evidence.com
Since this comment was written in 1994, the legal defenses to birth related brachial plexus malpractice claims have changed to conform to the applicable standard of care. Medical literature authored by Gonic speaks to the amount of force necessary to cause a brachial plexus injury. This has given rise to practitioners facing a medical malpractice action testifying that they did not apply a force sufficient to cause the injury. Other literature continues to blame birth related brachial plexus injuries on the forces of labor and/or fetal mal formation. These articles, published in the leading scientific journals, are always based upon the review of the observations of the treating Obstetrician, the physician who delivered the child with a brachial plexus injury. These articles have never questioned the treating physicians observations as being influenced by the doctors personal and financial self-interest in not being found the cause of the injury. Forth this reason alone, the conclusions reached by these articles must be questioned as must the credibility of the physicians relying upon such findings.
It is also very noteworthy that surgical developments in the repair of damaged brachial plexus nerves at birth is now more then ever a viable option for the care and treatment of brachial plexus birth related injuries.
Since it's original Internet publication in 1995, this comment has been viewed over 20,000 times by people in over 20 countries.
Douglas M. Wade, Esq.
November, 2001
The purpose of this writing is to provide with the experience gained by Evidence Technologies, Inc. in the presentation and trial of Brachial Plexus/Erb's Palsy medical malpractice actions. In the six months prior to this writing, E.T.I. was involved in nine cases where obstetrical mismanagement gave rise to a permanent Erb's Palsy and one case involving a temporary Erb's Palsy. E.T.I. has had opportunity to observe how different trial attorneys and law firms present Erb's Palsy related litigation. The following is an analysis of the defenses employed as well as suggestions which may assist in preparing for a birth related brachial plexus injury/Erb's Palsy medical malpractice trial.
Please note that the following represents the authors opinion only. E.T.I. in no way warrants or guarantees the materials contained herein.
Almost all
permanent brachial plexus injuries are birth related. Birth related brachial
plexus injuries are caused by the Obstetrician applying excessive downward or
upward lateral traction to the baby's head and neck once it has presented during
the course of delivery. In lay terms, the angle of presentation of the baby's
shoulder prevents the baby from fitting through the birth canal. It is the position
of the baby in relation to the mother which is known medically as Shoulder Dystocia.
To apply upward or downward lateral traction, the Obstetrician positions his/her
hands on top of and below the baby's head and pulls the head down and out in
the hopes of freeing the baby's shoulder which is blocked from delivery through
the birth canal by the pubic symphysis.
Note: This animation is in Quicktime format. You will need the Apple Computer Qicktime Plug-in to view the animation. The animation will start automatically once it has been downloaded.
Shoulder Dystocias are either bilateral or unilateral in nature. The dystocia is bilateral when one of the baby's shoulders is prevented from entering the birth canal by the pubic symphysis while the other shoulder is likewise prevented from entering the birth canal by the mother's sacral promontory. A unilateral dystocia occurs when one of the baby's shoulders is prevented from entering the birth canal by the pubic symphysis.
Short of an Obstetrician placing a laparoscope with a camera inside the mother's womb, there is no way to determine whether a Shoulder Dystocia is bilateral or unilateral. As a plaintiffs attorney, it will be tempting to characterize the Shoulder Dystocia as bilateral in nature and thereby argue that because the Shoulder Dystocia was bilateral, the physician should have recognized this more severe impairment to viginal birth and acted to correct the problem in a more adroit manner. If the argument is made that the Shoulder Dystocia was bilateral, anticipate that defense expert medical witnesses will disagree with your expert witnesses and testify that the Shoulder Dystocia was unilateral in nature. Although the bilateral v. unilateral Shoulder Dystocia argument can be made at time of trial, E.T.I. recommends conceding that the Shoulder Dystocia was unilateral in nature in all but severely macrocosmic babies. For the purposes of this writing, severe macrosomia is defined as a delivery weight in excess of 5,000 grams. For cases where the baby's weight less then 5,000 grams, the bilateral v. unilateral argument merely serves to complicate the thrust of your case. However, in cases where(1) where the estimated fetal weight indicates severe macrosomia, (2) the baby in fact turned out to be severely macrocosmic or (3) the mother was an uncontrolled diabetic, we recommend arguing that the Shoulder Dystocia was in fact bilateral and the proper course of Obstetrical management was either performance of a Zavanelli Maneuver or a scheduled Caesarian section.
The Zavanelli maneuver involves pushing the babies head back into the
uterus upon recognition that other management techniques will not relieve the
dystocia and performing a crash Caesarian section. It is noteworthy that proper
performance of this maneuver requires that the hospital where the birth occurs
be equipped for this procedure i.e. has adequate surgical suits and personnel
available. It is also noteworthy that in the entire United States, this procedure
is performed only once or twice a year or one to two times per every four million
deliveries.
It is not uncommon for defense attorneys to coach their clients to avoid the use of certain terms believed to evoke a less than favorable response from jurors. Of particular interest are the terms "blocked," "brachial plexus injury," "dystocia," "permanent injury," "palsy," and "malpractice." The defense bar has placed enough weight on verbiage to have suggested wording disseminated throughout the medical community by having it placed in one of the leading medical articles on Shoulder Dystocia.
Expect the defense to substitute "acts not below the standard of care" for "malpractice,"
and "impairment" or "palsy" for "brachial plexus injury" or "injury to the brachial
plexus," and "entrapment" for "blocked" and/or "dystocia." The following are
excepts of trial testimony:
To counter this tactic, bring Motions in Limine to clarify the terminology
used by physicians. If the motion is denied, point out to the jury in your opening
statement and closing arguments that the above-mentioned terminology is synonymous
and that the defense has used these terms to distort the truth.
There are
five defenses commonly used by defense counsel in brachial plexus/Erb's Palsy
birth injury cases. These defenses are: (1) "act of God," (2) fetal mal formation/mal
adaptation, (3) misstatement of the care and management rendered by the attending
Obstetrician, (4) misstatement of the time between differential diagnosis of
the Shoulder Dystocia and the time of delivery of the infant, and (5) the "Emergent
Situation" defense.
The "Act of God" Defense
The "act of God" defense is the primary defense used to defend claims of permanent
Erb's Palsy caused by the obstetrical mismanagement of a Shoulder Dystocia.
Simply put, this defense argues that the dystocia or the "impairment to normal
delivery" was "an act of God." In other words, God put the baby's shoulder in
such a position that it could not be delivered without assistance. When the
Obstetrician applied downward traction, he was merely doing his job, i.e. delivering
the baby.
Most plaintiff attorneys counter the "act of God" defense with expert medical testimony provided by an OB/GYN stating that excessive lateral traction is below the applicable standard of care and that the injury suffered by the infant was, in his expert opinion, caused by excessive lateral traction applied during birth. Typically, attorneys provide the expert with a blow-up of a drawing or two illustrating the position of the brachial plexus nerve in relation to the baby's neck and arm and the expert will use hand gestures to indicate excessive lateral traction. It should be expected that defense expert witnesses will testify that the defendant Obstetrician did not apply excessive lateral traction and that the injury to plaintiff was not birth related. The conflicting testimony between plaintiff and defense expert medical witnesses creates a credibility contest between defense and plaintiff expert medical witnesses.
Although it is tempting to believe that the experts you hire will be more dynamic
and credible than the defense experts, it is always preferable to try a case
on facts which support your case rather then gamble a verdict solely on witness
credibility. Determining an expert witnesses' credibility at the time of trial
is complicated as a witnesses credibility may be influence by numerous factors:
factors such as academic background, style of speech, level of preparation,
ability to cope with cross-examination, the attitude of the judge, witness order,
etc. In short, witness credibility is subjective and will vary depending upon
to many variables to predict months in advance of trial. However, providing
a tight, concrete case based upon detailed scientific fact will bolster your
experts credibility irrespective of the other factors. In short, give your experts
the ammunition they need to be persuasive.
The Fetal Mal Formation/Mal Adaptation Defense
The fetal mal formation/mal adaptation defense is predicated upon the notion
that the brachial plexus injury was not in fact caused by excessive lateral
traction but by "fetal mal formation" or "fetal mal adaptation." Fetal mal formation/mal
adaptation, as the name suggests, argues that the fetus suffered the injury
to the brachial plexus nerve prior to delivery. Fetal mal adaptation is caused
by a deformity in the mother's womb.
Deformities of the mother's womb are caused by the presence of a large tumor,
fibroid or cyst positioned so that it constricts the fetus' movements during
gestation thereby preventing normal development of the brachial plexus nerve.
Alternatively, the womb itself could be misshapen causing similar limitations
on fetal movement.
The fetal mal formation/mal adaptation defense is used because it provides an
explanation independent of the actions of the attending Obstetrician for the
injury to the brachial plexus. Expect that defense expert witnesses will testify
that the medical literature supports the fetal mal formation/mal adaptation
theory. We at E.T.I. do not believe that the relevant medical literature supports
this conclusion. The medical literature states that while mal formation is possible
and has been documented, it is a very very rare occurrence. The medical literature
puts forth the hypothesis that mal formation of the neck and shoulder almost
always results in spontaneous abortion.
Countering the Fetal Mal Formation/Mal Adaptation Defense
We at E.T.I. suggest that plaintiff attorneys have an Independent Medical Examination (IME) performed on the Mother immediately prior to the discovery cut-off date. During the IME, the Obstetrician/Gynecologist will take a medical history of the plaintiffs mother to determine if any of the baby's parents or their family members have deformed brachial plexus nerves. So long as there is no genetic history of brachial plexus injury in the family, it should be possible to exclude the mal formation theory at trial.
Also, during the IME the physician will examine the mother for fibroids, cysts
and tumors i.e. all possible causes of deformity of the mother's womb which
might act to constrict the movement of the fetus during gestation. Once the
IME has been performed, a Motion in Limine can be brought to exclude all references
to fetal mal formation/mal adaptation during trial on the grounds that there
is no basis in fact to suggest that fetal mal formation/mal adaptation was a
medical possibility in the immediate matter. The performance of an IME on the
mother, therefore, can prevent defense attorneys from raising the fetal mal
formation/mal adaptation defense. Elimination of this defense should significantly
simplify the trial.
Further Analysis of the "Act of God" and Fetal Mal Formation/Mal
Adaptation Defenses
It is very common for the defense to raise several or even all of the five defenses
at the time of trial. The "act of God" defense coupled with the "fetal mal adaptation/mal
formation" defense is among the most common defense combinations. It is frequently
used because it produces several results favorable to the defense. First, if
the jury is pre-disposed to believe that the defendant physician did nothing
wrong during the course of the delivery, these defenses provide three good excuses
for a defense verdict. (1) Only God positions baby's in a mother's womb. (2)
Fetal mal formation/mal adaptation is a scientific and possible cause of the
brachial plexus injury and accompanying Erb's Palsy. (3) Layering the "act of
God" and the fetal mal formation/mal adaptation defenses serves to create a
credibility contest between medical expert witnesses thereby removing the case
from trial on the merits of the medical issues.
The psychological effect on a jury of the layering of defenses is most interesting.
Upon polling after trial, jurors have indicated the following: (1) that they
accept the argument that the injury to the child was not birth related even
though on a balance of the probabilities they believed that the injury was "most
likely" birth related; (2) that they accepted the argument that the injury was
merely an "act of God" even though they believed that the injury itself was
birth related and in fact was caused by excessive downward lateral traction
applied by the defendant; (3) jurors accept the defense experts testimony that
the injury was not birth related. However, these jurors offered no explanation
as to the cause of the injury.
The best way to counter layering of defenses, a tactic which confuses the issues
to be decided by jurors, is simplification of the case. Wherever possible, eliminate
potential defenses before they can be raised by the defense.
The Distortion of Management Practices Employed by Defendant Obstetricians
The third defense in Brachial Plexus/Erb's Palsy cases is that defendants will lie as to what was done to manage the Shoulder Dystocia. Distortion of the nature of the care rendered lends itself to the "act of God" and "fetal mal adaptation" defenses because it adds a layer of credibility to both theories even though most attorneys are able to point out some, if not all, of the defendant physicians lies and exaggerations to a jury. E.T.I. employees have witnessed a trial where the defendant physician changed his story as to what he did to manage the Shoulder Dystocia between his deposition and his trial testimony and his trial testimony on day 1 and on day 2. Plaintiffs successfully impeached the defendant on his contradicting testimony and successfully convinced the jury that the injury was caused by excessive downward lateral traction. Despite these successes, the jury reached a defense verdict. Do not overestimate the weight catching a physician in an outright lie will have on a jury. In today's climate of reform of the medical system, jurors are subscribing to the notion that medical malpractice awards are out of control and choose not to acknowledge that physicians can be self-serving. Merely identifying inconsistencies in a defendants testimony regarding the management practices employed within itself may not be enough to sway a jury.
Distortion of the Time Between Differential Diagnosis and Delivery
of the Baby
Expect the defendant Obstetrician to falsify the medical records with respect
to the time of delivery of the baby's head and the complete delivery of the
baby. Defendant Obstetricians will attempt to increase the amount of time between
differential diagnosis and delivery in order to support the fifth defense, that
the defendant Obstetrician's actions during delivery were necessary to save
the baby's life. In other words, by lengthening the time involved in this aspect
of the delivery, the Obstetrician can argue that his actions were necessitated
by an Obstetrical emergency.
Compare the attending nurses notes with the discharge summary written and/or
dictated by the attending Obstetrician. It has been our experience that the
nursing notes and physician summary will differ with respect to the management
practices employed during the delivery. At the time of trial, explore in great
detail the maneuvers performed by the defendant as noted in the medical records,
delivery summary written or dictated by the defendant physician after the delivery,
and the testimony the doctor gives at his deposition. Be sure to point out to
the jury that the physician is not the only person in the delivery room responsible
for creating the medical record. Create time
lines noting the distinctions between the medical records, physician summary, defendant deposition, trial testimony, and Williams' Obstetrics. In all likelihood, the defendants testimony will get closer and closer to Williams' management strategy as time progresses. This fact should be pointed out to a jury as it will make jurors suspicious of the defendant and put his credibility at issue.
The "Emergent Situation" Defense
The most modern and potent defense utilized is the "Emergent Situation" defense.
The defense arises from the notion, albeit incorrect and not supported by any
medical literature, that there is a very very short amount of time for Obstetricians
to manage a Shoulder Dystocia after making a differential diagnosis. [The
differential diagnosis of Shoulder Dystocia is made once the baby's head presents
in the "Turtle Sign
" or nose down and the head is sucked slightly back into the birth canal.]
The defense will put forth the argument that because there is so little time
with which to manage a Shoulder Dystocia, and because the risk of taking too
long to relieve the Shoulder Dystocia is fetal brain damage, Obstetricians are
justified in doing whatever is necessary to deliver the baby as quickly as possible.
In other words, it is OK to apply excessive lateral traction and deliberately
sacrifice an arm to save a brain.
Central to the "Emergent Situation" defense is the amount of time between the
differential diagnosis of the Shoulder Dystocia and the time of delivery of
the shoulders of the baby. The medical literature states that an Obstetrician
has in excess of five to six minutes before he should begin to worry about permanent
brain damage.
Defense experts will testify that Obstetrician's have only three to four minutes
before fetal brain damage occurs. Thus, the "emergent situation" defense is
feed by defense expert witnesses creating the theory that Obstetricians must
act in a very aggressive manner almost immediately subsequent to the differential
diagnosis to avoid fetal brain damage. Note that idea that there is only three
to four minutes in which to manage a Shoulder Dystocia is not supported by relevant
medical literature. Defense experts who are willing to make this statement will
base it upon their "training and personnel experience," not the medical literature.
Also, be aware that the "emergent situation" defense will be further served
by plaintiff medical expert witnesses' testimony if you are not careful. If
you have your Obstetrical expert explain to the jury how techniques for management
of Shoulder Dystocia are performed you will be assisting the defense. As your
expert explains the Obstetrical maneuvers used in the management of a Shoulder
Dystocia, maneuvers which require only seconds to perform on a patient it will
take your expert several minutes or more to explain to a jury. Jurors will be
tempted to add up the time it takes an expert to explain these maneuvers and
wrongly conclude that an Obstetrician faced with a Shoulder Dystocia only has
time to perform one or two maneuvers before placing the baby at serious risk
of brain damage. If you fail to ask your expert witness how long it takes to
perform each maneuver, jurors will be mislead to believe that maneuvers which
take thirty seconds to perform require two or three minutes. The "emergent situation"
defense capitalizes on this error.
Therefore, expect defense attorneys to emphasize that the defendant physician was facing an emergent situation, an emergency where he had only 120 to 180 seconds in which to cope with the emergency. The consequences of his failure to get the baby out in 120 seconds from the moment of diagnosis of Shoulder Dystocia is a brain damaged infant. By making this argument, defense attorneys "justify" their clients use of excessive lateral traction because the jury has been left believing that there was not sufficient time for the Obstetrician to get the baby out without using excessive lateral traction.
Countering the "Emergent Situation" Defense
Countering the emergent situation defense is a complicated task for it involves
(1) impeaching the defense OB/GYN expert as to the time available to manage
a Shoulder Dystocia, (2) presenting credible evidence that there is at least
five minutes to manage the dystocia before Obstetrician's should be concerned
with fetal brain damage, (3) showing the alternate maneuvers available to the
defendant Obstetricians to relieve the Shoulder Dystocia other then excessive
downward or upward lateral traction, and (4) demonstrating that the Erb's Palsy
was not an "act of God" and was not caused by a fetal mal adaptations or mal
formation.
Do the following: (a) bring a large clock and let the court sit in silence for
five minutes. This act will demonstrate to the jury that five minutes is a very
long time and will serve to counter the defense argument that Shoulder Dystocia
is an emergency requiring an "immediate aggressive response." (b) Have the defense
experts and the defendant physician state exactly how long it takes to perform
each maneuver used to manage a Shoulder Dystocia. For example, Woods Corkscrew
takes thirty seconds, an episiotomy takes fifteen seconds. Then prepare a time
lines using each physicians testimony and the medical records to show how the precious minutes between diagnosis and delivery were spent. It has been our experience at E.T.I. that the defendant doctors almost always have time in which to repeat maneuvers. The time line will suggest to a jury that the Obstetrician failed to properly exhaust all maneuvers available to assist the delivery and in a panic needlessly applied excessive lateral traction injuring the fetus. [It is noteworthy that fetal cord blood gases, if taken, are indicative of the degree of fetal oxygen deprivation. Failure to test fetal cord blood gas levels during delivery could be indicative that the attending Obstetrician was not concerned with fetal brain damage during the delivery.] (c) Remove the determination of how much time a fetus can go without oxygen before the onset of brain damage from the OB/GYN experts. Hire a neonatologist or maternal fetal medicine expert who has published studies regarding the amount of time fetal brain tissue can survive without oxygen. Have this expert witness utilize the medical literature which supports the position that you have at least five minutes to manage Shoulder Dystocia. (d) Ask the defense experts at deposition how many cases of permanent Shoulder Dystocia/Erb's Palsy that expert has personally managed. Go into detail as to the management performed during those deliveries. Specifically, ask him if he has ever had a baby suffer from permanent brain damage while in the care which he believes was caused by less then aggressive management of a Shoulder Dystocia. Pursuit of this line of questioning should serve to assist in preventing defense experts from stating at time of trial that there "experience" has been that there is only a three or four minute window in which to deliver the baby. Also, prepare exhibits to illustrate this information.
APGAR Scores
An APGAR score is a method of comparing the health of the baby as against other
babies. APGAR scores are taken at one minute and five minutes; the highest possible
score being a ten, the lowest a zero. In support of the "Emergent Situation"
defense, defense counsel may point to low one minute APGAR scores and blatantly
state to the jury that this baby was practically dead at the time of delivery.
This is at best a distortion of the truth and at worst an outright lie.
One minute APGAR scores within themselves are non-conclusive because they can
be influenced by several factors. (a) It is possible that a low one minute APGAR
score is merely associated with the normal traumas that accompany a vaginal
birth. This trauma is significant as it turns every baby's skin blue. (b) Low
one minute APGAR scores coupled with low five minute APGAR scores are much more
suggestive of exhaustion of fetal reserves and are an indication that the infants
brain may be damaged. Low one minute APGAR scores coupled with high five minute
APGAR scores signify that the fetal reserves were strong at the time of delivery
and indicate that the fetus recovered very quickly from the trauma associated
with birth. Low one minute and high five minute APGAR scores are not indicative
of a near dead baby and are not suggestive that brain damage by asphyxiation
was likely to occur. (c) It is also probable that the baby's throat was being
suctioned at the time the one minute APGAR score is taken or was suctioned immediately
prior to the taking of the one minute APGAR score. Baby's throats and noses
are routinely suctioned to ensure that the air passages are free from amniotic
fluid and meconium. Suctioning involves putting a large tube in the mouth and
throat of the newborn and causes the baby to gag. In cases where meconium is
present, suctioning will be more thorough to ensure that meconium doesn't get
into the baby's lungs. The trauma associated with suctioning can turn a healthy
baby blue and cause a reduced rate of respiration for several minutes after
the procedure has been completed. Suctioning, thereby, can cause an artificially
low APGAR score.
Nuchal Cords
It is very possible that the defense will try to confuse the jury by pointing
out that the defendant had to deal with a Nucal Cord. A Nucal cord is the term
used to describe an umbilical cord rapped around the baby's neck when the head
is delivered. The defense might try to allege that a Nucal Cord further complicated
the delivery and assisted in depletion of the fetal reserves. This argument
is without substance or merit.
According to Williams' Obstetrics, 25% of all births involve a Nucal cord. It is a simple and well rehearsed practice for the physician to deal with Nucal Cord situations; the physician either slips the cord over the baby's head thereby freeing the neck or if the cord is to tight to pull over the baby's head, clamps and cuts the cord. The entire process takes less then twenty seconds from diagnosis to remedy.
Show Me:Nuchal Cord- Pulling (80K)
Download Time @ 1.5k per second (14,400 baud) = 0.9min.
Download Time @ 3.0k per second (28,800 baud) = .05 min.
Nuchal Cord- Cutting (145K)
Download Time @ 1.5k per second (14,400 baud) = 1.6 min.
Download Time @ 3.0k per second (28,800 baud) = 0.8 min.Note: This animation is in Quicktime format. You will need the Apple Computer Qicktime Plug-in to view the animation. The animation will start automatically once it has been downloaded.
It is noteworthy
that the fetus probably does not receive oxygen from the umbilical cord once
the head has been delivered, so cutting the cord at the time of differential
diagnosis of Shoulder Dystocia does nothing to change the amount of time available
to the Obstetrician to deliver the baby.
Utilizing the Relevant Medical Literature Governing Erb's Palsy
Medical literature is composed of textbooks, such a Williams', Obstetrics, medical articles and ACOG Technical Bulletins. [ACOG, the American College of Obstetrics and Gynecology, is a private national organization composed of Obstetricians/Gynecologists. The organization produces several publication including Technical Bulletins. The Technical Bulletins are the product of a committee. As such, the Technical Bulletins are not subject to "peer review" (discussed, infra.) and occasionally contain self-serving information. However, as a rule, Technical Bulletins express the applicable standard of care. But, when the Technical Bulletins digress into the medical equivalent of Dicta, those portions of the Technical Bulletin should be attacked if relied upon by medical expert witnesses.] Textbooks are used for reference and teaching by physicians. Certain medical textbooks, like certain legal textbooks, are considered to be more authoritative. Williams', Obstetrics is the seminal work in Obstetrics. It states the applicable standard of care.
Medical articles, unlike Williams' Obstetrics, are subject to interpretation
by physicians. The rough legal equivalent of medical articles are law review
articles. The significance of a medical article depends upon (a) the journal
the article was published, (b) its authors, (c) the number of cases similar
to yours that were part of the study encapsulated by the article, and (d) whether
the article was truly subject to "peer review" prior to publication.
"Peer Review" is the process where the editors of any given medical publication
send the article and it's supporting data to be reviewed and substantiated by
a panel of physicians who are unknown to the authors of the article. Before
publication, the panel of reviewers analyze the submitted material and verify
its conclusions. Peer review serves to ensure that the articles published in
medical journals are of the highest scientific value. Unfortunately, not all
articles published in medical journals are subject to "peer review."
Publication without peer review most commonly occurs when the authors of a paper
are invited to speak at a conference sponsored by a journal and orally present
a paper. The paper is subsequently published by the journal as an article without
the article and supporting material being reviewed by independent physicians.
These articles are of questionable scientific value and are often published
to protect the medical establishment from malpractice lawsuits. The Jennett
Article "Brachial plexus palsy: an old problem revisited" published in the June,
1992 issue of The American Journal of Obstetrics & Gynecology is the quintessential
example of a medical article being published without it being subject to the
peer review process. Am J Obstet Gynecol 1992: 1673-7.
The Jennett article is based on a study which concluded that
On the surface, the Jennett article appears to be very damaging to plaintiffs. It is interesting that in the Comment section of this article, Dr. Philip E. Young notes that the promulgation of this article "would be a big help to practicing obstetricians." It is clear that the panel of physicians asked to comment on this article were more interested in how the study could assist their colleagues in the defense of Shoulder Dystocia related malpractice lawsuits rather then a careful review and evaluation of the data to determine if it supports the conclusions put forward by Dr. Jennett and his colleagues. For a complete analysis of this article please refer to the attached materials.
It is my opinion that it is possible to win birth related brachial plexus injury cases even though they are complex so long as the legal issues are properly narrowed during discovery and the jury is properly educated during trial. If E.T.I. or I can be of further assistance to you in presenting your case, please do not hesitate to contact us.