Here's what appears to be a detailed and illuminating case study which reflects, I suppose as well as anything else would, why I think "liability" reform is the principled way forward in the medical malpractice debate, and not necesarily "damages" reform. This article comes from a recent "Contemporary OB/GYN". But some of you medical-types need to do me a favor and define/explain what some of the terms mean for me. They are: 1. gravida 2 para 1 2. estimated date of confinement 3. external version of a fetus in breech position (does this mean move fetus from breech to vertex position manually from the outside?) 4. is "floppy" a medical term? 5. occult cord prolapse. What is that? 6. high arched pallate, prominant alveolar ridges 7. What does Hypoxia indicate? I imagine many of you will want to know why the jury was not permitted to hear evidence of the family history of mental ******ation. Frankly i don't know why - but i will try to find the rule and determine what its basis is. "Mark J. Aaronson, Esq., Andrew I. Kaplan, Esq." The allegation that an infant suffered "brain injury" during delivery is the most challenging and difficult to overcome, both for the defendant physician and counsel. In many cases a verdict that seems inconsistent with the evidence results when the jury's overwhelming sympathy for the infant and the difficulties posted by current laws on admissibility of family history and genetic evidence take precedence over reassuring tracings, thorough and appropriately timed progress notes, supportive Apgar scores and blood gas results, and lack of evidence of genetic or congenital anomaly. The Facts The plaintiff, an 18-year-old gravida 2 para 1 with an estimated date of confinement (EDC) of October 27th, presented to the defendant hospital on October 20th for external version of a fetus in breech presentation. Of significance, the mother had gained only 11 lb during the pregnancy and an October 14th ultrasound confirmed a breech presentation and a fetus "slightly small" for gestational age (SGA). The admitting history recorded by the nurse-midwife on the date of the external version indicated the mother had no contractions and no bleeding, and that the attending physician had successfully performed the version to vertex under sonographic guidance. After the procedure, spontaneous labor was noted, and the plaintiff experienced contractions every 3 to 4 minutes. Vaginal examination revealed that she was 90% effaced, 1-cm dilated, and -3/-2 station. Artificial rupture of membranes revealed clear fluid. At 12:45 pm, the nurse-midwife noted contractions every 5 to 7 minutes that lasted for 40 seconds, with a fetal heart rate between 140 to 160 beats per minute (bpm) on internal fetal scalp electrode. At 1:15 pm, the nurse's note indicated prolonged decelerations of 60 bpm for 3 minutes, the patient was turned on her left side, and 10 L of oxygen was administered. The note also documented a change in amniotic fluid from clear to meconium-stained. The nurse-midwife and attending were notified and at bedside and the nurse-midwife noted quick recovery in FHR with scalp stimulation. At 1:26 pm and 1:35 pm, the attending who performed vaginal examinations noted a fetus with compound presentation, and this was followed by a 1:50 pm note by the nurse, who documented prolonged decelerations to 70 bpm, which lasted 70 seconds. A sterile vaginal examination by the nurse-midwife detected a questionable occult cord prolapse and the attending was notified. Because of the nonreassuring FHR tracing, the patient was prepared for cesarean delivery. At 2:00 pm, the patient was transferred to the OR, anesthesia was begun at 2:15 pm, and the first incision was made at 2:19 pm. The infant, delivered at 2:23 pm, weighed 5 lb, 1 oz with Apgars of 1, 8, and 10, and was transferred to the neonatal intensive care unit at 2:40 pm. The NICU notes indicated the infant was born floppy and had meconium-stained skin. He was intubated and meconium was suctioned from below the cords. His initial heart rate of 66 bpm improved to 100 bpm after resuscitation, and he received naloxone. The infant was erroneously listed as AGA (average for gestational age) when, in fact, he was actually SGA. Cord blood gases revealed acceptable pH and bicarbonate values (venous pH 7.32, HCO3 30) and the initial blood gas taken in the NICU at 3:32 pm had a pH of 7.38, CO2 of 44, and an O2 of 213 on 100% oxygen, with HCO3 of 26. No tremors or seizure activity were noted, and the newborn's cultures were negative. Genetic consults were obtained when it was noted that the infant had dysmorphic features of prominent forehead, prominent alveolar ridges, and high-arched palate. His chromosomal studies were normal and U/S of the brain revealed slight fullness of the left lateral ventricle that was deemed within normal limits. The infant was discharged home on October 25th and his failure to thrive and "small stature syndrome" were investigated by several institutions, but no determination of the etiology was ever made. The Allegations The plaintiff alleged that the failure to perform an earlier cesarean delivery resulted in birth hypoxia sufficient to cause mental ******ation. Discovery The discovery process revealed that the plaintiff mother had an older child who had no developmental disabilities, but that the mother's older sister had two children who were mentally ******ed. The plaintiff's expert pediatric neurologist obtained that history from the mother and included it in his report about physical examination of the infant plaintiff. This information was also found in multiple records of the infant's treatment, and thus was included in the materials to be submitted into evidence at the time of trial. Neither the physicians who treated the infant after birth nor those who evaluated him to determine whether his condition had a genetic etiology could determine the specific cause of his problems, but they noted that a genetic or congenital etiology could not be excluded. None were of the opinion that the infant's difficulties were related to the birthing process itself. At 3 years of age, the infant exhibited skills of a 9-month-old child. The Trial At the trial, the plaintiff's expert ob/gyn testified that the attending physician departed from good and accepted practice in failing to perform a "crash" cesarean delivery. He did not criticize the attending's care between 12:00 pm and 1:55 pm on October 20th, but testified that the attending departed thereafter by not delivering the infant within 3 to 4 minutes after the second severe deceleration. On cross-examination, however, this expert conceded that if the normal cord pH was valid, it absolutely spoke against hypoxia during delivery. In fact, he conceded that the presence of a normal cord pH militated against hypoxia in the hour prior to delivery. The plaintiff's pediatric neurology expert admitted that the cord blood gas results were "inexplicable" and seemed to rule out the theory of hypoxia during birth. He further conceded that the infant's NICU course was normal and spoke against a significant hypoxic insult. This expert's theory was that the infant had "secondary microcephaly," which supported his opinion that during delivery, the infant suffered hypoxia significant enough to cause mental ******ation. That theory, however, contradicted the opinion of all of the physicians who had treated the infant after the birth that the child was born microcephalic. To support his opinion, the pediatric neurologist mixed and matched results from the Ballard scale and an intrauterine head growth circumference graph to arrive at the conclusion that the record of the infant as "AGA" and not "SGA" was accurate. At one point, this expert testified that if the infant was born 3 or 4 minutes earlier, he would have been "okay," but at another time, he used 15 minutes as the critical period. Before the trial began, the court ruled that the family history of mental ******ation could not be put before the jury. The plaintiff's pediatric neurologist admitted, however, that he had obtained that history from the mother and included it in his report on the physical examination. As such, defense counsel was allowed to sum up before the jury on the issue over plaintiff counsel's objection. However, the jury was specifically instructed to disregard any testimony on genetics or family history when they subsequently were charged on what evidence they could consider while deliberating. continued next page. . . .