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Malpractice in Obstetrics

We are going to try to talk quickly about four different things, we are going to talk about how lawyers understand medical malpractice, we are going to talk about how you can help your lawyer, that is true, you can help your lawyer, and talking about communication which I think data shows, and I personally believe is the fundamental strategy for avoiding being sued, we are going to talk about documentation. I have quite a few examples from multi-million dollar medical records malpractice, obstetrics, birth injuries, obstetrician. So lawyers think of this in terms of four elements, duty asks the legal question, do you have an obligation to another person who was formerly a stranger? I owed no legal duty to any of you in this room because we have no professional relationship. If you come to me and ask me if I will represent you, then I have a duty to use my best efforts on your behalf in the same way that if a patient comes to see you, and you accept that patientís care, then you have an obligation to apply your professional skill. Breech of duty simply asks the question as to whether or not you did anything wrong. Sometimes lawyers refer to that as a deviation from the standard of care and we will talk about that more in a second. Approximate cause asks the very simple question, is there a connection between the breech of the duty and whatever injury the patientís claims to have suffered. Injury or damages is an essential element of any malpractice suit and in fact, these four elements are the same for virtually any negligence action.

You are judged under the same standards as any other negligence case. Standard of care is a very important topic, and this asks the question, what a reasonably well qualified physician, presumably thatís you, practicing in the same or similar locale , this part of the rule has changed over time, it is still the law in Illinois, but not applied considering the scale of technological invasion of rural areas, with telemedicine and with board certification and with training programs having changed, itís fair to say that in most states with large cities, the standard of care is probably the same everywhere. There are rural areas where this is definitely not the case and that may be true in your state.

Clinical ecology comes to mind, some of you may disagree with me on that, but having tried clinical ecology cases, I can tell you that the idea that you can be sensitized by droplets of junk in water, pour it on your tongue and then when the stimulus is removed, you have a permanent allergy to the walls of your house, strikes me as junk science, but trying to persuade judges that thatís a valid concept is difficult, to pretty much anybody can be hired to be an expert against you.

Your testimony. You can easily testify against yourself if youíre not careful. What is a good example of that? You say I always do so and so, or I never do so and so, stop and think for a minute that the lawyer who has sued you is a person who doesnít know you, doesnít want to know you, doesnít care about you, may not know his client very well and is motivated by one fundamental factor - money. When you sued, you are motivated by many factors, principally fear, and itís an interesting battle between money and fear, and I would suggest to you in most cases, money wins out.

Medical records, I will show you some examples in a few minutes, from the lawyers point of view they are cute, medical records that caused a lot of havoc. Authoritative texts I mention where ever I go, itís my mission in life, there is no such thing as an authoritative text, if any lawyer ever asks you the question, is this article or is this text authoritative, your answer is no, why? Why did he do that? Because if you say as a physician that any writing is authoritative in almost every state in the union, you have animated that writing into a witness who will testify against you. Think about any article you ever read, whether it actually succeeded in telling you exactly what you needed to do to treat a particular patient.

Letsí talk a little about terminology. Perinatal, occurring or pertaining to before, during or after the time of birth, real specific, time designations before and after birth are arbitrary. Second definition, concerning the period beginning after the 28th week of pregnancy through 28 days following birth. Well if you were to say perinatal, what would you have said? In the minds of lawyers, you wouldnít have said much. So letís combine that with my other favorite word, asphyxia. Here we have my friend Stedman, unconsciousness from suffocation or interference with oxygenation of the blood.

Fetal distress. A clinical diagnosis indicating a pathological condition in the fetus. Usually the distress is due to anoxia, remember that word anoxia. It is judged by fetal heart rate, etc. etc. Anoxia, without oxygen. Term is often used incorrectly to indicate hypoxia. Terminology can get you in a lot of trouble, and the reason is that you look at a newborn record, and it has all this junk written all over it, and itís nonspecific junk, itís jargon, it doesnít tell you anything.

Letís talk very briefly about communication. Whenever a bad event happens, our tendency is to withdraw, if we can overcome our own tendency to go to the patient and go to the family, speak to them and treat them on some more human level, our odds of being sued are decreased radically. I put these out of order on purpose because if you look at reasons for filing a suit. Almost half of the people who file suit in baby cases, on one way or another felt they werenít told the whole story or the true story. Interestingly, this category is often a medical professional of some kind and is not a lawyer, children have no future, the prospect of bringing home this poor creature is pretty daunting to most people and the revenge thing is I think the subset of people who are just angry and you are not going to be able to solve it, but if you look at the top two categories, half of the patientís sued because they didnít feel they got an adequate explanation. If doesnít mean you need to confess that there was a mistake, but to try to make them understand in human terms what happened is an important defensive tool. If you donít reflect the thought process in any decision that you write down on the chart, your lawyer has nothing to work with later. 

It is absolutely true that you can be wrong and still win. The standard of care is not that you will be right every time. It is that you will act as a reasonably well qualified physician acting under the same or similar circumstances would act, that doesnít mean perfection. If your thought process is documented so that the jurors can see that you are thinking about it, and you will miss by a little bit, I can win that case, and have won that case. The wrong conclusion, devoid of analysis doesnít let the jurors believe that you were a thoughtful person.

This is from an attending neonatologist and this speaks to the issue of medical causation, reviewed a whole bunch of consultantís information, these are pediatric neurology consultations, talk to the patient, discussed it with the parents, this patient suffered an overwhelming and massive injury to the cerebral cortex, this lesion present at 36 hours by CAT scan suggests it must have resulted from a massive CVA in utero 3 to I donít know how many days prior to delivery. The patient has no chance for cortical function. Whatís important about this, this is critical thinking, this is a neonatologist who took all the available data, put it together and told the parents that he believes that in a setting with substantial maternal disease, that this babyís injury was at least a week old at the time of delivery. This is contemporaneous medical record, this is not a hired witness, there is no law suit at the time, the plaintiffís lawyer tried desperately in this case to make the person who wrote this note, admit that he knew there was going to be a law suit, in fact, he didnít he wasnít even thinking about the law suit, he was just a pediatrician. Why was that important? Because critical thinking during the care, as opposed to the sloppy baloney of perinatal asphyxia and all that other stuff, produces this, what does this produce, it produces a way for you to convince the jurors that you are right, and it isnít your fault. Thatís what our goal is, you donít want to get sued in the first place, but if youíre gonna, and I think everyone in this room think they are going to get sued at some point, it sure would be handy to have some defense organized in the chart. I suggest that one of your highest priorities in practice is so spend time with neonatologist with pediatricians, who ever is working in the nursery taking care of babies so they understand the importance of these issues.