Wednesday, September 29, 2004

"Bad Baby" Cases

That sounds a bit strange, right? Maybe it has something to do with a small child who won't behave? Actually, it's lingo that some lawyers use to describe malpractice cases involving birth injuries. Realizing that most professions at times use expressions that are a bit unseemly, I can't get used to that particular example.

There are cases of obstetric malpractice which are truly appalling. But, as everybody knows, not all birth injuries are the fault of the doctor. And there is validity to complaints about lawsuits being filed over alleged birth injuries when causation can't be made more certain than a coin toss. Very few lawyers engage in this type of litigation - on the one hand, fortunately, there aren't that many cases to be litigated in any given state; on the other hand, it is far too costly a gamble for those who can't afford to specialize in this type of litigation. Very few attorneys can risk $100,000.00 or more in up-front costs on a coin toss. And, although doctors may argue otherwise, very few attorneys would want to engage in this type of practice.

The way it works is this: there's a birth case, where the baby has a serious injury that might be a birth injury, or it might be a congenital disorder for which the doctor has no fault. The medical evidence is equivocal - so the defense hires "experts" who testify that it was congenital or was an unavoidable consequence of birth, and the plaintiff hires "experts" who argue that the injury was caused by medical malpractice. The same experts often make a very handsome living from their testimony alone, be it for the malpractice insurance carrier or the plaintiff. The jury is then asked to pick a side by a "preponderance of the evidence" - which is why I referenced the coin toss. Whether one side persuades the jury that the plaintiff only proved a 49% likelihood of malpractice or a 51% likelihood of malpractice may turn more on external factors - such as whether the defendant doctor seemed arrogant when he testified, or whether the plaintiff came across as a greedy opportunist - than on the evidence.

If the lawyer wins one case out of two, the strategy is a big-time moneymaker.

There's another side to this type of litigation. It is this paradigm which is used as the rationale for sweeping "tort reform" measures which are designed not to make the jury's fact-finding more accurate, or to prevent the filing of "frivolous suits", but which are aimed directly at the most seriously injured victims of malpractice. The cry is that "obstetricians and neurologists pay too much for malpractice insurance", with the illogic that this necessarily means that all doctors should thus receive broad protections from liability for their mistakes - no matter how egregious the physician's conduct, and no matter how severe the patient's injury.

I'm all for hearing proposals from physicians on how to make the birth injury situation more fair. (Or, for that matter, the somewhat similar situation for neurosurgeons, who may end up being sued as the result of a horrific maloccurrence - a fancy word for a 'bad outcome' - from a high risk surgery, even in the absence of malpractice.) But when it comes to making the system better, doctors and their lobbyists are almost universally silent. They instead want to arbitrarily limit the damages received by the most seriously injured victims of malpractice, in the most meritorious of cases. That's at least as immoral as going to court on a coin toss over a "bad baby" case.


  1. If you are interested in learning the factual context of John Edwards' birth injury litigation, there's an analysis available on FindLaw.

  2. Perhaps it is a nuance, you seem to like nuanced opinions, but neurologists don't operate. Neurosurgeons operate. If a patient is willing to let someone into the cranial cavity, they must be pretty darn sick. There will always be morbidity and mortality when the patient starts off "pretty darn sick."

    Several states have established birth injury funds to provide care for the injured and babies with birth defects. Who does this cut out? The trial lawyers like John Edwards who "channel" their injured clients.

    Trial lawyers...they neither spin nor sew.

  3. It's not nuance. It's semantics. Or, if you prefer, nitpicking - easier, I suppose, than addressing issues. Just like your terminal attempt to be clever.

    Please do share information about these funds - how babies qualify, whether they are adequately funded, who funds them, their effect on litigation, etc. We're all ears.

  4. Neurosurgeons...they neither spit nor swallow.

  5. How about removing caps on pain and suffering in exchange for a loser-pays system? As a physician, my biggest problem with the current system is I lose no matter what the outcome. If someone makes something up, I still lose time in the office, suffer mental anguish, and my side still has to pay our bills. Many lawsuits are settled before trial because if the risk of losing is 1% for a $1,000,000 verdit, it is cheaper to settle for $100,000 than go to trial. We lose and we are out 5 million, we win and we are are still out all our legal costs and time away from work. Something is terribly wrong there. Make it so if I am in the right and win, I don't still lose.

  6. This was on the first page of a google search under "Florida obstetrical insurance"

    Bottom line: Tort lawyers 30-35%, with these funds, lawyer fees 7%.

  7. Thanks for that link. Why aren't doctors clamoring for similar programs across the nation? I hate to be cynical, but the two most obvious explanations are that they expect these funds to be more expensive than the tort system, or that they don't want to give up their claims of high insurance premiums for OB/GYN's as a "speaking point" when lobbying for caps across the board.

    There's a reason that insurance companies don't lobby harder for "loser pays". Insurance companies can afford to pay, and thus that would increase their exposure when they lose. Plaintiffs, on the other hand, typically don't have the funds to pay, and the defendant is either going to collect pennies on the dollar or force the plaintiff into bankruptcy.