Cerebral palsy report: It’s no panacea, but it could be major defense in court

Plaintiffs likely to challenge report as biased

A recently issued report will be a boon to defendants in cerebral palsy malpractice cases, but it won’t eliminate this brand of high-dollar cases or create an insurmountable burden for plaintiffs’ attorneys, experts say.

The report, from the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP), is indisputably good news for any provider threatened by charges that a cerebral palsy outcome is birth-related though the ultimate value remains to be seen.

The ACOG/AAP report concludes that the majority of newborn brain injury cases do not occur during labor and delivery. Rather, most instances of neonatal encephalopathy and cerebral palsy are attributable to events occurring before labor begins.

Neonatal encephalopathy is a condition characterized by abnormal consciousness, poor muscle tone and reflexes, difficulty initiating or maintaining breathing, or seizures, and may or may not result in permanent neurologic impairment. In contrast, cerebral palsy is a chronic developmental disability of the central nervous system recognized by uncontrollable movement and posture.

Risk managers should welcome the report as a significant addition to their defense strategies for cerebral palsy, says R. Stephen Trosty, JD, MHA, CPHRM, director of risk management for the Mutual Insurance Corp. of America in East Lansing, MI. While he still wants to see evidence that the report is scientifically valid, Trosty says he expects the report to be very significant.

"I think it’s fantastic, because up to this point there hasn’t been a scientific study to prove what innately a lot of people believed was true. Now there is," he says. "Hopefully, it will prove credible enough to become strong evidence."

If so, the evidence would be adopted eagerly by defense attorneys and risk managers grappling with these difficult cases. Trosty notes that cerebral palsy cases have always been especially challenging, partly because the economic damages for lifetime medical care can be astronomical and also because juries tend to have great sympathy for the children.

"If you look at all the malpractice suits brought, those alleging cerebral palsy have the greatest percentage of plaintiffs succeeding," he says. "It always ranks first or second in the highest awards granted. These cases are not exceedingly high in frequency, but they’re very, very high in severity and the percentage of wins for the plaintiffs."

Data from 2001-02 show that, on average, plaintiffs tended won 39% of cases across the board, but they won in 54% of cerebral palsy cases, Trosty says.

Report says 90% of CP cases not birth-related

The report, Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology, gives evidence that the vast majority of neonatal encephalopathy and cerebral palsy originate from developmental or metabolic abnormalities, autoimmune and coagulation defects, infection, trauma, or combinations of these factors. The report has received the endorsement of six organizations, including the National Institute of Child Health and Human Development of the National Institutes of Health and the Centers for Disease Control and Prevention. Newborn encephalopathy and cerebral palsy are associated with significant mortality rates and long-term morbidity and have been central in the assignment of blame in obstetric litigation.

However, the report confirms that hypoxia (insufficient supply of oxygen) during labor or delivery is not a significant cause in most of the cases of neonatal encephalopathy or cerebral palsy, with less than one-quarter of infants with neonatal encephalopathy having any evidence of hypoxia during labor. The report also concluded that an underlying event before labor was the primary factor for the adverse outcome in 70% of neonatal encephalopathy cases and contributory in another 25%.

A helpful aspect of the report is that it lists the criteria to define and evaluate the probability that encephalopathy and cerebral palsy were a result of actions during labor, says Gary D.V. Hankins, MD, chair of the ACOG task force that developed the report.

"By helping to understand the causes of neonatal encephalopathy and cerebral palsy, our efforts may lead to clinical interventions that will reduce the rates of these serious pathologies," he says.

For years, adverse neurologic outcomes of pregnancy, including cerebral palsy and neonatal encephalopathy, have been assumed to be the effect of events occurring during childbirth. In the face of a bad outcome, many faulted OB/GYNs. That should change now, says ACOG president Charles B. Hammond, MD.

"We now know that less than 10% of cases of neurologic impairment in newborns are the result of events occurring in labor and, of these, the majority were not preventable. This report provides a better understanding of the causes of these two conditions and should serve as a valuable resource for the entire medical community, the courts, and for all those who care for infants and children with these disabilities," he adds.

Plaintiff will challenge report as biased

Trosty says the report provides, for the first time, scientific evidence that can be used to authoritatively show that defendant clinicians are not responsible for a child’s cerebral palsy.

"Prior to this, there really was nothing," he says.

That doesn’t mean the defense will be a slam-dunk from here on out. You still will have to establish the report as expert testimony, which means proving that it is scientifically valid. And the plaintiff’s attorney will be working hard to prove otherwise. Trosty expects plaintiff’s attorneys to argue that ACOG is biased in favor of its member physicians, producing a report intended to protect them from malpractice verdicts.

And that is exactly what Andrew Slutkin, JD, says he plans to do. He is a partner with Snyder, Slutkin & Lodowski, a law firm in Baltimore that has represented nearly 50 plaintiffs in cerebral palsy cases over the past 10 years.

"ACOG has a history of trying to limit its members’ liability in birth trauma and other malpractice cases," he says. "So anything ACOG does is viewed with skepticism by plaintiffs’ attorneys. Attorneys bringing these cases, including myself, usually portray ACOG as simply trying to protects its doctors."

The same thing happened years ago when ACOG published Technical Bulletin 156, which aided cerebral palsy defense by establishing four criteria that had to be met for relating cerebral palsy to the birth process. That report provided another hurdle for the plaintiff in some cases, but it wasn’t the end cerebral palsy lawsuits.

"In a case where there are not good facts supporting the plaintiff, this report will help the defense," Slutkin says. "But in a case where the facts are good, where there is clearly fetal distress and they’re not delivering the child in a timely manner, then it could be less useful. It will depend on the facts of the case."

He says the ACOG report will be another hurdle for the plaintiff, but it won’t end or even significantly slow the rate of cerebral palsy cases.

"It’s one more thing to argue about in court," Slutkin says.

Trosty says it is important for risk managers to be aware of the study and actually have a copy. Any physician involved in a cerebral palsy case also should study the report, along with all members of the defense team.

"Aside from eliminating 90% of the cases as not related to what the doctor did, equally important is the fact that the outcome that occurred could not have been prevented," he says. "So not only was it not caused by something the physician did, there was no intercedent action that could have been done to prevent this outcome. Again, this is the first time we have something scientific that establishes this."

The report was developed by an ACOG task force formed in 1999 and was co-authored by the AAP. The task force was composed of a multispecialty panel of medical experts representing the specialties of maternal-fetal medicine, pediatrics, neuroepidemiology, radiology, and pathology. The report complements and updates a 1999 consensus statement by the International Cerebral Palsy Task Force that was published in the British Medical Journal.

AAP president E. Stephen Edwards, MD, issued a statement saying, "The AAP welcomes this important report. It confirms that most brain injuries are not due to the events occurring during labor, delivery, resuscitation, or treatment immediately following birth. We remain concerned about infants with neonatal brain injury, and will continue our commitment to our Neonatal Resuscitation Program that assures pediatricians and other medical professionals receive the most up-to-date instruction in resuscitation skills."

The report was also endorsed by these professional organizations: the March of Dimes Birth Defects Foundation, the Society for Maternal and Fetal Medicine, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, and the Society of Obstetricians and Gynaecologists of Canada. The Child Neurology Society recommends the report as a valuable reference tool. Trosty says those endorsements could be important in deflecting charges that ACOG is biased and only trying to protect its members.

"The report can be a big benefit, but we don’t know yet if it will be the saving grace. Ultimately the question is how well you can convince a jury that this is scientifically valid," Trosty says. "And you also will have to show that this particular case is not among the 10% that can be caused by the physician’s actions. Plaintiffs are suddenly going to start arguing that their case is among that 10%."