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Jury verdict for Dr. who delivered baby with CP affirmed.

DOES THE FACT THAT A BABY IS BORN WITH CEREBRAL PALSY OR OTHER BIRTH-RELATED CONDITION NECESSARILY MEAN THAT THE PHYSICIAN DELIVERING THE CHILD WAS NEGLIGENT? Not necessarily, as this Florida case illustrates. In today's hyper-litigous society parents of babies born with cerebral palsy and other birth-related conditions all to often are all to quick to blame the delivering obstetrician with for their child's condition.

DANIEL DUSS WAS DIAGNOSED WITH CEREBRAL PALSY SHORTLYAFTER HIS BIRTH ON DECEMBER 3, 2002. In 2003, a lawsuit was filed on his behalf alleging that the obstetrician who delivered him, Dr. Martin A. Garcia, was negligent in using a fetal vacuum extractor during delivery, and that his negligence caused Daniel to sustain a brain injury, leaving him with cerebral palsy. When the case made its way to trial on August 2010, after earlier ending in mistrial, the plaintiff put on four medical experts - one on standard of care and three on causation. The gist of their testimony was that Dr. Garcia breached the standard of care by needlessly using the vacuum extractor six times to deliver Daniel, and that his actions caused Daniel to suffer an ischemic stroke which in turn, caused brain injury. The defendant's experts testified that Dr. Garcia's use of the vacuum extractor fell within the standard of care, that use of the device cannot cause an ischemic stroke, and that Daniel's strokes and brain injury resulted from a placental abnormality. The jury rendered a verdict in favor of the defendants, answering the question, "Was there negligence on the part of [Dr. Garcia] which was a legal cause of loss, injury, or damage to Daniel Duss?" in the negative. The trial court entered final judgment accordingly. Daniel's Estate appealed, seeking a reversal of the final judgment and a new trial on two grounds. First the Estate argued that the trial court incorrectly excluded expert testimony establishing that Dr. Garcia's breach of the standard of care created obstetrical conditions known to increase the likelihood of the type of neurological injury Daniel suffered. The Estate thus was unable to establish a link in the chain of causation between Dr. Garcia's negligence and the ischemic Stroke [Daniel] ultimately suffered." Second, the Estate asserted that the trial court allowed the defendants to improperly bolster their experts' opinions on causation using authoritative publications. In so doing the Estate argued, the court effectively diminished the credibility of the testimony of its experts' opinions on the issue of whether the use of the vacuum extractor was the proximate cause of Daniel's injury.

THE FLORIDA COURT OF APPEALS, FIRST DISTRICT, AFFIRMED THE JUDGMENT OF THE LOWER COURT IN ENTERING JUDGMENT ON THE JURY VERDICT FOR THE DEFENDANTS. The court held, inter alia, that the trial court correctly precluded the Estate's standard of care expert, Dr. Schifrin, from testifying that Dr. Garcia's alleged breach of the standard of care created circumstances from which brain injury to a newborn likely occurs. Such testimony went to causation, and Dr. Schifrin was not qualified to give an opinion on that subject. Further, the court found that the trial court had not erred when it permitted the allowed publications into evidence which corroborated testimony by the defendants' experts, Drs.. Thorp and Schwartz. Finding no error by the trial court, the court affirmed the final judgment on appeal.

THE COURT RECOGNIZED THE FACT THAT THERE HAS BEEN A HUGE NATURAL EXPERIMENT OVER THE PAST 60 YEARS SINCE THE INTRODUCTION OF VACUUM EXTRACTORS. The court went on to note that thousands of babies are delivered with the help of vacuum extractors year after year without incident. Accordingly, the court reasoned that given the extraordinary numbers of babies born with the help of vacuum extractors, and given the rarity of intrauterine stroke, which is about one in a thousand, if vacuum extraction were a cause, that would have been easily detectable. The court observed that when asked to explain to the jury why he did not believe the vacuum extractor caused Daniel's ischemic stroke, Dr. Thorp responded: Well, one is the huge natural experiment that's been done with thousands of babies being born via vacuum extraction and no association-with stroke. Secondly, in Daniel's case there were risk factors for in utero stroke, his mom's preeclampsia and his placental pathology that demonstrated thrombi within the baby's clots within the baby's vascular spaces which is associated with stroke. The court was further impressed by the testimony of the defendants' expert, Dr. Schwartz, a placental pathologist and epidemiologist, who testified that the preeclampsia, which Daniel's mother developed during pregnancy, causes a woman's uterus to become incapable of supplying an optimal amount of blood to the placenta. The diminishment of blood supply can be undetected weeks before the mother shows signs of preeclampsia. Based on the mother's preeclampsia, Dr. Schwartz opined that Daniel's brain injury resulted from chronic uteroplacental malperfusion and from the "hypercoagulable state" of his blood. Duss v. Garcia,1D10-5460 FLCA1 (1/6/12)-FL
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Publication:Medical Law's Regan Report
Date:Mar 1, 2012
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