dr. Zinman has lectured several hundred times to dental societies, AAJ and various legal groups and served on the Board of Directors of the San Francisco Trial Lawyers Association. He has authored chapters in 10 different dental books. Endnotes: Please refer to this article at Jane Riley-Pugh 36 Plaintiff November 2014 November 2014 Plaintiff 37

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