BPI Family legal survey results

I had previously sent out a family survey so I could get an idea of what other families have experienced. I received completed survey forms back from families across the country. I greatly appreciate their honesty and their time. I know this is not an easy subject to talk about. Hopefully, your experiences can help another family.

Did you seek legal advice after your injured child's birth?

100% of respondents sought legal advice after the birth of their child. Reasons varied, but some of the most common ones were:

Financial concerns for the child's treatment needs, now and and in the future.
Feeling as if the doctor was dishonest about the cause of the injury.
Suspecting negligence on the part of the doctor.
Wanting to prevent the doctor from injuring other children.
Learning that their child's injury could have been prevented.
Doctors need to be held accountable for their actions.

How long after your child's birth did you speak to an attorney?

The answers ranged from "immediately after birth" to 5 years after birth. The majority of parents consulted with an attorney within the first year after after their injured child was born.

Did you decide to pursue legal action against your doctor or midwife?

83% decided to pursue a malpractice case against their doctor/midwife.

Was it difficult to find an attorney to take your case?

30% of parents had problems finding an attorney to take their case. Some indicated that they reside in smaller communities, which tend to favor doctors. It can be difficult to get a fair trial.

Did you request copies of your medical records?

99% of parents indicated that they had requested copies of their records.

Did the labor and delivery records accurately reflect the delivery complications and injury to the baby?

66% said No
22% said Yes
12% were unsure

What was the outcome of your trial?

Went to trial with verdict in favor of family - 9%
Went to trial with verdict in favor of doctor - 9%
Claim settled out of court - 31%
Case is currently pending - 31%
Other (gathering info, looking for attorney, etc.) 20%

Do you know if your physician has had other cases filed against him/her?

52% of parents found that their doctor had other malpractice lawsuits filed against them. Some indicate more than one case that they were aware of - the average was 3.

What was the most difficult part of the legal process for you and your family?

The "let down" after the trial was lost.
Facing the doctor and hearing them lie during deposition and trial.
Re-living every detail over again and again.
Bringing a lawsuit makes it difficult to have another child in the only hospital in a small community.
The emotional roller coaster of deposition and mediation and/or trial.
It is all very time-consuming.
Hearing the defense attorneys blame the mother for the child's injury.
Having a physician that you trusted lie in court.
Doing all of the research; gathering medical records, interviewing attorneys, learning about trusts and guardianships.
Finding a qualified attorney. One family reports that it took 10 years!
The doctor not taking responsibility for the injury.

How has your child's injury affected your family emotionally and financially?

Financially, bpi injuries have been difficult for all families. Even with good medical coverage, there are still co-payments and deductibles. There are often travel expenses as well. Many families have no insurance or have difficulty getting surgeries and other treatments covered. Some parents report quitting their jobs to continue therapy for their child at home. Often there is a limit to the number of PT/OT visits insurance will allow. It isn't as if the injury goes away when the insurance benefit maxes out.

Emotionally, parents describe their experience as "draining", "devastating" and "stressful". They report feelings of anger, fear. sorrow, helplessness and frustration. Most mothers mention feeling a tremendous amount of guilt and many suffer depression. Some parents have divorced because of unresolved issues surrounding their child's injury.

Children often feel self-conscious about their injury as they grow older. They may feel frustrated that they can't complete certain tasks. They may develop anxieties about medical treatment due to multiple surgeries, doctor visits and therapy sessions early in life. In extreme cases, some children may develop other emotional problems related to their injury such as depression, eating disorders and self-mutilation.

Several parents mentioned that one of the most difficult things was explaining to the child what has happened to them. Eventually children become curious and they want to know why they are different. It is difficult to know what to say. For awhile, Kylie would accept it when we told her that she got stuck when she was being born and her arm got hurt. Now that she's older, she wants more concrete answers. I have resisted the urge to give her the OB's phone number - maybe they will have an answer for her!

Do you have any advice for families who may be considering litigation?

It is a hard test of faith. Be prepared to go on no matter what the outcome is.
Video tape the birth if at all possible.
Don't stress about it. Let God and the lawyers handle it.
Pursue it for your child and to find closure for yourself.
Keep an open mind. Be open to consider a fair settlement.
Request copies of your medical records immediately after delivery - before anything can get lost or changed.
It is important to file suit early so that hospital staff can remember the details of your delivery. Also, every state has a statute of limitations - the time frame in which you can file a suit.
Tell the truth and be a very clear witness.
Keep specific notes about conversations between you and your doctor regarding your child's injury, including dates.
Find an attorney that specializes in birth injury claims. It should be someone you are comfortable with because you will be spending a lot of time working with them.
Interview more than one attorney.
BPI cases are expensive to win. Be prepared that much of your award will go to cover attorney fees, expert witnesses and trial costs. The remainder will likely be structured into a trust fund to provide for your child's needs in the future.
Have a life care plan done so that you can truly understand how your child's injury may impact them in their adult life.
Do what you need to do to secure a future for your child. They deserve the best care we can give them.
Hang tough and try not to let it all get to you. It can be difficult to sit by and let someone lie and attack your judgment and credibility as a parent. It is their job to make you look bad.
Prepare yourself for the long haul. Some cases take 5 years or longer.
Don't doubt yourself. If you feel like it is the right thing to do, go for it!

One area that I would like to explore in the future is the doctor/patient relationship. I didn't include it in this survey but I am curious to know how doctors handle the situation with parents when a birth injury occurs. It seems that there is a problem with honesty and integrity in the medical profession, and unfortunately our children are suffering because of it.

Most parents tell me that their doctors minimized their infant's injury or avoided discussing it at all. Very few report that the doctor called to check on the baby in the weeks after birth. Only a few parents I've spoken to were referred to specialists by the obstetrician who delivered the baby. One brachial plexus surgeon told me that in over 15 years of practice he has had only one obstetrician call for advice after an injury. Even pediatricians seem be reluctant to give parents information. I'm not sure if that is because they are uneducated about bpi or trying to keep the obstetrician out of trouble. I am afraid that our health care system has come to the point that some doctors are more interested in covering up mistakes than doing the right thing. I truly think that most parents would be more hesitant to bring suit against a doctor if they perceive that the doctor cares and has tried to help them.

I am often asked if the doctor that injured our daughter is still practicing. The answer is "yes"! Evidently, multiple malpractice suits do not endanger a doctor's standing with the Missouri Board of Healing Arts. The board does not necessarily receive information about every suit filed against a doctor. Action is only taken against a doctor's license if a complaint is filed with the board and found to have merit after investigation and review by a committee. If you settle out of court, the board may never know a case was filed. Either some doctors aren't disclosing their litigation history on their license renewal application or the board isn't paying attention. Somewhere, the ball is being dropped.

I realize that a lawsuit is not always an indicator of an incompetent doctor, but multiple suits for the same mistake should raise a red flag. We count on the board to guarantee patient safety by setting practice standards and ensuring the doctors they license are competent to uphold those standards. State licensing boards need to lead the way in getting doctors who repeatedly make mistakes out of practice. Since a minority of doctors are responsible for the majority of malpractice lawsuits this measure would be more likely have a positive impact on the current "malpractice crisis" than tort reforms.

It would be helpful if hospital administrators kept better tabs on their doctors. Careful and frequent auditing of records might help reduce the incidence of records being manipulated in injury situations. Record keeping is something that is highly stressed during medical training, however 66% of our respondents reported that their medical records were not accurate. Most likely, these doctors are leaving out information that could be used against them later in court. If hospitals do keep track of birth injuries, the true numbers are likely underreported. Nurses and pediatricians involved in neonatal care are usually aware of birth injuries but are hesitant to inform the parents or confront the obstetrician about it. Medical staff typically know the habits of the doctors they work with. They wouldn't want to be treated by these doctors themselves, but they don't do anything to keep them from harming patients. It is unfortunate that the medical profession isn't better about policing itself because the few incompetent doctors out there are giving the entire profession a bad rap.

Many hospitals do not allow parents to video tape the delivery because it might be used against the doctor if there is a problem. Birthing centers would be wise to install their own cameras in the delivery rooms and record every delivery. Similar to cameras in police cars, this could be used as evidence of what truly happened during the incident, including what the staff did correctly. It would encourage doctors to be careful and if there is a problem it would be a good teaching tool for the entire obstetrical staff in how to avoid future occurrences.

The insurance industry has led us to believe that caps on malpractice awards will help reduce the rising cost of premiums. That is like trying to save the Titanic by bailing out water with a Dixie cup. The root of the problem is that there are doctors who repeatedly make mistakes and they are allowed to continue to practice, subsequently causing more damage to more patients. The insurance companies continue to insure them as long as they want to pay the price. They raise everyone else's rates too - because they can. The licensing boards, the insurance companies and the courts need to work together to tackle this problem. Boards need to be informed of every claim filed, regardless of outcome. They need to investigate early instead of waiting for multiple incidents to happen. There has to be some accountability on their part , since they have control over whether or not a doctor is legally allowed to practice medicine. It is time for someone to take action before more babies are injured unnecessarily.

Justice, fairness, integrity?

A former defense attorney now working on the "other side" discusses his profession and dispels a few myths along the way....
By Ken Levine, Attorney

Justice, fairness, integrity. These are concepts that we all believe should be the basis of the legal system. Persons injured due to medical negligence should be fairly compensated. Again, a concept that we believe should be the basis of medical malpractice litigation. I regret to tell you that in fact, these ideals are the hope but not the rule. How do I know? Because I spent many years on the "other side" defending medical malpractice cases for several of the largest hospitals in Boston, Massachusetts. Although I now represent people and families in medical malpractice cases, and no longer defend doctors and hospitals, the lessons I learned on the "other side" have stayed with me and shape the manner in which I pursue the cases that I now accept.

First, let us consider the ideas of justice, fairness and integrity. In the eyes of the lawyers defending medical malpractice cases, their job is not to attain these goals. Their job is to win, plain and simple. The lawyers that defend medical malpractice cases are hired by an insurance company to be the attorney for the doctor or hospital that has been sued. In most instances, the policy of medical malpractice insurance that the doctor has paid for gives the insurance company the right to select the doctor or hospital's lawyer, and the right to settle the case whether the doctor or hospital wants to or not. Why do fairness and justice not really matter? Because medical malpractice cases are, to the insurance company, just business: how much money will they have to pay, and how can they avoid paying to make the insurance company's bottom line better.

When a doctor is served with the summons and complaint after he has been sued, the first place they call is their insurance company. The company will immediately appoint a lawyer for the doctor and the lawyer will contact the doctor. The lawyer will tell the doctor to say nothing about the case to anyone. The lawyer wants to make sure that the doctor does not say anything about the case that could be perceived as admitting guilt until the lawyer can establish the first draft of a plan to deny liability and defend the doctor.

In the initial meeting the defense lawyer will probe the doctor for information that can help the case. This could be for example, information to discredit the person bringing the case. Was the person a compliant patient, did they miss an appointment, did they fail to follow any instructions? Even if the missed appointment was meaningless in reality, the defense lawyer is thinking of ways that a simple missed appointment can be used at trial to discredit the person bringing the case. Is this fair? No. Is this just? No. Can it help the doctor win the case and defend himself or herself? Yes.

The defense lawyer does have some advantages early in the case. The doctor being sued should be able to educate the defense lawyer about the medicine. Also, the resources of the insurance company allow the defense lawyer to have access to medical information and literature quickly and easily.

After a period of time, the defense lawyer will search with the insurance company for a medical expert to support the defense. This is easy for the insurance company as generally all local doctors want to help one another. Again, an advantage for the insurance company is that they can find local doctors to be involved in medical malpractice cases. These very same doctors on the other hand tell plaintiff's lawyers that because of their close location to the case, they cannot be involved to help the injured person. They do not want to be labeled as a traitor to their fellow physicians by helping the plaintiff. They are considered heroes in the same local medical community for helping defend doctors.

How are they able to help? Simply by what I call 'massaging ' the medical evidence. Will these doctors outright lie for a colleague? Usually not. What they will do is not tell the complete story, and shade the medical evidence in a light most favorable to the defense. Tell part, but not all of the story. They are challenging the plaintiff's lawyer to catch them. If the plaintiff's lawyer is not properly prepared, and is not as knowledgeable on the medical evidence and literature as the defense, the defense will win. If the plaintiff's lawyer is prepared and catches the defense medical experts in their half-truths, the defense lawyer's usual attitude is - well, you caught me this time, maybe you won't the next time. Is this fair and just? No. Does it mean that the defense will win cases they should not, and that injured people will not be compensated? Yes. Remember that the goal to the defense is to win. To the defense, the means justifies the end.

The defense of brachial plexus case is the perfect example of how evidence can be managed by the defense lawyer. The typical defense for brachial plexus cases is that the doctor actually did you a favor during the delivery by saving the baby's life. The defense lawyers suggest that you are not properly grateful because even though your baby has a brachial plexus injury, he or she is alive. This is nonsense of course, but it is an example of how defense lawyers attempt to tell only part of the story. The defense will completely avoid the real issues in the case. The failure to properly estimate the size of the baby in cases of macrosomia. The failure to identify and manage a shoulder dystocia, and the failure to conduct a c-section when necessary. hand tell plaintiff's lawyers that because of their close location to the case, they cannot be involved to help the injured person. They do not want to be labeled as a traitor to their fellow physicians by helping the plaintiff. They are considered heroes in the same local medical community for helping defend doctors.

What can you do to protect yourself and your family when the time comes to find a lawyer and pursue a medical malpractice case? First, you must find a lawyer that understands that to win, you will have to be involved in a hard fight. The lawyer must be prepared to work hard and must understand the opponent. If the plaintiff's lawyer does not appreciate all that must be done to win, the case will be over before it starts. The lawyer must be someone who attends to the small details. Someone who accepts the challenge of the case and is prepared to take the case to trial if necessary, and is not simply looking for a quick fee from a fast settlement. Medical malpractice cases are won with hard, hard work by lawyers who take the extra time to search the medical literature and study the guidelines of groups such as the American College of Obstetrics and Gynecology. And by lawyers who make the effort to find and consult with highly qualified medical experts and do not settle for the too often used "hired gun" experts that will travel anywhere and say anything for a fee. The medical malpractice defense lawyers share information about the "hired gun" experts and when one of them appears at trial, the defense lawyers are ready to cross-examine them.

If your child has been injured during birth, you will only have one chance to file a lawsuit and seek justice. If the case is lost due to poor preparation, you will not be afforded another opportunity. Your lawyer must appreciate how important the case is to you and do all that can be done ethically to win.

Remember, as your case proceeds to believe in the case and believe in yourself. Find a lawyer that will fight for you, and that will leave no stone unturned for information that will help you win. If you can, find a lawyer that has been on the "other side" and who can always stay one step ahead of the defense. Finally, don't ever lose your faith in justice.

Birth injury malpractice cases can be won. Justice can be achieved. As was said by John Greenleaf Whittier in the late 1800's: "Justice is the hope of all who suffer, and the dread of all who wrong."

The Law Office of Kenneth M. Levine, P.C. is a specialized trial practice firm representing clients in medical malpractice cases. The firm includes a nurse and nurse-attorney to assist with the litigation. Presently, the Law Office of Kenneth M. Levine, P.C. represents or has represented clients in medical malpractice cases in more than twenty five states. Mr. Levine has tried cases at all levels of the trial court, and has argued before the Untied States Court of Appeals and the state Supreme court. Mr. Levine is a graduate of the Boston Latin School, Boston College and the New England School of Law. He is a member of the Boston Inn of Court, Member, the American Trial Lawyers Association and Birth Trauma Litigation Group, The Society of Law, Medicine and Ethics and the Million Dollar Advocates Forum.
Mr. Levine can be reached at: Law Office of Kenneth M. Levine 370 Washington St. Brookline, MA 02445 617-566-2700 Klevine@Klevinelaw.com

This article originally appeared in the Outreach publication (Fall / Winter 1999 - Issue #9) of the United Brachial Plexus Network, Inc. (UBPN) and is reprinted here with permission. Outreach is distributed free of charge to all those on the UBPN mailing list. To add your name to the mailing list please email your address to: nancy@ubpn.org; mail your address to: UBPN 1610 Kent St., Kent, OH 44240; or call toll-free: 1-866-877-7004. The UBPN comprehensive website is found at: www.ubpn.org. Thanks for your help.

Facing the Truth

When our daughter was born with a brachial plexus injury, I must have asked the question a million times, "What happened to my baby?". It didn't seem to matter which doctor I asked, the answer was little more than, "She got stuck. Sometimes it happens". At the time, I didn't understand why no one seemed to want to give a detailed explanation. Now, I know the truth, and it isn't pretty.

It was well over three years after Kylie's birth that I got an honest answer, and I was devastated. I learned that Kylie's injury could have been prevented. When a shoulder dystocia occurs, a safe delivery depends on the doctor or midwife's ability to stay calm and perform the correct maneuvers to free the baby. None of the maneuvers I learned about had been used in Kylie's delivery. It frustrated me that I had to learn the truth from medical textbooks and attorneys rather than the doctor I had put my trust in. I could not understand why our doctor didn't explain Kylie's injury to us. Being a healthcare provider, I wanted to believe our obstetrician had the best interest of our baby in mind during and after her birth. I wanted to believe our doctor did everything possible to ensure a safe delivery. I was stunned to learn that most brachial plexus injuries are preventable with proper recognition and emergency management on the part of the obstetrical team. I didn't want to think that the direction of our lives had been changed by the poor judgement of one doctor.

We decided to have an attorney look into Kylie's birth and we were surprised at what was found. The hospital could not initially locate our records. When they were finally found, it was as if her injury never happened at all. There was no record of any labor or delivery complications and no mention of shoulder dystocia or a brachial plexus injury by the obstetrician or nurses.

As if that wasn't enough, we learned that our doctor had injured other babies before and after our daughter's birth. That was probably the most devastating discovery of all. I had hoped that if there was anything our doctor could have done to prevent Kylie's injury, this would have been used as a learning experience and extra precautions would be taken in future deliveries to avoid injuring other children.

We came in contact with three other families who had children delivered by our doctor with brachial plexus injuries. There could be more families out there that we don't know about. After speaking with some of the other parents about the circumstances surrounding their children's injuries, we felt that something had to be done. I had spoken to a couple of obstetrical experts who told me that four brachial injuries was too many for a competent doctor. A reasonably skilled and prudent practitioner might have one or two at the most during their career. If shoulder dystocia is recognized and managed properly, it is possible that a doctor could go through an entire career with no permanent brachial plexus injuries.

We decided to proceed with a lawsuit because we felt that this was the only way to stop this doctor from injuring more babies. We had tried other avenues before it came to that. We even included this physician in our bpi family conference so that we could create awareness about the impact of this injury - not only on the child, but on the whole family. It didn't seem to matter because children were still being injured by this doctor.

Attending the deposition was one of the hardest things I've ever had to do. It took all the self-control I had to sit still and listen to the doctor lie about the events. Our doctor denied any knowledge of Kylie's injury. We know this isn't true because Mike brought it to everyone's attention when the doctor handed Kylie to the nurse. No comment was made by the doctor, but the nurse acknowledged that her left arm wasn't moving. Our obstetrician left abruptly after delivery and the pediatrician was very vague when explaining her injury. We now believe this was an attempt to minimize the situation so that we would not be alerted that a mistake had been made. By the time we figured it all out, the statute of limitations had run out for Mike and I to file a suit on our behalf. (Statute of limitations for parents is 2 years in Missouri). Fortunately, we could still file suit on Kylie's behalf.

Our doctor must have known at the time that omitting the complications in the medical record would make it difficult for us to prove our case in court. It had been more than 5 years and none of the medical staff (including the doctor) could remember the details of Kylie's delivery. We eventually went through mediation and settled a week before the trial was scheduled to start. We couldn’t take a chance with our daughter's future.

I am sure that all parents of children with bpi have considered litigation at some point in their journey. It is an extremely difficult decision, and everyone has their own reasons for choosing to file a suit or not. There is no right or wrong answer. Each family must weigh the facts and decide what is right for them.

Malpractice lawsuits can be emotionally and financially draining for the family. It can take two to five years to get to court and even if the verdict is in favor of the family, there is a good chance that the doctor's attorney will file an appeal. This can drag out the case for a few more years. It can be difficult to re-live the traumatic details over and over again. The system often seems biased on the side of the physician. For example, sometimes you can't even tell the jury that the doctor has been sued before.

On the other hand, there is a child's future at stake. The majority of parents find that their child's injury requires much more treatment than they first thought. It can become expensive, especially if you have to travel for surgeries and evaluations. Those of us with young children have difficulty imagining all of the ways this injury will affect our children when they are adults. No amount of money can replace what the child has lost, but access to proper treatment can give the child a good chance at a normal life. A settlement or jury award will be structured to provide for a disabled child's medical treatment and travel expenses. It can also be used to provide an education for your child down the road and supplemental income during adulthood. Due to the injury, many bpi sufferers will be limited in the job market as adults.

I have focused this newsletter on legal aspects of bpi because I know many families struggle with this issue. I hope the information I've provided will be helpful if you are considering litigation. You have to prepare yourself well to get through it with minimal trauma. Winning or losing a case in court won't change the fact that your child has been injured, but it may help parents achieve some closure for themselves and justice for their child.