The court filing for medical negligence occurs after weeks of law firm research and preparation.

Certificate of Review

The court filing of a claim for medical negligence normally occurs after hours and weeks of law firm research, review, and preparation. Initially, a potential plaintiff, or injured party, will contact a law office to discuss whether or not they may have a viable claim. With personal injury, initial contact from an injured party will typically be fielded by a legal assistant or paralegal with experience evaluating the merits of a potential case. He or she will interview the caller, take notes, and ask pertinent questions regarding the circumstances of the injury. Essential information will also be noted regarding ongoing health issues that have persisted since the purported negligent event.

If the facts of the potential case appear compelling, a meeting with the injured party, and/or relatives, is arranged with a firm attorney who will interview the injured party and gather additional information. If it is determined that the case is worth filing, the law firm will send for all pertinent medical records and carefully review them for obvious issues of malpractice and whether the records corroborate what the potential client has reported.

Continuing from the initial investigation, a consultation with an expert witness, who has reviewed all the medical records, will either confirm or deny that professional malpractice has occurred. Negligence cases can have multiple potential defendants, requiring the expertise of several expert witnesses. Before filing, an injury law firm will have spent significant funds, even before being certain of the viability of the case.

With confirmation that there was negligent conduct, a Complaint and Jury Demand will be filed with the court. Also, during this time frame, the accused defendant will be served with a Summons, along with a copy of the complaint. Plaintiff’s counsel is responsible for the service of the summons. Successful delivery of the summons is formal notification to the plaintiff that they are being sued. Service can be made, personally, to the defendant or another person or entity can “accept service”. With service on a hospital employee, the insurance defense firm defending the hospital will typically accept service on behalf of the hospital and individual providers that have been named.

Personal service has been depicted in media as dramatic, especially when the potential plaintiff is trying to avoid it. Actually, service is fairly mundane and civilized. However, it may cause some distress if not accomplished in a professional manner, such as service in the midst of clinic with coworkers and patients present.

Each State has its own Statutes regarding courts and court procedures for medical malpractice litigation. These laws have different titles and recitations but can be found under headings such as: “Actions against licensed professionals”. Following are select examples of legislative language from the State of Colorado:

Legal Filing

“. . .in every action for damages or indemnity based upon alleged professional negligence of a licensed professional named as a party”:

“. . .Within 60 days of the Complaint, the complainant’s (plaintiff’s) attorney, shall file with the court a certificate of review for each individual named as a party” (MD/DO,CNM, Registered Nurse, etc.).

“. . .In the event of failure to file a certificate of review (emphasis added) and the licensed professional defending the claim (hospital attorney) believes that an expert is necessary to prove the claim of professional negligence, the defense may move the court for an order requiring the filing of such a certificate.”

“. . .A certificate of review shall be executed by the attorney for the plaintiff declaring:

- that the attorney has consulted a person who has expertise in the area of the alleged negligent conduct, and that the professional (MD/DO,CNM,RN, etc) who has been consulted. . .has reviewed the known facts, including such records (medical records, EFM tracings, etc.), documents, and other materials which the professional has found to be relevant to the allegations of negligent conduct, and based on the review of such facts, has concluded that the filing of the claim does not lack substantial justification within the meaning of section xx,xx,xxx.

. - the court, in its discretion, may require the identity of the licensed professional(s) (nearly always provided) to be disclosed to the court and may verify the content of such certificate of review. The identity of the professional need not be identified to the opposing party or parties in the civil action. . .”[1]

Expert Witness Report

In addition to the filing of a Certificate of Review, a written report is provided to defense counsel, written by the expert, who has reviewed the case. Example of a typical expert witness report:

My name is Midwife Z, CNM. I am Board Certified in Certified Nurse-Midwifery, and currently licensed to practice nurse-midwifery in the State of (where the expert lives and practices). I am familiar with the standards of care as they apply to the midwifery care provided by Midwife X, CNM. I am familiar with these standards based upon my education, training, years of experience, and board certification in Certified Nurse-Midwifery.[2]

I have reviewed the medical records of Jane Doe and Baby Doe from Doeville Hospital. Based on my review of these records, I find there is a reasonable and meritorious basis for filing a lawsuit against Midwife X, CNM, and Doeville Hospital.

At 1325, Nancy Nurse, RN, assumed care of Jane Doe on the labor and delivery unit of Doeville Hospital. At 1350 Midwife X, CNM, assumed care of Jane Doe. At 2200, Midwife X documented “arrest of dilation” and asynclitic presentation of the fetal head. Midwife X also documented a change in the fetal heart tracing from Category 1 to Category 2. Midwife X administered a Pitocin infusion despite the appearance of excessive uterine activity and a Category 2 fetal heart tracing.

At 0230, Jane Doe was completely dilated and the fetal tracing still indicated Category 2, having persisted for four and a half hours since the 2200 evlauation. Midwife X continued to infuse Pitocin despite the abnormal fetal heart tracing.

At 0430, the tracing indicated tachysystole, and Jane Doe was pushing excessively, with and without contractions, per the documentation of Nancy Nurse, RN.

At 0445, Midwife X maintained the Pitocin infusion at 23 milU/min which had been steadily increased since 0230 hours.

At 0700, Jane Doe delivered Baby Doe vaginally. The child was born without tone and no respiratory effort was evident. Baby Doe was resuscitated and immediately transferred to the closest Children’s Hospital.

Based on my review, Midwife X, CNM was negligent based on an obvious absense of bedside attention and ongoing evaluation of her patient as follows:

a. Failure to properly recognize, document, and mitigate the fetal heart tracing abnormalities of Baby Doe.

b. Failure to properly monitor and assess the condition of Baby Doe throughout the course of labor.

c. Failure to employ intrauterine resuscitative measures to improve the fetal well-being of Baby Doe.

d. Failure to monitor and recognize obvious signs of fetal distress.

e. Failure to recognize and mitigate Jane Doe’s excessive uterine activity

f. Failure to discontinue the Pitocin infusion at the first signs of fetal distress (Category 2) and excessive uterine activity.

g. Failure to prevent Jane Doe from excessive pushing efforts.

h. Failure to consult an obstetrician/consultant regarding Jane Doe’s abnormal labor and fetal tracing.

i. Failure to recognize and consult an obstetician/consultant regarding Jane Doe’s urgent need for cesarean delivery.

j. Midwife X, CNM failed her duty as a CNM to advocate for the health and safety of Jane Doe and Baby Doe.

The aforementioned negligent acts and omissions of Midwife X proximately caused the permanent fetal injuries suffered by Baby Doe.

Sincerely,

Midwife Z, CNM (expert witness)

As the case proceeds, defense counsel will have an equal opportunity to present the report and opinion of their own expert witness. If the legal action continues, each side will depose the other’s expert witnesses and , if necessary, examine each in court before a judge and/or jury.

1. C.R.S Title 13. Courts and Court Procedure §13-20-602.

2. Whether an M.D. may testify to the Standard of Care of Certified Nurse-Midwives varies from State to State. Many Court jurisdictions require that expert testimony, regarding nurse-midwifery care, must be provided by CNM expert witnesses.

Relevance To Practice

Situation:

It is a mistake to assume that many professional malpractice filings are frivolous lawsuits. The facts, as outlined in this article, indicate that there are hours of preparation prior to filing. If you find yourself an unfortunate plaintiff in a malpractice lawsuit, you must take this seriously and not dismiss it as frivolous.

Vulnerability:

According to the 2018 National Midwives and Liability Survey, one third of responding CNMs (32%), reported that they have been named in a at least one lawsuit (after a median of 7 years in practice)* . Claims most often involved in-hospital care and resulted from faulty fetal heart rate interpretation. As opposed to survey findings in 2018 that indicated more experienced CNMs were being sued, personal observation of recent midwifery malpractice filings suggests that claims are being filed against relatively inexperienced CNMs e.g. less than 3 years experience and graduating from programs heavily utilizing on-line clinical instruction and evaluation. There are no published studies currently available to support this observation.

* Midwives and Liability: Results of the 2018 National Midwives and Liability Survey. Journal of Midwifery & Women’s Health/ Vol. 67, Issue 2/p. 226-234.

Page, K CNM,MSN, Aryal, Subhash PhD, MS, Guidara, M., CNM,MSN.

First published: 29 March 2022. https://doi.org/10.1111/jmwh.13355

Expectation/Remedy:

There is reliable evidence that negligent fetal monitoring interpretation forms the basis for nurse-midwifery lawsuits. Although not mandated for midwifery credentialing in most hospitals, C-efm certification is recommended for every clinician involved in electronic fetal monitoring interpretation.

http://www.midwivesontrial.com

Filing the Medical Negligence Lawsuit

Defining Clinical Practice Guidelines

Nurse-Midwifery Care Settings