A baby girl suffered permanent nerve damage to her right arm and shoulder, following a traumatic birth in which her mother claims the attending physician was negligent.
Boston birth injury attorneys recognize that one of the most critical components in these kinds of cases is presentation of appropriate expert witness testimony. It’s not enough to show the actions of the doctor proximately caused the injury to the child, as would be the standard in an ordinary negligence claim. Rather, the testimony of a similarly-situated medical professional must establish that the defendant’s actions breached the acceptable standard of care.
The case of Lawrey v. Kearney Clinic, P.C., et al., reviewed recently before the U.S. Court of Appeals for the Eighth Circuit, is a prime example of what can happen when the plaintiff’s chosen medical expert fails to lay this foundation in his or her testimony.
Court records indicate the child was born in 2008 via vaginal delivery. However, it was not an easy labor, and the child apparently suffered from a condition called shoulder dystocia. This is when parts of the shoulder get stuck behind certain parts of the mother’s bones or joints.
This condition can result directly in injury to the brachial plexus, which is the grouping of nerves that run from the spinal cord to the arm and shoulder. Usually, those injuries to the child are temporary. However, in some cases, the resulting injury can be permanent.
Sadly, that was the case for this child.
Prior to the birth, during prenatal visits, the doctor had discussed this possibility with the mother, based on the fact that her first child got stuck in the birth canal and also that the child she was carrying was larger-than-average. Although the doctor did discuss the possibility of the child becoming stuck, the doctor reportedly failed to make any mention of the possibility of permanent injury. For this reason, the mother says, she opted for a vaginal delivery rather than a cesarean section.
Cesarean sections, although they carry their own set of risks, can help to avoid numerous birth injuries because they eliminate the possibility that the baby must struggle to pass through the birth canal. Doctors who expect a difficult delivery can plan in advance for surgery to avoid the chance of a serious problem.
Here, the mother filed a lawsuit alleging medical malpractice stemming from negligent treatment resulting in injury. She further claimed lack of informed consent, based on the fact that the doctor should have warned her that a vaginal delivery could have caused permanent injury to her child. Had she known this, she says, she would have opted for a surgical delivery.
Before the case went to trial, two medical experts testifying for the plaintiff indicated their belief that maternal forces are never the cause of the kind of nerve injuries suffered by this child, and are rather always the result of excessive pulling applied by the physician. The doctor sought to preclude both doctors from mentioning this in court. The trial court granted this motion, and further barred any testimony indicating the doctor had applied excessive traction, as there was reportedly no proof of that.
Barred from testifying about what they believed caused the injury, the physicians were only able to testify on the issue of lack of informed consent.
The doctor admitted at trial that she had failed to warn of permanent injury, but said she did warn of injury.
The defense then pointed to the guidelines laid forth by the American Congress of Obstetricians and Gynecologists, which advise doctors to consider performing a c-section to prevent possible nerve damage if one of three conditions exist:
- The mother is diabetic and overweight;
- The mother is non-diabetic, but the child weighs over 11 pounds;
- Or if a prior delivery was complicated by this type of injury.
None of those three conditions were applicable in this case, and the defense’s expert witness testified this meant the doctor hadn’t violated the acceptable standard of care in not warning of possible permanent injury.
A jury agreed.
Upon appeal, that decision was affirmed.
If you are injured by medical malpractice in Massachusetts, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.
Lawrey v. Kearney Clinic, P.C., et al., June 4, 2014, U.S. Court of Appeals for the Eighth Circuit
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