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By Damian D. Capozzola, Esq.
Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Tim Laquer, 2015 JD Candidate
Pepperdine University School of Law
News: The patient, an adult woman, was admitted to a hospital in early September 2002, approximately two months before her due date. She was diagnosed with preeclampsia by an obstetrician, and the obstetrician decided to induce labor rather than perform a caesarean section. While the patient was in labor the following day, a fetal heart rate monitor revealed that the baby was low on oxygen; however, the obstetrician allowed labor to continue for an additional three hours. When the child finally was born, the umbilical cord was wrapped around his neck, which deprived him of oxygen and resulted in spastic diplegic cerebral palsy. The patient, individually and on behalf of her son, brought suit against the obstetrician and hospital. She alleged that both were negligent in her treatment. The defendants denied that any malpractice had occurred. The jury found the obstetrician and hospital negligent and awarded the patient and her son $20.6 million in damages.
Background: The patient was an adult woman who was 32 weeks pregnant in early September 2002. She suffered from preeclampsia, a dangerous pregnancy complication that is characterized by high blood pressure and signs of damage to other organ systems. Despite this finding, the obstetrician in charge of the patient’s care decided to continue with a vaginal delivery rather than perform a caesarean section. The following day, the woman was given Pitocin (oxytocin) to induce labor, and the fetus was externally monitored. After this monitoring, a physician ruptured the woman’s membrane to speed the labor and delivery process, and the monitoring was switched to internal monitoring. Eventually, the heart monitor indicated that the fetus was extremely low on oxygen, but the obstetrician did not opt for caesarean section. The physician allowed labor to continue for an additional three hours. When the child finally was delivered, he was born with a nuchal cord: the umbilical cord was wrapped tightly around his neck. This situation caused the infant to be deprived of oxygen. He later was diagnosed with periventricular leukomalacia (PVL), which is the death of white matter in the brain due to softening of the brain tissue caused by lack of oxygen or blood flow to the area. He subsequently developed spastic diplegic cerebral palsy. Experts stated that the child is not mentally impaired, but he has difficulty moving his legs and arms and will always require a wheelchair along with numerous surgical and other medical treatments related to his conditions.
The patient, individually and on behalf of her child, brought suit against the obstetrician and hospital. She claimed that the obstetrician was negligent for failing to perform a caesarean section, which was necessitated by the low oxygen signs, and that the hospital was responsible for the obstetrician’s behavior. The plaintiffs’ experts, including an obstetrician/gynecologist specializing in high-risk pregnancies and deliveries and a neonatologist, explained the series of events that led to the fetus’ deprivation of reserves that normally protect fetuses during labor. The defense relied on an umbilical cord gas analysis that reportedly was within the normal range. They attempted to counter by arguing that the baby was not injured at birth based on this evidence and a blood gas analysis from blood taken shortly after birth. Furthermore, the defense argued that the PVL occurred as a result of his prematurity and magnesium that the mother received at the hospital to prevent seizures related to preeclampsia. The jury found the obstetrician and hospital jointly and severally liable and awarded a total of $21 million in damages: $18 million for future medical expenses, $2 million for future lost wages, and $1 million in non-economic damages. After the verdict, the judge reduced the $1 million in non-economic damages to $605,000 based on Maryland’s medical malpractice damage cap. On appeal, the court found that the injury was foreseeable as a result of a healthcare provider’s failure to respond to severe non-reassuring fetal heart tracing data and a nuchal cord and that the plaintiff’s evidence was sufficient to sustain the jury verdict.
What this means to you: First, note that this case, like many medical malpractice cases before it and many that will follow, came down to a "classic battle of the experts," according to the Court of Special Appeals of Maryland. In many medical situations, there is no clear, definitive answer or one single correct approach. This situation can be particularly evident when there are tests that must be interpreted, such as the fetal monitoring in this case. Where there can be multiple interpretations, plaintiffs and defense can have experts who appear in court and vigorously support their respective positions on why their side’s interpretation was the correct one. Thus, a physician or hospital’s defense might rest completely upon an expert’s testimony in the eyes of the jury.
Having an expert who is more credible or believable (or even likeable) than the other side is essential. It is extremely important to select a strong expert or team of experts, and this selection should be done with competent counsel early in preparation for trial.
There are many factors to consider when selecting an expert, and choosing the most published or most famous expert is not always the best decision. An expert with a balanced resume, rather than one who only works as an expert, is an important consideration. Anyone in the field with a deep understanding of the subject matter and a strong ability to communicate can be a suitable candidate, and the more the jury can understand the expert, the better.
Secondly, a major issue in this case was related to causation: whether the obstetrician’s failure to perform a caesarean section resulted in the injuries or they were caused by a different condition. Causation is a necessary element of any medical malpractice claim, and the plaintiff must prove that the defendant’s wrongful acts factually and proximately caused the injury. Proximate cause is a tricky legal issue, and defendants can be protected if other events occur between their actions and the injuries to some extent. However, here the defendants attempted to argue against cause-in-fact. They claimed that the infant’s injuries after birth were not caused by the delivery, but rather were caused by his prematurity and magnesium that the mother received at the hospital to prevent seizures related to preeclampsia.
Causation can be an extremely valuable and effective defensive tool if it applies and if the jury can be convinced of its application. If a physician or hospital does not meet the standard of care and the patient gets injured, the physician or hospital still might avoid liability if the injury actually was caused by something else. Discovery and investigation are thus crucial to proving causation. If the defense can find a different source that actually caused the injury rather than the defendant’s wrongdoing, then the defendant will not be held liable. This situation means that if a patient becomes injured, it is not necessarily medical malpractice, as there might be one or a number of other things that caused the injury rather than a physician’s or hospital’s actions.
This case additionally raises some important procedural notes. First, many states, including Maryland in this case, have maximum amounts awardable for medical malpractice cases. Most of these damage caps affect "non-economic damages," which are the part of the jury award that compensates plaintiffs for pain and suffering, anxiety, discomfort, loss of enjoyment of life, etc. These are types of damages that are not easily calculated in a specific dollar amount, unlike medical bills, which are economic damages. These caps are statutory in nature, and some allow for inflation by increasing the cap each year or a period of years. For physicians and hospitals, if liability is found but an exorbitant amount of non-economic damages are awarded, it is important to research these statutes. There might be a possibility for reducing the amount of damages based on such, and this reduction can be significant as juries might award runaway damages for vague items such as "pain and suffering." In this case, the reduction was almost $400,000, which is not an insignificant amount.
Second, courts of appeal apply varying levels of review based on what specifically is being challenged in the case. If the appellant is challenging an issue of law, the appellate court can review such issues "de novo," meaning anew, and the court addresses the concern with no deference to the trial court’s decision. However, if the appellant is challenging a factual issue or the sufficiency of the evidence, appellate courts give the trial court a far higher level of deference. They will review for "substantial evidence," which is actually a misnomer because the appellate court only looks to see if there is a reasonable basis for the jury for concluding how it did. It is thus far more difficult to challenge a jury finding based on the sufficiency of the evidence, and defendants who lose at the trial level must consider this standard of review when deciding whether to appeal, as the appellate process (like the trial process) is highly involved, time-consuming, and expensive. Be sure to work closely with counsel to understand damages caps and standards of review as they might impact your litigation matters.