Edwards and Malpractice
Byline: THE WASHINGTON TIMES
The editorial "The science of malpractice" (July 25) criticizes Sen. John Edwards as using "dubious" science to win malpractice cases for children with cerebral palsy. The Times points out that in addition to deprivation of oxygen as a cause of the brain damage known as cerebral palsy, there are many other known causes. The editorial complains that "[t]he trial lawyer carefully screened potential plaintiffs."
Mr. Edwards did what every competent trial lawyer does in screening malpractice cases before filing suit. It is well known in medical science that persistent and substantial deprivation of oxygen for a substantial time during labor and delivery can, indeed, cause brain damage to the fetus that can result in cerebral palsy. Cord blood testing shows when the fetus's blood supply has become acidotic and deprived of oxygen, a state that, when severe, correlates nicely with brain damage or cerebral palsy.
The competent trial lawyer knows that there are many other known causes of cerebral palsy and must carefully screen the cases to make sure that sustained substantial oxygen deprivation has caused the brain damage, rather than something else. The obstetric profession has devised guidelines to determine whether the cerebral palsy or brain damage was caused by oxygen deprivation or something else.
My first experience with prosecuting a malpractice case for a child with cerebral palsy was in 1976, in Moore v. Washington Hospital Center. It was the first multimillion-dollar obstetric negligence verdict in the nation. Mr. Edwards at that time was a law student in North Carolina.
The 1976 case involved a baby who was in a breech, or feet-first, position. The hospital record indicated that the resident obstetricians pulled down the baby's feet in the labor room. The nurse made the note. The two residents testified in depositions (questioning under oath) that the record was wrong, that they pulled down the feet in the operating room and not in the delivery room. The nurse was nowhere to be found, and for good reason. She was in England training to be a nurse-midwife.
Through a lot of luck, we were able to locate her when she came back to this country, and she testified under oath that she remembered the case very well and that the young resident obstetricians did, indeed, pull the baby's feet down and out in the labor room and that she admonished them for it.
Pulling the baby down before they were prepared to deliver caused the umbilical cord to be compressed for such a long period of time that oxygen-rich blood was unable to be circulated to the brain, causing horrendous brain damage. After the verdict, a hospital administrator noted that the jury's verdict was the best thing that ever happened to help clean up the obstetrics department.
Since that trial, there have been many, many more children born with cerebral palsy. In many instances, the cause of cerebral palsy is totally unrelated to anything that the physicians, nurses and medical personnel did or didn't do. In many cases, the cause is unknown. In other cases, the cause is demonstrated to be improper action or inaction by the medical personnel.
When scientific evidence proves a causal relationship between malpractice and cerebral palsy, the law should and does mandate compensation for the innocent child injured for life by the malpractice. …