1. NEONATAL BRAIN INJURY THE DEFENSE PERSPECTIVE November 19-20, 2009 University of Colorado Denver School of Medicine Gil Dickinson, Esq. Dickinson Prud’Homme Adams & Ingram, LLP Denver, Colorado

2. OverviewOverview The litigation environment Elements of Liability in Claims for neonatal brain injury Educating a jury on the causes and types of brain injury Communication and informed consent

3. Lawsuits in Obstetrics Generally, there will have been a bad outcome It May take several years to appreciate injuries, and for suit to be filed

4. There will be a bad fetal strip

5. Retrospective in Nature There will, in retrospect, have been opportunities to have intervened. The “choice” not to investigate is portrayed as a cavalier gamble with the safety of the mother and fetus

6. The patient or family will feel they were abandoned at some level

7. Elements of Liability in Negligence Case 9:1 ELEMENTS OF LIABILITY 9:1 ELEMENTS OF LIABILITY For the plaintiff to recover from the defendant on her claim of negligence, you must find that all of the following have been proved by a preponderance of the evidence: 1. The plaintiff had (injuries) (damages) (losses); 2. The defendant was negligent; and 3. The defendant’s negligence was a cause of the plaintiff’s (injuries) (damages) (losses). If you find that any one or more of these statements has not been proved, then your verdict must be for the defendant. On the other hand, if you find that all of these statements have been proved, then your verdict must be for the plaintiff.

8. The Plaintiff Must Show 1.LIABILITY- (BREACH OF STANDARD OF CARE) 2.CAUSATION 3.DAMAGES/INJURIES

9. FAILURE TO EXERCISE THE DEGREE OF CARE AND SKILL THAT A REASONABLY PRUDENT PROFESSIONAL WITH SIMILAR TRAINING AND EXPERIENCE WOULD EXERCISE UNDER THE SAME OR SIMILAR CIRCUMSTANCES PROFESSIONAL NEGLIGENCE: BREACH OF THE STANDARD OF CARE

10. CAUSATION 9:18 CAUSE WHEN ONLY ONE CAUSE IS ALLEGED — DEFINED The word “cause” as used in these instructions means an act or failure to act, which in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have happened. Colorado Jury Instructions (4 th )

11. BURDEN OF PROOF Legally: the plaintiff must prove negligence and causation Practically: defendant must prove to the jury that injury did not occur during birth process

12. Legal Concepts “Egg shell” Plaintiff: preexisting vulnerability of fetus prior to birth is not a defense if timely delivery would have prevented the injury.

13. Aggravation of preexisting condition: Even in face of proven prenatal injury, if it can be shown there was additional perinatal injury, it is the defendant’s burden to apportion degree of injury that preexisted any proven negligence.

14. JUROR SYMPATHY THE PRIMARY CHALLENGE FOR THE DEFENSE

15. Judicial sympathy? Yes. They are people too.

16. DIAGNOSTIC TOOLS FOR CAUSATION What will make sense to a jury? ACOG CRITERIA

17. Statistics 77 to 88% of CP in children is unrelated to birth trauma 99.8% of children born after having nonreassuring EFM tracing have no brain injury Overall incidence of CP has not declined with the advent of EFM

18. Are Clinical Findings consistent with acute hypoxia/anoxia? clinical Presentation at delivery Apgar Score Does this neonate look like it suffered asphyxiation in utero? Cord gas Acidosis is the inevitable response to consequential hypoxia/anoxia.

19. Do the facts suggest Other Causes for Decompensation? Sentinel event in utero : Is there absence of evidence of acute hypoxia on EFM?

20. IMAGING Is the pattern of injury consistent with global hypoxia at the time of birth? watershed pattern or “acute profound” pattern?   Evidence of injury at earlier stage of development? (i.e. periventricular leukomalacia)   Stroke? (isolated injury)   infectious process? (varied)   Genetic disorder? (structural abn?)

21. WATERSHED PATTERN OF INJURY

22. Watershed Areas

23. Watershed in a1 year- old

24. Hypoxic-ischemic injury to basal ganglia and thalamus

25. Periventricular Leukomalacia in a 7 mos. old

26. MIDDLE CEREBRAL ARTERY INFARCTION

27. INFECTION (ABSCESS)

28. Placental pathology Another source of information about potential prenatal insults  Growth abnormalities  Old abruption  Chronic infection

29. Text resources Barkovich: Pediatric Neuroradiology Volpe, JJ: Neurology of the Newborn Pomerantz: Interpreting Cord Blood Gases Fannarof & Martin’s Neonatology & Perinatal Medicine Benirschke - Pathology of the Human Placenta ACOG: Neonatal Encephalopathy and Cerebral Palsy

30. Failure to Obtain Proper Consent May Constitute Battery Intentional and wrongful physical contact with a person without his or her consent that entails some injury or offensive touching Black’s Law Dictionary (6 th ED.)

31. Failure to Obtain Informed Consent for a Medical Procedure Patient must be informed to a degree that she is able to make an educated decision about a particular course of treatment

32. Areas of Vulnerability C-SectionVBAC Operative vaginal delivery Any Invasive Procedure Documentation of treatment refusal should include information that was provided to patient

33. Failure to Inform Family Try to keep the patient and family as fully informed as possible during the care. When things go bad: It is OK to express sympathy and to apologize to patients and families Such expressions are, in many states and in Colorado, statutorily protected from admission as evidence of negligence at trial

34. Colorado Apology Law C.R.S. 13-25-135 (“I’m Sorry” Statute) 1)Statement must be made by a healthcare provider* 2)Must be made to the patient or a relative ** or representative 3)Only applies to “unanticipated outcomes of medical care.” *** * Or employee of provider ** Includes any person who has a “family-type” relationship with a victim. *** Does not apply to other negligent personal injury actions

35. What is Protected ? Any and All: What is Protected ? Any and All: Statements - Affirmations - Gestures - Conduct Expressing apologyfaultsympathycommiserationcondolencecompassion general sense of benevolence

36. Our jury system Why it works