Screening the birth injury case: you can't take every case. Carefully assess a potential obstetrical negligence lawsuit by considering the facts, the data, and the likely outcomes.

The most important part of a successful medical negligence practice is knowing which cases not to take. While you can occasionally make lemons into lemonade, it is not recommended as a steady diet. Taking the wrong case can have huge ramifications.

This is certainly true of obstetrical negligence litigation. Although you may feel sympathy for every couple who comes to you for help after their child has suffered a catastrophic birth injury, you must carefully consider whether you can bring their potential claim to a successful conclusion.

Aside from diverting your firm's valuable resources into work that is unlikely to be productive, pursuing a bad case can be devastating to your clients. Typically, they are already struggling with the lifelong consequences of a child's disability and the guilt of feeling it was somehow their fault for choosing the wrong doctor or hospital. They are justifiably suspicious of professionals, including you. When you accept their case, they feel vindicated: The legal process will resolve their financial concerns for their child and prove that what happened was not their fault.

This is not just another case to your clients. You owe them care and consideration from the moment they walk through your door. And while they may not want to hear you say that they don't have a case, it is infinitely better to tell them so at the outset rather than at the end of an unsuccessful lawsuit.

If you pursue a case that has questionable merit, you may contribute to the negative perception of the civil justice system being touted by the tort "reformers." Plaintiff lawyers have become a political football in a game between insurance companies, doctors, and HMOs on one side, and victims of medical malpractice on the other. This is especially true in the area of obstetrical malpractice. We hear in the news that "frivolous" cases are forcing good doctors to stop delivering babies. It's nonsense, but when people hear the same thing over and over, they start to believe it.

Cases involving catastrophically injured infants are hard to turn down, because they are emotionally powerful and because of the importance of providing for the child's future. But these concerns should not interfere with a thorough and objective assessment of the case.

Get professional help

Proper analysis of a potential medical negligence case depends on knowledge, experience, and the right resources. This does not mean that only experienced medical malpractice attorneys can evaluate prospective cases. It does mean that you must have access to all the necessary information to make an informed decision. Start with a presumption that you should not accept the case, and then meet your own burden of proof to justify taking it.

You can't determine the strength of a case without thoroughly understanding the applicable medicine, ff you don't have this background, you will need to consult with someone who can teach it to you. That does not mean letting your medical consultant--nurse, doctor, or other health care professional--decide whether you will take a case. He or she should serve only as a resource.

Just as a judge instructs jurors at the end of the case that they must apply the law to the facts, so too must you apply the legal issues to the medical facts in your initial evaluation. Daubert questions, statutes of limitations, and the measure of legally recoverable damages under your state's laws are just a few of the legal issues that your medical consultant may not consider, but which may affect the viability and value of the case.

The right medical consultant is critical. A doctor friend or relative, or even one of your own physicians, may be willing to review potential cases for you, and while that may be convenient, consider the offer carefully. First, does this doctor have the qualifications and experience in the relevant field of medicine? Can he or she properly assess the standard of care as it existed at the time of treatment as well as the proximate cause issues? Second, is this doctor someone who wants to please you and thinks that he or she is helping you by telling you what you want to hear? You must make it clear that you would rather hear bad news from a consultant than from a jury.

Another decision is whether to use an expert consultant who will testify, or one who will simply offer an opinion and work with you in the background. The expert who agrees to testify demonstrates a willingness to put his or her reputation on the line. This can be an advantage, but there are two caveats.

First, some experts don't care as much about their reputation as they do about the money they will make testifying. Remember, their fee doesn't depend on the outcome. Second, an expert who has agreed to testify knows that his or her opinions will be questioned in court and therefore may be too cautious. He or she may be less inclined to take difficult cases and reject one that has merit.

It is your responsibility to judge the credibility of your consultants, and when in doubt, get a second opinion. Ask the expert for specific references to the medical literature that support or contradict his or her opinions. After reviewing the literature, you can make an objective assessment, and you'll know the right questions to ask to clarify the issues that could make or break your case. Reading the literature may also lead you to other prominent experts who might help you analyze, prepare, and present your case.

Gather your data

During the initial client meeting, ask yourself: Is this person a good historian, or do you need to speak with other witnesses to get the full story? Is the client credible enough that you can believe what he or she says, even if it conflicts with what is in the medical records? Is this someone you can work with? Plaintiff lawyers have an advantage over defense counsel: We can choose our clients. Think long and hard about taking on a client who you can see from the start is going to be difficult to communicate with or impossible to please.

The client interview can help identify the medical records and other data you will need. It is not enough to simply request the complete medical or hospital chart. In a birth injury case, much of the significant information will not be in these records. You need radiological studies, MRIs, CT scans, and ultrasound films. Placental pathology slides may be critical to rule causes of injury in or out. Electronic fetal monitoring strips are frequently not kept as part of the hospital record and need to be requested separately.

You may also need some of the mother's prior medical records to shed light on the potential standard of care and causation issues. The substantial risks involved in rejecting a good case or accepting a bad one justify spending the necessary time and money to look at everything that could possibly affect the case's viability.

Go backward to go forward

Once you have the necessary data, evaluate your case by proceeding in reverse order. Start with damages, then go to proximate cause, and end with negligence. Doing this will minimize the time, effort, and expense of the screening process. Think of this process as akin to jury interrogatories in which jurors are instructed that if they answer "no" to any question, they are to skip the remaining questions and complete the defendant's verdict form.

If the recoverable damages are not high enough to justify the extraordinary commitment of resources necessary to pursue the case, the analysis is over. Unfortunately, given the way insurance companies respond to these cases, even in circumstances of the most egregious negligence, health care providers are essentially immune unless they cause horrendous injuries. If, however, the potential damages are large, you need to know how and when the injuries most likely occurred. Then you can look at treatment and determine whether it met the standard of care.

While it may seem obvious that damages in a case involving a catastrophically injured infant will always be high enough to justify a lawsuit, you must focus only on damages that are recoverable. That will depend on any caps on noneconomic damages, collateral source set-offs, and the measure of recovery for wrongful death.

For example, an infant who is in a permanent vegetative state with a short life expectancy and whose expenses are all being covered by Medicaid may or may not have a viable claim. In a state such as Connecticut--where wrongful death damages are measured by loss to the decedent and not the estate, there is no cap (yet) on noneconomic damages, and there is no set-off for future collateral source payments--this case would have potential. But in a state that measures damages for wrongful death by loss to the estate, has a cap on noneconomic damages, and requires collateral source set-offs for past and future expenses, the same case may cost more to prosecute than you are likely to recover.

Some cases of catastrophic injury involve the negligent treatment of a serious medical problem that, even with proper treatment, would have resulted in some disability. For example, a negligent resuscitation following a properly diagnosed and treated placental abruption may leave you with an incremental injury that is difficult, if not impossible, to define.

Proximate cause is almost always the primary battleground in a medical malpractice suit and warrants the most scrutiny. Consider several issues: First, is there an identifiable sentinel event that caused the injury? Sometimes the event is obvious, such as a uterine rupture during labor in a patient who had an earlier cesarean section. A review of electronic fetal monitoring strips may reveal periods of hypoxia that caused the brain damage. The infant may have a significant intracranial hemorrhage after a traumatic vacuum or forceps delivery. Although the defense will claim that the injury occurred before birth and the sentinel event was a coincidence, these are still the easiest causes to identify.

Injuries without an obvious sentinel event are more difficult to link to the patient's care and treatment. They come in many different forms and an exhaustive list is impossible, but some examples are thrombotic stroke from head compression during a prolonged labor with uterine hyperstimulation caused by the improper use of pitocin; premature labor brought on by an untreated or undertreated maternal infection; and discordant growth of twins indicating insufficient placental nourishment to one of the twins. In these situations, electronic fetal monitoring may be relatively normal and the child may not be acutely asphyxiated. If the injuries could have been prevented with appropriate treatment, you may still have a case to pursue.

Broaden your search

If the injury occurred during labor and delivery, look beyond the obstetrical records. Examine neuroradiological studies, placental pathology findings, and other clinical and laboratory data.

Neuroradiological studies can be particularly useful in establishing the timing, cause, and extent of an injury. Have them reviewed by a competent neuroradiologist, preferably one with significant pediatric experience, rather than a general radiologist who may not appreciate all the findings. Never trust the radiology reports in the hospital chart. They are frequently wrong. Similarly, a pathologist with experience in examining placentas should review placental pathology slides. Don't rely on the report in the chart, which many contain erroneous findings.

Records of the child's neurological course following birth are also key. The existence and timing of seizures can help establish when an injury occurred. (1) Blood in the urine or diminished urine output are signs of kidney dysfunction that sometimes accompanies an asphyxial injury. Liver function studies or cardiac enzymes may show other multi-organ dysfunction. Although their usefulness is unclear from the medical literature, the timing and quantity of nucleated red blood cells may also indicate that there was an acute injury. (2)

After your expert has reviewed the neonatal data, ask: Does the baby's condition at birth explain the ultimate neurological outcome? The defense will me criteria devised by the American College of Obstetricians and Gynecologists (ACOG) and endorsed by the American Academy of Pediatrics to argue that the degree of asphyxia that the fetus suffered cannot cause cerebral palsy. (3)

This contention is not supported by the studies ACOG cites and is, in fact, contradicted by substantial medical literature. (4) It is clearly not essential that the child's condition at birth meet these criteria for you to accept the case, but you should consider them in order to assess how much difficulty you will have proving causation.

Finally, determine whether there were departures from the standard of care. The precise definition and scope of these departures may not be apparent from the medical records because health care providers don't always chart their mistakes. If it seems the injury was preventable, and your expert has a good-faith belief that the care was negligent, you should proceed with the action and draft the complaint in the broadest possible language. You can get the information specifically related to negligence during discovery.

Pursuing a medical negligence claim on behalf of a catastrophically injured infant requires a commitment of time and resources that you should not undertake lightly. It creates an enormous responsibility to your clients, your law firm, and the civil justice system. A bad decision can have far-reaching consequences and will likely haunt you for years. To avoid this, study all the available, relevant data, consult with the right experts, and finally, determine your chances of meeting the burden of proof on all the issues that will come up at trial.

Notes

(1.) Frances Cowan et al., Origin and Timing of Brain Lesions in Term Infants with Neonatal Encephalopathy, 361 LANCET 736 (2003).

(2.) Jeffrey Phelan, Nucleated Red Blood Cells: A Marker for Fetal Asphyxia?, 173 AM. J. OBSTETRICS & GYNECOLOGY 1380 (1995).

(3.) AM. COLL. OBSTETRICIANS & GYNECOLOGISTS, NEONATAL ENCEPHALOPATHY AND CEREBRAL PALSY: DEFINING THE PATHOGENESIS AND PATHOPHYSIOLOGY (2003).

(4.) See, e.g., Jeffrey Phelan et al., Intrapartum Fetal Asphyxial Brain Injury with Absent Multiorgan System Dysfunction, 17J. MATERNAL-FETAL MED. 19 (1998); see also DovApfel, Keep "Junk Science" out of Cerebral Palsy Cases, TRIAL, May 2004, at 46.

RELATED ARTICLE: Professional Negligence Section improves, updates member benefits.

Over the years, the Professional Negligence Section has gained a reputation for providing its members with cutting-edge education programs, invaluable networking opportunities, and other top-flight, litigation-support services.

"The section tries to provide a resource for the members for whatever questions they may have," said Section Chair Jim Perdue Jr. of Houston.

But the group is determined not to rest on its laurels. Perdue said the section has recently added or upgraded several benefits to provide even greater service to the group's 2,300 members. For example, the section recently initiated a project to address expert witness intimidation, Perdue said. The group is collecting legal research on witness-tampering laws around the country and will make the information available through the section's online document library on a continuing basis.

The library contains hundreds of litigation-related materials for professional negligence practitioners. For example, members can download questions for an initial client interview in a birth trauma case, a reference guide on medical testimony, and countless motion briefs and other court filings submitted by their peers.

The document library has been updated and is now more user-friendly. "We've improved the navigation of it in the last couple of years," Perdue said.

At ATLA's annual conventions, the group hosts live education seminars specifically targeted to its members' interests and needs. At this year's seminar, on July 26 in Toronto, attendees will absorb practice tips on topics such as drafting effective opening statements and protecting a case from "bad facts."

Other long-standing section benefits include a newsletter that keeps members up-to-date on current issues and section news; a free subscription to ATLA's Professional Negligence Law Reporter; and an opportunity to share litigation strategies with other members via the section's list server.

Overall, Perdue said, the section aims to respond to members' need for "open communication and networking."

The section's other officers are Chair-Elect James Gustafson of Tallahassee, Florida; Secretary Brian McKeen of Detroit; and Treasurer Bruce Braley of Waterloo, Iowa. Donna Rostant of Fairfax, Virginia, is the newsletter editor, and James Frickleton of Kansas City, Missouri, is the section's immediate past chair.

Annual membership dues are $130. To join or for more information, contact ATLA Sections at [phone], ext. 290, or visit the ATLA Sections home page at www.atla.org/sections.

CHRISTOPHER D. BERNARD is a partner at Koskoff, Koskoff & Bieder in Bridgeport, Connecticut.