Cerebral Palsy: New Obstacle to Proving Causation

A plaintiff who alleges that lack of oxygen during a botched delivery caused a child's cerebral palsy might have a new obstacle to proving causation, if juries give credence to a recent report commissioned by two major medical organizations.

The report, issued by the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP), contains a model for determining if the neurological impairment originated at the time of labor and delivery ' which may have been caused by medical malpractice ' rather than having been caused by other factors, such as a pre-existing condition. The study contains four 'must' factors and five others of collective importance.

According to a press release issued by the ACOG, 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, says the ACOG, the report confirms that hypoxia (or 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 this 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 adds.

Though released just last month, the report has already been used by a defense attorney when cross-examining an expert witness in a Los Angeles courtroom. Nichols v. Good Samaritan Hospital, No. BC243634.

Six out of the top 11 medical malpractice awards last year were cerebral palsy cases, according to The National Law Journal's report of the top 100 verdicts of 2002. About 8000 children are diagnosed with the condition each year.

Defense attorneys see the report as a valuable weapon. Plaintiffs' lawyers largely liken it to Good Housekeeping awarding itself its own seal of approval. The report contains no new science, but purports to have reviewed the field's clinical-study literature from which its conclusions were drawn.

'What the document suggests is that somewhere between 6% and 10% of cerebral palsy is from intrapartum asphyxia (fetal loss of oxygen at the time of labor and delivery),' says Hankins. 'Of those, maybe I can save 50%, or at least lessen the damage, under optimal circumstances.' Hankins, a physician, is also a professor and vice chairman of the department of obstetrics and gynecology and chief of the division of maternal-fetal medicine at the University of Texas Medical Branch in Galveston.

'That's ridiculous,' countered plaintiffs' attorney Alan Figman of New York's DeBlasio, Figman & Epstein. He won a $25.8 million cerebral palsy verdict last February in Rolnitzky v. Schwartz, No. 13284/99. 'You cannot apply a statistical approach to a series of events without analyzing each one individually,' Figman added. 'How could they know that? This one is avoidable, [that] one isn't. A report is useless in determining whether a particular case falls within the 3% to 5%, even assuming that number is real.'

Mark Aaronson of New York's Aaronson Rappaport Feinstein & Deutsch, who has been trying brain-damage cases for more than 25 years, was up against Figman in Rolnitzky, which has post-trial motions pending

'If the study was out there last year, I would have asked their expert if they recognized ACOG or AAP ' presumably at least one of them would be a member ' and whether they recognized their studies, even if they disagreed with them,' Aaronson said. 'And if they said yes, I would have confronted them with the study. In New York, of course, if they say no to either of those questions, that's the end of the inquiry.' Aaronson also said that in other venues and in federal court, the report will be a potent weapon.

The plaintiff's attorney whose expert was confronted with the report,
hailed it.

'At least they've finally admitted that doctors can cause cerebral palsy,' said lawyer/physician Bruce Fagel of Bruce Fagel and Associates in Beverly Hills, CA, who had two of the 100 largest verdicts last year, one a medical malpractice cerebral palsy case. 'But it does not deal with intrapartum traumatic injury. Some of the things they say are truer, some are still wrong, but all in all, it will make my job easier, because they are no longer saying there is a single type of cerebral palsy and a single cause.'

The ACOG press release explaining the study is available online at http://www.acog.org/from_home/publications/press_releases/nr01-31-03-1.cfm. Further explanation of the study can be found at http://www.acog.org/from_home/Misc/neonatalEncephalopathy.cfm.

A plaintiff who alleges that lack of oxygen during a botched delivery caused a child's cerebral palsy might have a new obstacle to proving causation, if juries give credence to a recent report commissioned by two major medical organizations.

The report, issued by the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP), contains a model for determining if the neurological impairment originated at the time of labor and delivery ' which may have been caused by medical malpractice ' rather than having been caused by other factors, such as a pre-existing condition. The study contains four 'must' factors and five others of collective importance.

According to a press release issued by the ACOG, 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, says the ACOG, the report confirms that hypoxia (or 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 this 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 adds.

Though released just last month, the report has already been used by a defense attorney when cross-examining an expert witness in a Los Angeles courtroom. Nichols v. Good Samaritan Hospital, No. BC243634.

Six out of the top 11 medical malpractice awards last year were cerebral palsy cases, according to The National Law Journal's report of the top 100 verdicts of 2002. About 8000 children are diagnosed with the condition each year.

Defense attorneys see the report as a valuable weapon. Plaintiffs' lawyers largely liken it to Good Housekeeping awarding itself its own seal of approval. The report contains no new science, but purports to have reviewed the field's clinical-study literature from which its conclusions were drawn.

'What the document suggests is that somewhere between 6% and 10% of cerebral palsy is from intrapartum asphyxia (fetal loss of oxygen at the time of labor and delivery),' says Hankins. 'Of those, maybe I can save 50%, or at least lessen the damage, under optimal circumstances.' Hankins, a physician, is also a professor and vice chairman of the department of obstetrics and gynecology and chief of the division of maternal-fetal medicine at the University of Texas Medical Branch in Galveston.

'That's ridiculous,' countered plaintiffs' attorney Alan Figman of New York's DeBlasio, Figman & Epstein. He won a $25.8 million cerebral palsy verdict last February in Rolnitzky v. Schwartz, No. 13284/99. 'You cannot apply a statistical approach to a series of events without analyzing each one individually,' Figman added. 'How could they know that? This one is avoidable, [that] one isn't. A report is useless in determining whether a particular case falls within the 3% to 5%, even assuming that number is real.'

Mark Aaronson of New York's Aaronson Rappaport Feinstein & Deutsch, who has been trying brain-damage cases for more than 25 years, was up against Figman in Rolnitzky, which has post-trial motions pending

'If the study was out there last year, I would have asked their expert if they recognized ACOG or AAP ' presumably at least one of them would be a member ' and whether they recognized their studies, even if they disagreed with them,' Aaronson said. 'And if they said yes, I would have confronted them with the study. In New York, of course, if they say no to either of those questions, that's the end of the inquiry.' Aaronson also said that in other venues and in federal court, the report will be a potent weapon.

The plaintiff's attorney whose expert was confronted with the report,
hailed it.

'At least they've finally admitted that doctors can cause cerebral palsy,' said lawyer/physician Bruce Fagel of Bruce Fagel and Associates in Beverly Hills, CA, who had two of the 100 largest verdicts last year, one a medical malpractice cerebral palsy case. 'But it does not deal with intrapartum traumatic injury. Some of the things they say are truer, some are still wrong, but all in all, it will make my job easier, because they are no longer saying there is a single type of cerebral palsy and a single cause.'

The ACOG press release explaining the study is available online at http://www.acog.org/from_home/publications/press_releases/nr01-31-03-1.cfm. Further explanation of the study can be found at http://www.acog.org/from_home/Misc/neonatalEncephalopathy.cfm.