Dennis Lansdowne, a partner at Cleveland-based Spangenberg, Shibley & Liber, who represents plaintiffs in HIE and other medical malpractice claims said the strength of the case on both standard of care and proximate cause, the demeanor of the witnesses and the jurisdiction all play a role in the decision to go to trial.
“These cases can be very expensive to try because we have to bring in numerous expert witnesses from different specialties and sub-specialties,” Lansdowne said. “Given that some jurisdictions have caps on economic and/or noneconomic damages, we have to weigh whether it makes economic sense to go to trial. This is something I discuss with the family when a settlement offer is presented.”
Jurisdictional issues aside, Lansdowne said an attorney must examine all facets of the delivery to determine if any medical professional breached the standard of care.
“If there’s evidence on the fetal monitor strip that the baby was in distress for a period of time and the medical professionals failed to intervene leading to HIE, then we have a potentially strong case,” he said.
Lansdowne also examines the “likability” factor of the witnesses on both sides of the case.
“We consider the impression that the plaintiff or plaintiffs will have on the jury,” he said. “Do they make compelling and deserving witnesses?
Lansdowne said they also review the depositions given by the defendant doctor and nurses.
“Did the defendants appear arrogant, defensive or uninformed?” he said. “If the jury does not like their demeanor or lack of empathy, then that’s a real plus for our side.”
On the defense side, Paul Greve Jr., senior director of healthcare risk solutions at Markel Specialty, said the attending obstetrician must be able to show that she/he had good oversight over any residents involved in the patient’s care, if that was indicated, in a teaching hospital setting and should fully document any steps taken before and during the delivery.
“This can assist the attorney in developing alternative theories of causation,” Greve said. “For instance, if the infant has developed cerebral palsy there may be signs that it existed before the delivery.”
The issue was the subject of session at the 2024 Crittenden Medical Liability conference in South Carolina last April entitled, “When the Stork has a Crash Landing: Lessons from the Courtroom on Defending OB Claims.”
Several panelists spoke at the event including Greve; Christine Ringler, a patient safety and risk solutions director at Candello; and Olga Kats-Chalfant, senior vice president of claims at third-party claims administrator Gallagher Bassett Specialty.
Ringler said clinical judgment is one of the top contributing factors identified in more than two-thirds of the OB-related cases in the database.
To reduce the risk of litigation, Ringler said every member of the team should be well educated on how to interpret fetal monitor strips and the providers should be experienced in delivery.
“If there was a delay in delivery, the providers should be able to explain the clinical rationale behind that decision to the patient and a jury,” Ringler said.
While some jurisdictions may limit caps, Greve said there are those known for their generous plaintiff verdicts, which a defense attorney must also take into account.
Kats-Chalfant said unlike other medical malpractice claims, OB cases are unique.
“First there are two patients involved, a mother and her baby,” she said. “Neither of these patients is sick and there’s usually an expectation of a positive outcome among all parties involved. Most people go into the delivery room believing they will have a healthy baby and if the child or mother is injured or dies there is a huge sympathy factor in favor of the plaintiff.”
“For these reasons, it is very risky to go to trial,” she added.
Still, Kats-Chalfant said the best approach is to assume the case will go before a jury and prepare accordingly.
“The most important factor in winning the case is picking the right defense counsel,” she said. “The attorney must be well schooled in the medicine, but also have the emotional intelligence to be able to read the jury and respond accordingly.”
While the case must be medically defensible, Kats-Chalfant said attorneys should prep the physician and nurses to answer the questions in laymen’s terms, while demonstrating empathy for the plaintiffs.
“The medical professionals must show they had a personal stake in the outcome of the delivery and could not have anticipated or prevented what went wrong,” she said. “It is also important to select expert witnesses that are humble and sensitive to the plaintiffs in the case.”
While it’s impossible to eliminate all human error during the pregnancy and delivery process, Greve said medical schools and healthcare facilities are doing more to prepare physicians and nurses to handle foreseen and unforeseen factors that lead to tragedies like HIE.
“A lot of the times these cases come down to poor communication between the medical professionals, the failure to adequately monitor the patient or a lack of clinical judgment or skills.
“I think it’s important to train the entire team together, which hospitals are doing, using lab patient simulation labs, mannequins, EFM (electronic fetal monitoring) strip interpretation training and team training programs to help improve communication between doctors and nurses,” Greve said.
See Part 1 of this story: Defending OB claims: The decision to fight or settle is far from a simple one
