In recent years, plaintiff’s lawyers have increasingly pursued claims alleging physician malpractice in the delivery of an infant. In many of those cases, plaintiff’s attorneys and their hired experts would argue that the very nature of the injury was in and of itself the evidence of negligence – in effect, a quasi claim of res ipsa loquitor. At the beginning of this wave of litigation, plaintiffs found some success in claiming that any injury to the brachial plexus, whether permanent or transient, had to have resulted from negligence.
Over time, as a result of numerous studies performed by the obstetrical and gynecological community, the tide has begun to turn. In the case of transient injury fewer plaintiffs’ attorneys attempt to make a claim that injury of itself is the evidence of negligence. Unfortunately, much in the same way mesothelioma is seen as absolute evidence of asbestos exposure and causation, the existence of permanent brachial plexus palsy is still offered to juries across the United States as absolute evidence of physician error.
After mostly sitting on the sidelines for decades in the debate over whether permanent brachial plexus injuries were evidence of negligence per se, The American College of Obstetrics and Gynecology has very recently published a summation of relevant studies regarding brachial plexus injuries in the birth process, concluding that the injury in and of itself is not sufficient evidence to assume negligence in cases of permanent brachial plexus injury.
In a recent case tried by this office, an executive summary, drafted by the American College of Obstetrics and Gynecology task force on Neonatal Brachial Plexus Palsy, regarding the risks, causes and outcomes of this phenomenon was offered into evidence by the defense in support of a physician in a shoulder dystocia case. The document was properly supported, out of the hearing of the jury, by two defense experts, both of whom referred to the summary as an authoritative document setting forth succinctly the opinions regarding those issues by the relevant medical community. The judge denied the evidentiary offering due to the fact that the executive summary was only a summary and was not in and of itself the final document. (At the time of the trial in March of 2014, the final document had not yet been published.) Fortunately, we were able to obtain a defense verdict, even absent this testimony, and in the face of Plaintiff’s main argument at closing that the existence of permanent injury can only mean negligence.
Since that trial, the American College of Obstetricians and Gynecologists has published the full document entitled Neonatal Brachial Plexus Palsy. This document is exceedingly important and, if not the first, is certainly the most definitive statement by the American College of Obstetricians and Gynecologists regarding this issue. This paper sets forth the most comprehensive, retrospective review of the medical studies and opinions regarding this incredibly difficult medical emergency. The medical community has provided lawyers defending these cases with a strong tool to combat expert testimony that the existence of injury in and of itself defines negligence.
The article is published in several chapters, the most important of which for purposes of defense of these cases is Chapter 4. There, the authors address head-on plaintiffs’ theories regarding causation. In short, the American College of Obstetricians and Gynecologists has determined there is strong evidence that maternal forces alone, or in conjunction with physician applied forces, cause injuries of this type. They have concluded that each case must be reviewed in its totality, and claims proffered by plaintiffs’ counsel that permanent injury in and of itself means negligence are illegitimate and not supported by the medicine.
A copy of Neonatal Brachial Plexus Palsy can be ordered from ACOG by calling 800-762-2264 or by going on their website www.acog.org.