How To Build A Catastrophically Injured Infant Case by Paul M. Mann In the medical malpractice field there are certain cases that often seem to be "overwhelming", "impossible" and "devastatingly difficult, both financially and psychologically" for the lawyer to handle. The catastrophically injured case arising out of a birthing incident is one of those cases. This paper is only intended to give a broad overview of a generalized picture as to how to properly build a case that is to be taken to trial. The first rule of thumb in doing any of these cases is to ensure that the theme and your perception of the case is "the client always comes first". Having that in mind, the overwhelming disbursements that you will then incur in building the case, in reviewing the case, in making up your mind as to whether there is a case, whether there is liability, causation, and damages, and in what amount the damages will be, will then pale in comparison to the satisfaction that you will get out of doing a very fine job for very grateful parents and the child. The first interview is often a tremendous waste of time, but is a necessity. This is the time when you have an opportunity, at first blush, to get the details down as specifically as you can by taking a very thorough clinical history of the mother, the father, whether or not there was any history in the family of cerebral palsy, genetic Summer, 2003 abnormality, infectious diseases, tim- ing, whether the woman has had problems with respect to giving birth or getting pregnant previously, whether the woman is allergic to any medications, whether the husband is allergic to any medications, whether any of the other members of the family have ever had children who have suffered the same fate, albeit not by negligence, etc. This interview probably takes about advise your clients that you don't know what the answer is and that it is a fact- finding mission. You advise them of the limitation period, and of your need to know every doctor, pediatrician, nurse, and any other health care professionals that have been in their lives to this point in time (usually the child is about 2 years of age or more when they first attend at your office). This office asks for a written memorandum that is to be prepared by the parents over a one-month period of time, independently of each other to be faxed to this office as working papers from which we can "get off the mark" and write the treating physicians, hospitals, physiotherapists, occupa- tional therapists, attending nurses, surgeons, doctors, hospitals, etc. In the first interview, however, we have the authorizations pre-signed so that once the memoranda are done and sent in to us in a month, we can obtain the paperwork immediately because they will include the name, address, telephone, fax number and email address of all of these people. I have found that it is in the best interests of the clients to get them involved in the case not only financially but also emotionally. They should know that they have to provide me with answers - very basic answers - as to what happened, when it happened, what they think went wrong and who their "target" is. When I get a set of parents who come in and indicate "we want to sue them all" I have to advise them that in all likelihood it is not "all of them" who are negligent; that the negligence probably occurred over a very short duration and probably was the fault of only one or two individuals or the hospital for failing to have proper policies, protocols, procedures or guidelines. During the first interview I also give them the law in layman's terms, i.e. what is substandard care, what is causation and what are damages. They all want to know "how much money are we going to get". I advise them that I do not know how much money they're going to get and that is the last stage that I will be developing in their case because the first and most difficult stage is causation. Unlike other aspects of civil 7 2.5 hours at which time of course you (my retainer is usually about"$l0,000.00), THE,LITIGATOR
Transcript
How To Build ACatastrophically Injured
Infant Caseby Paul M. Mann
In the medical malpractice fieldthere are certain cases that often seemto be "overwhelming", "impossible"and "devastatingly difficult, bothfinancially and psychologically" for thelawyer to handle.
The catastrophically injured casearising out of a birthing incident is one ofthose cases.
This paper is only intended to give abroad overview of a generalizedpicture as to how to properly build acase that is to be taken to trial.
The first rule of thumb in doing anyof these cases is to ensure that thetheme and your perception of the caseis "the client always comes first".Having that in mind, the overwhelmingdisbursements that you will then incurin building the case, in reviewing thecase, in making up your mind as towhether there is a case, whether thereis liability, causation, and damages, andin what amount the damages will be,will then pale in comparison to thesatisfaction that you will get out ofdoing a very fine job for very gratefulparents and the child.
The first interview is often atremendous waste of time, but is anecessity. This is the time when youhave an opportunity, at first blush, to getthe details down as specifically as youcan by taking a very thorough clinicalhistory of the mother, the father,whether or not there was any history inthe family of cerebral palsy, genetic
Summer, 2003
abnormality, infectious diseases, tim-ing, whether the woman has hadproblems with respect to giving birth orgetting pregnant previously, whetherthe woman is allergic to anymedications, whether the husband isallergic to any medications, whetherany of the other members of the familyhave ever had children who havesuffered the same fate, albeit not bynegligence, etc.
This interview probably takes about
advise your clients that you don't knowwhat the answer is and that it is a fact-finding mission. You advise them of thelimitation period, and of your need toknow every doctor, pediatrician, nurse,and any other health care professionalsthat have been in their lives to this pointin time (usually the child is about 2 yearsof age or more when they first attend atyour office).
This office asks for a writtenmemorandum that is to be prepared bythe parents over a one-month period oftime, independently of each other to befaxed to this office as working papersfrom which we can "get off the mark"and write the treating physicians,hospitals, physiotherapists, occupa-tional therapists, attending nurses,surgeons, doctors, hospitals, etc.
In the first interview, however, wehave the authorizations pre-signed sothat once the memoranda are done andsent in to us in a month, we can obtain
the paperwork immediately becausethey will include the name, address,telephone, fax number and emailaddress of all of these people.
I have found that it is in the bestinterests of the clients to get theminvolved in the case not only financially
but also emotionally. They shouldknow that they have to provide me withanswers - very basic answers - as towhat happened, when it happened,what they think went wrong and whotheir "target" is.
When I get a set of parents whocome in and indicate "we want to suethem all" I have to advise them that inall likelihood it is not "all of them" whoare negligent; that the negligenceprobably occurred over a very shortduration and probably was the fault ofonly one or two individuals or thehospital for failing to have properpolicies, protocols, procedures orguidelines.
During the first interview I also givethem the law in layman's terms, i.e.what is substandard care, what iscausation and what are damages.They all want to know "how muchmoney are we going to get". I advisethem that I do not know how muchmoney they're going to get and that isthe last stage that I will be developing intheir case because the first and mostdifficult stage is causation.
Unlike other aspects of civil
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2.5 hours at which time of course you
(my retainer is usually about"$l0,000.00),
THE,LITIGATOR
litigation, liability is not the real hurdle;in 90% of the cases, it is causationwhich is the real hurdle.
Accordingly, after I have receivedtheir documentation and have met myclients for a second or third time; afterI've reviewed all of the documentationand have sent out requests for all thehospital records and have receivedsame (usually around the fourthinterview, having spent all of theretainer on just obtaining this informa-tion by the way), I advise them that inmy considered opinion, after speakingwith three or four "ghost doctors"(doctors who will assist me ininterpreting what went on at thehospital, but will not testify or give me areport), I then advise them that we willbe looking at causation first.
taken by the parents indicating that Iwant any Polaroid shots, photographsor anything of that nature taken while inthe hospital (all parents take pictures ofthe baby in the mothers' arm, etc.), thefirst birthday, the second birthday, andany other video tapes they have around,special events including Christmas,birthday parties, anniversaries, sum-mer holidays, etc.
I then have my own videographerreduce that down to about 37 minutes,but retain the master video tapebecause that is the foundation for thevideo tape of my videographer.
where they live, etc. I have them takepictures of their house, where the babysleeps, where the baby "hangs out",what the nurses do, how the baby isstimulated, starting at 7:00 a.m. andending when the baby goes to sleep.
I also video tape any of the specialequipment needed for a very compro-mised child, such as oxygen tanks,respiration devices kept in the house,etc.
It is also equally important to
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how young they may be.From that you will glean that the
centre of the life of the whole familyunit IS the well-being of that
With respect to causation, I oftenensure that I have a perinatologist, apediatric neurologist, and a pediatricneuroradiologist on side, together withCAT Scans, MRls, and slides takenoriginally. These are reviewed by myexperts who, based on the MRls whichare best taken at 3 and 5 days afterbirth, can detect the amount of damagedone to the brain as a result of thebirthing injury.
I also involve at this point a fetalheart monitor specialist to review thefetal heart strips in order to find outwhen the "threshold of injury" wascrossed. In this regard I use probablythe foremost fetal heart monitor stripanalyst in North America.
At about this time, while the letters
documents, and the reports are not yetreceived, I call up a series ofobstetricians and gynaecologists who Ianticipate I will use, as well as a nursingexpert, and put them on retainer inorder to secure their involvement.
By this point in time I have alsodeveloped what I think is a "theme ofthe case". By that I mean a very short,quick, catch-word or phrase that willalways bring it back to my attention.
during the laboring process when infact he should have been on call or atthe hospital - not at home, not out to asocial gathering (all of these thingshave happened in various cases) - I usethat as the theme of the case.
If this is a birthing case, I am notoverly suspicious of those who haveretired, or professors of obstetrics andgynaecology, although I know verywell that at trial the defence will cross-examine on their credentials and try toindicate that they are no longerpracticing.
One must always be cognizant thatthe liability issues in these cases are
tried against the backdrop of thestandard of care as it existed at the timeof the birthing procedure. On the otherhand, causation is determined byestablishing the standard of careemployed in coming to their conclu-sions as to the cause of the injury as ofthe date of trial. Those are twodifferent time periods.
Causation experts can look back,review the whole situation, and comeup with an opinion based on the currentstate of medicine and not the state ofmedicine that existed 8 or 10 yearspreviously, when the child was born.
It is absolutely crucial to havepediatric neurologists and pediatricneuroradiologists on side in connectionwith these malters.
As soon as I have the CAT Scans
together with any other enclosures(e.g. written reports contained in thehospital records) to my pediatricneuroradiologist and pediatric radiolo-gist for the "timing of the threshold ofinjury". I also send the fetal heartmonitor strip to my expert.
or an infectious diseases expert, in casethere is the contention that the cause ofthe cerebral palsy was a geneticabnormality or maternal bacterialinfection which went undiagnosed andwhich was asymptomatic.
If all of those experts should turn up
some of those experts turn upnegatively, I have a long, detailedmeeting with them, often together, inorder to hash out the causation issuesand the pit-falls. I advise my clientsregarding the results of the reports, andoften send the expert reports on tothem. If my clients are notsophisticated enough to understand thereports, I'll provide them with a briefsummary of the contents of the reports;then they cannot be asked to producethem on examination for discovery. Itry to obtain all of these reports prior to
At that point in time, especially witha"birthing"case,"I"insist"on"a"video"tape
insight as to how the family is doing,That"gives"me"some"kind"of"an
consider any siblings, so I ask them towrite"me"a"very"short"note"no"matter
compromised child.
are""going""out""for""information""and
For instance, if the doctor was asleep
THE,LITIGATOR Summer, 2003
and the original MRIs, I send them,
Upon receipt of those reports withrespect"to"causation.""I"may"also"hire"ageneticist"to"review"the"documentation
positively, I then turn to liability. If"all"or
any reports and will I produce them, I
produce them, but I will produce themin accordance with the Rules of Civil
I then turn to liability and obtain myobstetrical opinions from well-knownpeople in the field.
You must remember the localityprovisions. If this is a GP acting as anobstetrician and gynaecologist, it is
a GP who delivers babies and practices
Bear in mind that if the child wasborn in Toronto, it is wise to get yourliability experts from another teachingcentre, such as London, Queens
In the end it often ends up with twouniversity teaching centres (hired by
university teaching centre (usuallyhired by the CMPA).
If the case turns out to beexceptionally difficult or there are
of the border to Johns Hopkins,Harvard, Princeton, Stanford, USC orUCLA to obtain my experts.
The obstetricians and gynaecolo-gists are going to want all of the hospital
records, together with the antenatalForm # I and antenatal Form #2. They
dependant upon the evidence thatemerges from the examinations fordiscovery.
Discoveries then proceed. Notethat the pleadings are issued so as not tomiss a limitation period, but arewithheld for the maximum six-monthduration, before being served. This willenable you to have all of your expertslined up prior to discoveries. Afterdiscoveries, I send out the transcripts ofall examined parties to each and everyexpert for their commentary.
At that point I will ask my experts
report for the doctor, will I meet thedoctor while he or she is writing thereport, or will ask the doctor to alter hisor her report. After all it is the doctor(expert) who is putting his or herreputation on the line in not only givingthe report but knowing that ultimatelythey may very well be testifying at thetrial of the action.
Assuming that the liability reportsare in my client's favor with respect to
proceed to build the case on damages
experts.I also have my clients provide me
with tax receipts so that I can establishthe Family Law Act claims for thevalue of their services. Notwithstand-ing that Section 61 of the Family LawAct limits claims to either costs forcaring for the child or loss of income, Ibelieve that the claimants are entitled toboth and that this is supported by caselaw.
One should look very carefully inanalyzing these cases at the CV's andresumes that are produced by your ownexperts as well as the experts for thedefence. All of the articles by theexperts on the defence and by yourown experts should be examined forpurposes of possible cross-examina-tion, and to protect your own experts in
written papers that ultimately may
Once I'm in receipt of the futurecare costs analyst's report, I then turn
I also retain very early on aforemost life expectancy expert toaddress longevity issues involving verycompromised children.
An accountant is often very usefulwith respect to future loss of income as
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When asked on discovery if I haveexaminations"for"discovery.
answer,""I"have"reports"and"I"will"not
Procedure".
often"crucial"to"obtain"an"opinion"from
medicine"in"a"very"similar"local.
(Kingston), Ottawa or Hamilton.
the""Plaintiffs)""going""against""one
quirks,"I"have"no"hesitation"going"south
will"give"me"a"provisional"report"that"is
for a final report, but only afterdiscussing the matter with me. At"nomaterial,time,will"I"attempt"to"convincea doctor of my position, will"I"write"the
one of the parents will probably give uptheir job to take care of the child.
My economist will be provided thelife expectancy and future care costsreports, and will have talked with me
the education of the parents, theeducation path of the child had he or shenot been compromised, and the earningvalue.
Once I have all of these reports
my Offer to Settle, on the defence.While there are many firms out therethat believe you should wait until thelast possible moment to serve the
them as expeditiously as possible, in thebest interests of the client, to attempt toresolve this matter by getting the claimbefore the executive committee of theCanadian Medical Protective Associa-tion (CMPA). It is they who give theinstructions to the defence lawyersregarding whether to mediate, settle,
Even though you appear to have an"iron clad" case, very often the CMPA- notwithstanding what your expertshave to say - will come up with theirown experts. The reports they will thenserve upon you will seem to be fair andreasonable, unless you have theexpertise to pick those expert reportsapart. I normally send those expertreports on to other experts for
examination. They do not producereports for me; they merely analyze theexperts' reports produced by thedefence and assist me in preparing my
Having said all of that, your case isnow "built", subject to filling in the
"The gaps" are very often lay-witnesses who can actually bring this
of the Judge or Jury. They are oftengrandparents, siblings, caregivers, at-tendants, friends, or spiritual leaders.
Anecdotes go a long way. The lack
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of holiday time for the parents goes along way. The fact that their lives havebeen completely up-rooted, that theyhave had to re-mortgage their home,
are available to them are completelyinappropriate, must be brought to theattention of the trial Judge.
If there is a nurse to be inculpated orany other employee of the hospital, or afailure of hospital policies, protocols,procedures or guidelines, I get one ormore similar hospitals (e.g. a primaryhospital, a cottage hospital, a secondarylevel hospital, or a university teachingcentre) to hand me their policies,protocols, procedures and guidelines
available,
pediatrician should be on
should be on board,
should be on board with re-
You should be aware of theguidelines of the Canadian Obstetricaland Gynaecological Society withrespect to Apgar scores which tests
minutes after birth and are scored out
the baby, respirations, heart beat,reflexes, and tone. Each of the
points.
communication, I also believe that if
medical professionals were more upfront with their patients about whathappened in the operating room or in
so relieved by their candor that theyprobably wouldn't sue. On the otherhand, medical professionals who wantto alter their records, or hide or destroydocuments, will always be found outand will have to confront theconsequences.
A pathologist should often be hiredwith respect to the nature of the
in case the defence alleges abruptioplacenta or silent abruption. Thedefence may attempt to raise severalother issues, for instance that "this babysuffered injury 5 months prior to thelaboring process when the plaintiff wasinvolved in a motor vehicle accident",
Ischemic Encephalopathy", otherwise
of those things - 98% of all babies bornwith cerebral palsy have an unknown
scientific studies, but it is only valid to
of injury which occur as the result of thenegligence of doctors are in the handsof lawyers at any material time to
factor being due to negligence is onlybecause 98% of the populationbelieves, rightly or wrongly, that thecause was something other than
will be next to impossible for reasonsincluding the public's "wall of silence"perception of the medical profession.
If the cause of the catastrophic
poor resuscitation, or failure to performa C-section, or be it some other cause,I would always be calling as experts,
and pediatric intensivists as my expertsas well.
result of failure of the nursing staff toput the doctor on notice that the baby is
in"fetal"distress."In"this"case,"of"course,you"will"hire"nursing"personnel"whohave a history of working in obstetricsand"gynaecology,"to"give"you"an"opinionas to the standards required of a nurse.
If the doctor misses the fetal heartstrip monitors' reading and doesn't"talkto the nurses; shows up at the lastminute and is unaware of earlydecelerations, late decelerations, or
as to any fetal distress during the
lack of accelerations; and hasn't kept
laboring process, this can be held out tobe negligence.
himself or herself advised or informed
Rely on your witnesses. Understandthat this is not your case, - this is yourclient's case. Understand that you arethe advocate, that you are not thevictim. Understand that you will doyour best to achieve the optimal endsfor recovery of monetary damages forthe negligence of the doctors, nurses orhospital, but also understand that this isnot monetary gain for you, this ismonetary gain for the client. After all,
the client comes first.At trial you must make sure that the
Judge understands as much medicine,
much medicine as the experts are goingto talk about; that the Judge has aglossary of medical terms. not enteredas an exhibit but as an aid to memory sothat he or she can reference terms thatdoctors use in such cases.
Thc experts should explain thenature and use of fetal heart stripmonitors, the rules of oscillation, andany guidelines handed down by theCanadian College of Obstetrics andGynaecology should be entered asexhibits.
The fetal heart strip should be blownup on 5 by 8 foot boards so that thedoctor can pin-point exactly where theacceleration is, what it means, theeffect on the baby, what a decelerationis, what a late deceleration is, what anearly deceleration is and how it all leadsto the conclusion offetal distress. Fetaldistress should be explained in no
uncertain terms as should othergynaecological terms.
The causation experts shouldexplain what an MRI is, what a CATScan is, what the purpose of thesediagnostic tools is, their"reliability, etc.
On a final note, when it comcs to"building a catastrophicallycompromised case",""common""senseshould rule. Another principle that Ifollow, and that I"think everyone shouldfollow, is that regardless"whether"this"isyour first, second or third "baby case",you should always have able seniorcounsel to assist you with respect to thepreparation or presentation of thismaterial.
Remember that the defence will bevery well prepared, will understand allof the scientific studies, will be veryeffective on cross-examination, andwill have done this many, many times.
Medical Malpractice Section andPaul M. Mann,,is,,chair,,of,,the,,OTLA
