The Obstetrical Malpractice Trial - Part 1

Case Evaluation, Causation, and Jury Selection

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Obstetrical claims are the largest source of indemnification payments made by hospitals and insurance companies. Attorneys for Plaintiffs will emphasize a care provider's failure to anticipate the occurence of a non-routine event; like Shoulder Dystocia. The defense will insist that the injuring event is unpredictable and, therefore, unpreventable. Obstetrical malpractice trials involve the evaluation of:

a) Whether the care provided to mother and baby met the standard of care;

b) If there was substandard care, was it the cause of the maternal or fetal injury;

c) These issues will be evaluated and presented to the jury by expert witnesses.

Causation in Birth Injury Litigation can be filtered down to the following : Hypoxia and Ischemia - Oxygen deprivation and interference with oxygenated blood flow to vital organs, like the brain. Trauma - Head compression, Brachial Plexus Injury, Operative Vaginal Delivery (forceps or vacuum) or Combination of Hypoxia/Ischemia and Trauma. 1

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The duration of pregnancy is 40 weeks divided into three trimesters. Negligence can affect a pregnancy in all three trimesters. The largest number of negligence claims involve alleged malpractice during the last trimester; 28-30 weeks gestation; most frequently during labor and delivery.2

Perinatal brain injury claims are filed most frequently in obstetrical malpractice cases. Brain injuries are usually significant, involving both cognitive and motor function and may last the life of the baby.

Perinatal events that may cause permanent injury to mothers and babies include:

- failure to recognize and mitigate fetal hypoxia, apparent with electronic fetal heart rate monitoring (FM strips are frequently the central piece of evidence in resolving a case).

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- sudden emergencies such as umbilical cord prolapse, placental abruption, or shoulder dystocia

- trauma to mother or baby due to inexpert operative vaginal delivery, particularly misapplication of vacuum cup to the fetal head

- misuse/negligent titration of Pitocin during induction or augmentation

- inability to recognize concerning features of the FHT: (Cat II - repetitive late decelerations or variable decelerations persistent greater than half the time; deteriorating Cat II)(Cat III - absent variability and bradycardia. Inability to improve concerning features of the strip/ recognizing significance of patterns

- traumatic delivery of the baby from the maternal pelvis during cesarean section3

- Appropriate Responses: Turn off Pit., expedient C/S for Cat II tracing you cannot improve after 30 minutes. Waiting until Cat III is too late to prevent brain injury. (Clark, et al. 2013)

Voir Dire - The Plaintiff's Approach

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The Plaintiffs in malpractice litigation will focus on revealing inate juror bias. This will begin during jury selection with Voir Dire, which means to speak truth. During this process, both parties' lawyers trying the case will begin with determining whether potential jurors can be fair. This involves questioning potential jurors to determine if they have opinions or biases that could negatively affect their ability to hear evidence and/or maintain partiality.

Unlike a criminal case, in a civil case, the burden of proof is on the Plaintiff, or injured party, to prove the case by a preponderance of the evidence. Instead of beyond a reasonable doubt, plaintiffs in a malpractice case must prove that the evidence is "slightly in their favor", "more likely than not". Plaintiff's counsel will tell potential jurors that they will prove their case by more than that, but the law only requires the evidence to be, at minimum, 51% in favor of the plaintiff. One question to the panel might be: "Is there anyone who would have the slightest hesitation in finding a verdict against the defendant if the evidence in this case was only slightly in our favor?4

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Additional voir dire questions in a high-damages case might be these, or something similar:

Q: Who here feels that lawsuits these days have gotten out of hand - that people are too likely to file frivolous lawsuits and collect money damages that they don't deserve?

Q: Who thinks that the money awarded in some lawsuits is too much, like people getting millions of dollars for spilled coffee or inadvertent birth injuries?

Q: Who has difficulty with awarding money for "pain and suffering" and "loss of enjoyment of life"?

Q: What do you think about ads on TV where personal injury lawyers promise that they will recover lots of money for you? 5

These questions, when posed by a personal injury lawyer, are important for her to determine the issues that potential jurors may feel strongly about. It allows attorneys to discover the opinions most harmful to their case. It is important to discuss and discover juror bias early in the case (jury selection), rather than later when the jury has already been chosen and is ready to deliberate.

1 ACI American Conference Institute. Annual Advanced Forum on Obstetric Malpractice Claims. November, 2020. Philadelphia

2 Ibid Causation in Birth Injury Litigation

3 Ibid Perinatal Brain Injury

4 D. Shane Read, Winning At Trial; National Institute for Trial Advocacy 2007. pgs 48-49

5 Ibid pgs 50-51

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