Litigating the Brain Damaged Baby Case From the Initial Interview to Trial

 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 and emerging technologies 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.  If you need any kind of information this topic click here : toxic baby formula lawyer

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 sizee 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.