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Delivering Justice

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Delivering Justice

February 27, 2003
Legal ReformOther

As the malpractice wars rage on, the press is finally noticing a new study with major implications for our medical-liability system.

On Jan. 31, the American College of Obstetricians and Gynecologists, along with the American Academy of Pediatrics, released the results of a comprehensive new three-year study surveying what is known about the causes of cerebral palsy and brain injury in full and near-full term infants. According to the study, "the vast majority" of brain damage and cerebral palsy among these infants originates in factors largely or completely outside the control of delivery-room personnel -- factors that include prenatal infection, genetic fetal abnormalities, disorders of blood clotting, and maternal thyroid problems and diabetes. Contrary to what had long been assumed, interruption of oxygen during labor is "not a significant cause in most of the cases."

Why is this news? In part because lawsuits blaming OBs for cerebral palsy and other infant brain damage may constitute the single biggest branch of medical malpractice litigation, yielding lawyers the highest settlements and the richest contingency fees, rivaled only by failure to diagnose cancer. If ACOG's report is to be credited, much of this litigation looks to be scientifically unfounded.

Around 8,000 babies are diagnosed each year with cerebral palsy, an incurable disorder that in severe cases may require a lifetime of care. The distraught parent who turns to the Internet for information after a child's diagnosis will be bombarded with law-firm ads. "Delivery mistakes can cause cerebral palsy. Record-setting cerebral palsy verdicts!" blares one. Another boasts of $120 million, $103 million and $100 million awards won by "our affiliated attorneys (these are the very same attorneys that could be assigned to your case)." At, until recently a picture of a wheelchair flashed in alternation with a picture of a stack of dollar bills. "Your child's cerebral palsy may be the result of a medical mistake. Don't get mad. Get Even!"

These sites offer an ostensibly independent medical evaluation of a child's file, which, however, is not necessarily independent of the lawyers' incentive to find someone to blame. Among many in the litigation business, it is an article of faith that mistakes in labor and delivery causing hypoxia, or lack of oxygen, are a very frequent cause of infants' bad neurological outcomes. The next step is to break the horrible news to the parent: Your child would never have had to endure this grievous disability had the doctors only done their job properly. One father was recently quoted as saying that on hearing this news he was gripped with a desire to kill the doctor, probably not an unusual reaction. The lawsuit that follows will claim that brain damage could have been averted had doctors only given the mother a Caesarean section, or given her one earlier or later; or administered medications in a different combination, or at a higher or lower dosage -- there's an ample supply both of causation theories and of experts-for-hire willing to testify to them. Hired experts for the doctor and hospital then often dispute the causal link between the alleged lapse in care and the child's plight.

Most juries, it seems, decide such cases in favor of the defense. But those that find for the plaintiff return awards that not infrequently top $10 million. Last year the National Law Journal's nationwide top-100-verdicts list included 13 medical liability cases, of which 10 involved delivery and care of newborns and half or more alleged oxygen deprivation. (Causation was a major element of dispute in many but not all of the cases.) Of the 10, six came out of the New York courts, including a trio of Brooklyn cases at $94 million, $90 million and $62 million. The great majority of cases settle without trial, and even a case where the causation element is speculative may command a handsome settlement if it is filed in a liberal jurisdiction and if doctors' handling of the delivery can be depicted as callous, confused or chaotic. Yet defensive medicine, including the skyrocketing of Caesarean-section incidence to one-quarter of births, has failed to lower cerebral-palsy rates.

The report by no means relieves delivery rooms of responsibility. It estimates that between 6% and 10% of newborns' brain injuries do originate in events during labor and delivery, and that of these perhaps half, amounting to 3% to 5%, might be preventable (which does not mean that the failure to prevent them implies negligent care in any given case). In a larger swath of cases, perhaps another 25%, the handling of labor and delivery may influence the extent of damage in cases where pre-existing risk factors already spell trouble for a child. The report does not dispute that some high-verdict obstetric brain damage cases rest on valid science.

This did not mollify plaintiff's lawyers quoted in the Boston Globe, whose reactions ranged from dismissive to furious. One attorney called the report "dangerous, intellectually indefensible, and morally irresponsible." "This is not a peer-reviewed medical research paper," claimed another. On the contrary, said Dr. Gary Hankins, chair of the task force that produced the report, it was "one of the most highly peer-reviewed reports ever." ACOG and AAP also lined up an all-star list of institutions to second the report's findings: it's been endorsed by the federal government's National Institute of Child Health and Human Development and Centers for Disease Control and Prevention, by professional groups from Canada, Australia and New Zealand, and by the March of Dimes. The United Cerebral Palsy Research and Education Foundation likewise "concurs with the findings of the report," its medical director says.

All of which suggests that the movement for medical liability reform needs to tackle not only the size of verdicts but also their believability. Caps on pain-and-suffering awards are of at best limited help if doctors lose all confidence that the legal system will get medical facts right in the first place. (Ask plastic surgeons about the silicone implant debacle, or orthopedists about the attack on pedicle bone screws.) "Certificate of merit" laws requiring plaintiffs to line up an expert before filing suit rather than afterward probably do some good, as do evidence rules empowering judges to exclude more scientifically doubtful testimony and juror-selection reforms to keep citizens with medical expertise from being systematically excluded from jury service.

More ambitiously, we could take a leaf from other nations' practice by moving toward the use of experts answerable to the courts, rather than contending experts hired by the parties, and by adopting loser-pays to discourage long-shot cases. One needlessly injured child, as will rightly be pointed out, is too many. Isn't one falsely accused defendant also too many?