Daniel S. Weinstock of Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig

Over the past 20 years, there have been dramatic changes in Pennsylvania—and across the United States—in how birth injury cases are litigated. While tort reform sparked many changes at the state level, other changes have been slow-rolling, and have involved advancements in medical technologies and evolving attitudes of patients, doctors and the public at large.

Below I offer a retrospect on the legal game changers that, in my opinion, have shaped the past two decades of birth injury litigation and my thoughts on what birth injury litigators should expect (and prepare for) in the future.

The Rise of the Hospitalist

According to The Society of Hospital Medicine's "State of Hospital Medicine Report," published in 2018, there are more than 60,000 hospitalists practicing in the United States, a significant increase over its estimate of 44,000 in 2014. Indeed, a survey conducted in 2010 found that nearly 40% of National Perinatal Information Center/Quality Analytic Services hospitals use OB hospitalists. It is estimated that, in 2014, there were more than 1,700 OB-GYN hospitalists working at more than 243 hospitals in the United States, representing approximately 10% of hospitals that offered obstetric services, according to the American College of Obstetricians and Gynecologists (ACOG).

While many OB-GYNs surely enjoy the improved quality of life that comes with having fixed hours as hospitalists or not having to get up in the middle of the night to deliver a baby or cancel weekend plans, my personal observation in dealing with clients (and potential clients) is that when things go wrong during labor and delivery they are quicker to consult with a lawyer when they have not formed a personal bond over nine months with the doctor who delivered their baby.

Updated Standard for Fetal Monitoring

In the 1960s, electronic fetal monitoring was introduced into the delivery room with high hopes of reducing cerebral palsy, and other life-altering impairments or disabilities, and death, caused by a severe lack of oxygen to a baby during childbirth. Initially, terms like "fetal distress" and even "ominous" were used when a baby's medical situation was precarious. Later, the readings were divided into two categories—reassuring and nonreassuring—and doctors differed greatly in their assessment of whether a non-reassuring tracing meant that the baby was at serious risk and required immediate delivery. Plaintiffs counsel, in turn, had unbound opportunities to make the case that the doctor should have delivered the baby when the tracings were nonreassuring.

But in 2009, defense attorneys were handed a legal game changer when the ACOG adopted new guidelines that divided the monitor readings into three categories. In short: In Category I, the tracings are normal, and no action is required; in Category II, further evaluation and monitoring is required; in Category III, the tracings require immediate medical intervention, usually a cesarean delivery.

Category II is problematic for plaintiffs in that the defense can argue that the standard of care does not require delivery, even though it often does. Nevertheless, OBs are afforded cover when a baby with Category II tracings sustains a birth injury.

Also, the change in nomenclature provided benefit to defendant doctors. For obvious reasons, the terms "fetal distress," "ominous" and "non-reassuring" provoke a stronger jury reaction than the medical categories.

Placental Pathology

Beginning in the 1990s, defense counsel began relying upon placental pathologists for alternative explanations to suggest that a baby's medical issues were predestined, rather than caused by intrapartum events, or that the child was prevented from leading a normal life before the birth injury or has a reduced life expectancy and will not require medical care.

Creative medical theories that I have seen advanced include genetic causes, first- or second-trimester oxygen problems and a litany of other findings jurors cannot possibly understand without a medical degree and pathology training.

While jurors, in my opinion, are not swayed by tedious scientific testimony interpreting pathology slides, that has not stopped the defense from trying. Indeed, plaintiffs' counsel must be prepared with a rebuttal witness to refute whatever the defendant's placental pathologist attempts to throw against the wall.

Damages and Fee Caps

While I acknowledge that no one is crying a river over fee caps for plaintiffs attorneys in birth injury cases, what demands public outcry are the victims of medical negligence at birth who have essentially had the courthouse door slammed in their face because of state tort reform laws.

The short explanation is that birth injury cases require a staggering bankroll—$200,000 to $500,000 is not unusual—and from a purely business perspective it does not make sense for plaintiffs counsel to invest significant time and money in litigation where noneconomic damages, which are often the largest component of a birth injury recovery, are capped.

To be clear: whether seriously injured children and their families have access to legal representation and ultimately justice is very much contingent upon the status of tort reform in the state where the child was born.

According to the Center for Justice & Democracy at New York Law School, there are 24 states that cap non-economic damages in medical malpractice cases. Also, a few states have "hard caps" on economic damages, meaning that recovery is limited regardless of the projected cost of the child's future medical care. In "hard cap" states, as with states that cap non-economic damages, it is not economically feasible to bring birth injury cases at all.

Also, some states, such as Florida, have essentially eliminated any possibility of meaningful recovery by setting up no-fault birth-injury funds to provide medical care, much like what is found under workers' compensation law.

Neonatal Therapeutic Hypothermia

Perhaps the biggest game changer for infants deprived of oxygen due to birth complications was the conclusive establishment by the late 2000s of Neonatal Therapeutic Hypothermia, also known as "Cooling Therapy," as an effective treatment to reduce, or even prevent, permanent brain injury to term newborns.

The treatment aims to slow or stop damaging effects of birth asphyxia by lowering the infant's body temperature for up to 72 hours. It involves placing the newborn on a waterproof blanket that contains cool circulating water that can reduce the infant's temperature as low as 91.4 degrees Fahrenheit. After three days of the treatment, the caregivers allow the newborn's temperature to return to normal.

Cooling therapy has been shown to reduce risk of death and disability by ages 18 to 22 months as compared to routine care without the treatment. However, the therapy must be initiated within a few hours of birth, and in 2014, I brought what I believe to be the first medical malpractice lawsuit in the United States for failure to transfer a significantly depressed baby to a regional hospital early enough to receive this therapy.

Today, I am pleased to report that I have turned down potential birth asphyxia cases because, notwithstanding medical negligence at birth, the therapy was so effective that the child did not sustain permanent injuries.

The Quagmire of Life Expectancy and MCARE

The stated purpose of Pennsylvania's Medical Care Availability and Reduction of Error (MCARE) Act, according to Section 102, is to assure health care is available, with medical providers able to purchase liability insurance while assuring that any "person who has sustained injury or death as a result of medical negligence by a health care provider must be afforded a prompt determination and fair compensation."

Section 509 of MCARE generally contemplates that a defendant will satisfy a judgment for future medical care costs that exceeds $100,000 by purchasing an annuity. Payments stop at death.

Often in birth injury cases, the defense will attempt to offer testimony that a minor-plaintiff has a shortened life expectancy and thus the jury should not determine future medical care costs for any years after the defense claims life expectancy will conclude. But regardless of what life expectancy is used to determine the annuity costs, there is a 50% chance that the child will live longer than that life expectancy and a 50% chance that the child will live shorter than such life expectancy. When the jury declines to determine future medical care costs after what it determines to be a shorter life expectancy, then the minor-plaintiff has a 50 percent chance of being denied the "fair compensation" that MCARE is intended to provide when the plaintiff exceeds the life expectancy.

In contrast, pursuant to MCARE not one penny of future medical bill damages will be paid if the minor-plaintiff dies early, and there is absolutely no possibility that the minor-plaintiff or the minor-plaintiff's family will ever receive a "windfall" from the annuity.

What to Expect

The naysayers who resist medical malpractice lawsuits would never dream of denying fair compensation to children, in wheelchairs, who through no fault of their own, suffered serious, life-long injuries at birth. For that reason, notwithstanding tort reform, I believe there will always be a place in U.S. jurisprudence for plaintiffs attorneys who are willing to take on these highly complex cases. Our role will evolve, and in fact has already evolved, to require us to educate the public about the human price of denying children the lifelong medical care and developmental support that they need.

With continued medical advancements and a challenging legal landscape, I believe that firms that do not presently regard birth injury cases as a distinct legal practice area will need to do so sooner rather than later. Extensive medical and legal knowledge, significant trial experience and substantial financial resources must "gestate" for many years within a law firm in order to best serve children who start their lives under the most tragic circumstances.

Daniel S. Weinstock is a partner at Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig. He can be reached at [email protected].