LITIGATING THE BRAIN –
DAMAGED BABY CASE
From the Initial Interview to Trial

By J. Douglas Peters

Attorney ethics, juries softened by years of insurance company "education", and the escalating complexity of litigating brain-damaged baby cases show the importance of investigating, working up and establishing liability and causation proofs before filing suit. Recent empirical studies (e.g., Prenatal and Perinatal Factors Associated with Brain Disorders (J.M. Freeman, ed. 1985)) and emerging technologies (e.g., magnetic resonance imaging) have made causation the focal point of birth injury litigation.

Investigating Before Filing Suit
     A subspecialty—birth injury cases—is emerging within the legal specialization of medical negligence. For this and other reasons, the claimant’s lawyer should already have a general knowledge of medicine, especially obstetrics and gynecology.
     The client interview comes first. Besides the usual data collecting and document signing typical of most client interviews, lawyers must –
     --Obtain facts from the parents, including physical evidence (baby books, etc.) the complete medical history of mother, father and siblings; and a factual history of the physician-patient relationship. Lawyers should always have the parents screened for possible genetic and environmental exposures—foreseeable defenses—and have the parents’ and child’s teeth, fingerprints, eye placement in relation to nose and forehead, and forehead deformities, etc. looked at to screen for all possible genetic defects.
     --See the child. Too often, the parents of a severely injured child attend the first attorney-client meeting without the child. Lawyers should always try to arrange for the child to be at the first meeting or at least be sure to see the child before filing suit. Lawyers should view he child with an eye not only toward damages, but also toward liability.
     --Obtain complete medical records, including mother’s primary and prenatal care records; mother’s labor and delivery records (e.g., uterine-contraction and fetal-monitoring strips, ultrasound reports and films, slides, incident reports, billings, and in-hospital records and post-discharge follow-up consultation and treating physician reports; and serial photographs of the child from the date of birth to the present.
     --Identify potential defendants (always screen for drug or other product causes that would support a products liability action).
     If anything about the parents, their histories, or the child’s looks or medical records suggests genetic causation, a genetic workup for purposes of excluding this as causation may be indicating before filing suit.
     If possible, lawyers should have a nurse specialist organize and review the records (labor and delivery, etc.) before submitting them to a physician specialist. A timeline of significant medical and factual events should be prepared. Lawyers should forward the timeline, the organized records, and a letter of suggested areas of inquiry to each potential expert.
     Because many defense lawyers believe obstetricians are competent to comment only on the obstetrical standard of care or deviations from it, not on causation, plaintiffs’ lawyers should have brain-damaged baby cases reviewed by both an obstetrician and a pediatric neurologist or neonatologist.
     Lawyers should select experts they will use at trial before the complaint is filed and should not rely on a "reviewing expert" who is unwilling to testify at trial. Many lawsuits have been started on the word of such experts who, when the time comes to find an expert to give a deposition and testimony at trial, cannot be found.
     Lawyers must ensure that both deviations from accepted standards of care and a causative link between those deviations and the injury can be established. They should also secure statements from follow-up treating physicians, especially neonatologists and pediatric neurologists, before suit is filed. If they do not, control over these key witnesses falls to the defense.

Severe Diffuse Brain Injury
     Criteria used to identify children with severe diffuse brain injury—especially children whose injuries were caused by obstetrical malpractice—are controversial. Yet, there are signs and symptoms that typify the newborn with severe brain injury:
     --difficulty in breathing
     --difficulty in sucking and swallowing
     --difficulty in maintaining temperature (persists over 24 hours)
     --alterations in levels of consciousness (i.e., extreme irritability to coma)
     --hypotonia—abnormal decrease in strength—floppiness
     --normal head circumference (abnormal head circumference may suggest an alternative causative factor. Macro or micro head size may suggest a congenital or intrauterine growth retardation.)
     --signs of increased intracranial pressure after several days (e.g., an intense bulging fontanel)
     --high pitched, shrill cry
     --projectile vomiting
     --pupil/iris appearing as if it is setting into lower part of eye—setting sun sign
     --apnea (may be a manifestation of intercranial pressure).
     Some signs of an infant at risk for acute brain injury include—
     --maternal illness during pregnancy (infection, trauma, preeclampsia, etc.)
     --maternal exposure to drugs or environmental exposure to teratogens
     --cord or placental accidents
     --meconium staining of the amniotic fluid
     --a low Apgar score at birth that does not promptly rise significantly with vigorous resuscitative efforts
     --epileptic seizures
     --septicemia in a sick infant
     --hypoglycemia
     --white or ashen skin tone
     --facial abnormalities.
     In a given case, these signs and symptoms may appear alone or in combination. Concerning liability and causation questions, lawyers must determine the existence of the sign or symptom, the cause of the sign or symptom, what response the physician made or should have made, and whether any response would have changed the outcome.

Neonatal Brain Damage
     Causes of neonatal brain damage, alone or in combination, include hypoxia (low oxygen asphyxia); ischemia (low blood pressure and flow); hemorrhages, spontaneous or traumatic; apnea; cessation of breathing; hypoglycemia (low blood sugar); kernicterus (excessive bilirubin); infection (e.g., meningitis); seizures (which complicate and exacerbate other pathologic processes); and hydrocephalus.
     Not all neonatal brain damage is the result of obstetrical error. If a physician deviates from accepted standards of care, causes the signs or symptoms above, or fails to respond to them and an injury results, that may constitute obstetrical malpractice.
     Asphyxial brain damage, sometimes described as cerebral palsy, is a subject in itself. I discussed it in an earlier article. (Peters, Cerebral Palsy: Malpractice Can Be the Cause, TRIAL, Dec. 1984, at 34.)
Drafting the Complaint
     Competent lawyers in the same and different jurisdictions debate whether general or specific complaints are indicated. Regardless, the complaint sets the framework of the suit and determines the scope of discovery. It should be drafted to meet the legal requirements of the jurisdiction and anticipated testimony of plaintiff’s experts.
     As discovery proceeds, the complaint should be amended to reflect newly discovered facts or deviations from accepted standards of care. As the case approaches trial, the complaint should be amended to conform to the trial proofs; charges that cannot be proved by the close of discovery should be dropped.
Discovery should be viewed as an ongoing process that involves thinking, rethinking,communicating, negotiating, and sometimes, fighting. It begins with the lawyer’s general obstetrical knowledge, which can be supplemented by reading, for example, the New England Journal of Medicine, the Journal of the American Medical Association, Obstetrics/Gynecology, and Ob/Gyn News.
     Discovery costs money. How the patient’s lawyer spends money on discovery telegraphs to the opposing counsel what the lawyer knows about litigating birth injury cases.
     There is no single right way to conduct discovery. The facts of each case should determine what discovery steps will be taken, and in what order. Indeed, before lawyers begin discovery, the legal theories to be proved and the crucial medical facts to be established on deviation from standard of care and causation must be understood so that discovery can be tailored to produce the necessary proofs.
     Although there is no cookbook order of discovery, the typical order includes:
     1.  The investigation before the complaint is filed.
      2.  Interrogatories to defendants covering nonsubstantive material. Substantive material should be discovered in depositions in jurisdictions that allow them. Interrogatories may be used to discovery substantive material in smaller damage cases as a form of cost control.
     3.  Interrogatories to the plaintiff, which are typically accompanied by "defense authorization forms". If the patient is to sign authorization forms, they should be drafted by the patient’s lawyer and should clearly state that they authorize the disclosure of records only. The forms should expressly state that discussions with nondefendant treating doctors or other health care providers are not permitted.
     4.  Discovery about the defendant’s lawyer—reputation, substantive knowledge, integrity, etc.
     5.  Deposition of the plaintiff. If the defense lawyer does not move to take the plaintiff’s deposition, this may signal a problem. It may be that the defense lawyer is following the plaintiff’s declining health through Medicaid billings or other sources and is waiting for the plaintiff to die. If the plaintiff is at risk of dying, a videotape of the plaintiff if he is old enough to give testimony should be taken to preserve the testimony. Otherwise, a day-in-the-life video should be prepared as a hedge against the child’s untimely death.
     6.  Collection of defendants’ and experts’ writings and speeches.
     7.  Deposition of the defendant doctor, preferably in the doctor’s office. Sometimes it is important to take the depositions of nurses and other operating or delivery room personnel before taking the defendant doctor’s deposition. Such witness may lock in the doctor’s testimony.
     8.  Depositions of fact witnesses, e.g., nurses, respiratory therapists, and hospital administrators.
     9.  Depositions of plaintiff’s experts. If the defense does not move to take these depositions, the lawyer should try to find out why. The answer to this question may reveal a defect in plaintiff’s case or a weakness in plaintiff’s expert. It may be that the plaintiff has inadvertently selected an expert who is well known to the defense, has a fatal flaw, or has been well-deposed in other actions.
     10.  Deposition of defendant’s experts.
     11.  Follow-up interrogatories.
     12.  Requests for admissions.
     13.  Investigation of client’s damages.      Because damages often increase or appear over time, the patient’s attorney must monitor the child’s health throughout the litigation. In cases involving newborns, it may be wise to delay filing the complaint as the cognitive damages may not be measurable until the child is about five.

Conducting Depositions
     Before deposing the defendant doctor or the defendant’s experts, the lawyer should have completed the case workup. The lawyer should list key questions to be asked, including those based on answers gleaned from medical texts, articles, or materials the defendant or the defendant’s expert have prepared so that questions eliciting contrary responses can be noted, preserving the discrepancies for use at trial. Where possible, depositions should take place in the doctor’s office so educational plaques, licenses, and other factors can be noted and possibly used for deposition questions.
     When deposing the defendant doctor and defendant’s expert, the lawyer should do the following:
     1.  Review the files of the doctor or expert and have them marked as exhibits, checking the underlinings, sidebar comments, or other markings that may serve as a basis for questioning.
     2.  Have an outlined set of questions that will cover all aspects of defendant’s knowledge about the matters in question. Ask the witness to define key terms, explain normative ranges for tests, etc. This helps set a baseline against which the answers that follow can be measured.
     3.  Ask questions in a random manner unless the deposition is intended for use as testimony at trial. This method, sometimes called the "hit/skip" method, limits the witness’s ability to anticipate the next question and denies the witness the opportunity to prepare a set answer.
     4.  Obtain an unequivocal answer to each question. Too often, thinking about the next question prevents the lawyer from listening carefully to the witness’s answer. Listening to answers is as important as, if not more important than, asking questions. Often, a witness’s answer will suggest unplanned questions.
     5. Be flexible enough to leave prepared questions, venture into unplanned areas, and then return to the prepared questions.
    6. Be nonconfrontational. Relaxed questions may elicit less guarded responses than more hostile, aggressive questions.
     7. Try not to telegraph positions or theories to opposing counsel during the deposition.
    8. Use everyday language.
    9. Test the witness’s knowledge of basic medicine and the medicine involved in the case. Such questions can unsettle an unprepared physician witness, just as questions about the rule against perpetuities might unsettle a lawyer witness.
    The two events most dangerous to the plaintiff’s case are the depositions of the plaintiff and of the plaintiff’s experts. Although plaintiffs can rarely help their cases with their testimony other than in the area of damages, they can do a lot to hurt their cases. (The baby’s mother should be prepared for questions about prenatal infections, traumas, Agent Orange exposures, and other prenatal events that may give rise to substantive alternative causation defenses.)
     The plaintiff’s experts should be prepared to report the number of times they have testified at depositions and at trials; the medical legal reviews they have performed; whether these services were performed for the plaintiff or the defense; and, if for both, what percentages were provided to each. Experts must know all the relevant facts and understand that opinions should be stated in terms of "probabilities" instead of mere "possibilities", as the latter are usually not admissible. Experts should be prepared to confront anything they have written that might contradict their current opinions.
     As the depositions proceed, follow-up interrogatories and, ultimately, requests for admission may be helpful. Well-drafted requests for admission, especially when based on the depositions of the defendant or the defendant’s expert, can be devastating weapons. Requests for admission can also force defendant’s counsel and carrier to confront admitted facts that they might otherwise forget or successfully ignore.

Foreseeable Causation Defenses
     New technology, such as magnetic resonance imaging, and the emergence of studies whose statistical findings favor alternative causations in brain-damaged baby cases must be considered and rebutted. Credible explanations to adverse test findings must be found before the depositions of the plaintiff’s experts

Settlement or Trial?
     Some factors that determine whether or not a brain-injured baby case will ultimately settle or go to trial include the following:
     1. The strength of the plaintiff and the plaintiff’s case.
     2. The weaknesses of the defendant and the defendant’s case.
     3. The extent of special damages such as medical and hospital bills; loss of earning capacity; and other expenses, including future custodial or medical expenses.
     4. The scope of the plaintiff’s injuries, e.g., permanent disability and cosmetic or deformity problems.
     5. The number and quality of collateral claims, such as those of the mother, father, and siblings.
     6. The scope of defendant’s insurance coverage.
     7. The insurance companies involved and the contract language of the policies.
     8. The power and credibility of the various experts.
     9. The complexity of causation.
    10. The liberalism or conservatism of the jurisdiction where the case is to be tried.
     11. The experience of the attorneys.
     12. The presence or absence of animosity between the plaintiff and defense attorneys.
     With the emergence of studies supporting the alternative causation defenses, caps on pain and suffering, abolition of the collateral source rule, the dwindling supply of credible plaintiff obstetrical and pediatric neurologic experts, and more aggressive insurance defenses, more brain-injured baby cases are going to trial than ever before. The cases tend to involve shopworn plaintiff experts, viable alternative causation defenses, and inexperienced plaintiff’s counsel, or else these cases involve instances where the plaintiff’s demand for settlement transcends the risks of trial perceived by the defendant and insurer.
     Because case selection determine so many of these variables, the specialized plaintiff’s lawyer can predict fairly well which cases will go to trial and which will not.
     When a case goes to trial, several concerns are worth noting:
     1. Skillful use of motions in limine and other pretrial motions to keep out red-herring alternative causations.
     2. Avoidance of bifurcation. Federal courts in particular and some state courts are bifurcating liability and damages in these cases. Because liability proofs are often intertwined with damage proofs, bifurcation can be fatal to the strongest plaintiff’s case.
     3. Whether plaintiff’s experts can appear at trial or can only appear by deposition. Because it is foreseeable that many local defense experts will appear, it is incumbent on plaintiffs to present witnesses in court where possible.
     4.  Availability of models and anatomical drawings. The use of models, especially in the hands of expert witnesses demonstrating the defects in the delivery process, may be effective teaching tools, especially with male jurors.
     5.  Use of the defendant or defendant’s expert to rule out alternative causations that may be offered as "smoke" by defendant’s counsel in closing argument. Anticipatory motions in limine and the absence of alternative causation proofs may prevent the defendant’s counsel from employing obfuscating alternative causation arguments.
     6.  Avoidance of overreaching in damage claims. Because of the severity of the plaintiff’s injuries in these cases, each dollar figure presented should have some rational basis, and the total demand for recovery should adequately compensate the plaintiff, yet avoid the appearance of overreaching. Discussions with the plaintiff’s economic expert should anticipate the problem of overreaching and facilitate an empirical/data-based claim for damages. In some cases, mock trials may be very useful.
     7.  The credibility of the plaintiff and of the plaintiff’s experts—especially when it is contrasted to that of the defendant and of the defendant’s experts.

Responsibility Required
     The techniques of trying a brain-damaged baby case and the trial considerations involved are similar to the concerns in any malpractice or personal injury case. Concerns common to all personal injury litigations are not specifically addressed here, as volumes have been written on these subjects. (See, e.g., Charfoos & Christensen, Personal Injury Practice: Techniques & Technology (1986).)
     Litigating the brain-damaged baby case, especially in the screening and discovery phases, is a unique subspecialty within the field of medical negligence litigation. Professional ethics, parental vulnerabilities, physicians’ rights to fair treatment, and the public’s intense scrutiny of birth injury litigation require knowledge, skill and responsibility from both plaintiff’s and defense lawyers. q