By Kevin F. Dugan and Mark A. Abramson

I. Introduction:

In our experience, avoidable birth injuries make up the largest sub-category of medical negligence litigation. Brain injuries such as cerebral palsy can result from oxygen deprivation during labor and delivery. Needless to say, these are very difficult cases in every way. However, they can also be among the most rewarding when you are successful in getting a family the resources it needs to give the child a chance to thrive. The following are some of the considerations when handling birth injury malpractice cases in New Hampshire.

II. Applicable Legal Principles:

Children suffer devastating injuries when a doctor is negligent during labor and delivery. Brain damage resulting from asphyxia is unfortunately a common problem that can result in conditions ranging from cerebral palsy to learning disabilities that do not manifest themselves until years down the road. Improper attempts at vaginal deliveries when the pelvis is inadequate can also result in shoulder dystocia and permanent brachial plexus injury, known as Erb's Palsy. In New Hampshire it is well-settled that a child who suffers injuries before birth has a cause of action in tort.¹ The fetus need not have been viable at the time it was injured if the child was ultimately born alive.²

In order to prove medical negligence in a birth injury case, it is the plaintiffs' burden to establish, through expert testimony, 1) the standard of reasonable professional practice in the medical care provider's profession; 2) that the medical care provider failed to act in accordance with such standard; and 3) that as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.³

A birth injury produces at least two distinct claims: The child has a cause of action for pain and suffering, loss of enjoyment of life, lost earning capacity, and for the medical expenses he or she will incur after the age of eighteen; and the parents have a cause of action for the medical expenses that will be incurred on the child's behalf until he or she reaches eighteen.⁴

Since the right of recovery for fetal injuries is undisputed, the conflicts arise on collateral issues. Defendants often claim that the child's mother was comparatively at fault for failing to follow her physician's directions or for tobacco or alcohol use while pregnant. It is clear, however, that "a parent's negligence cannot be imputed to the child."⁵ Therefore, comparative fault has no bearing on the child's recovery. It may, however, come into play with respect to the parents' claim for medical expenses.

Another hotly contested issue is the right of parents to maintain a cause of action for negligent infliction of emotional distress for viewing their child born with birth injuries. The case of Corso v. Merrill requires that a parent suffer severe emotional distress caused by the parent's contemporaneous perception of an "accident" which results in injury to the child.⁶ We have had success arguing that, in the context of prenatal injuries, the "accident" which must be perceived is not the negligent conduct of the medical care provider, but the resulting birth.⁷ The mother may also have a claim for her own injuries, such as uterine rupture and associate damage.

III. Screening Cases:

Parents are often unaware that their child's condition is the result of a medical error. They are conditioned to believe that their child suffers from an unavoidable "birth defect." When parents do come in, however, they are often suspicious about something that happened, or didn't happen, during the course of the pregnancy or delivery. While the parents' story can be helpful, the merits of these cases cannot be judged without obtaining the medical records. When a child is born with severe disabilities, the medical records can be voluminous and it can cost thousands of dollars to just obtain copies.

The most important records to obtain are the labor and delivery flow sheets and the electronic fetal monitor strips. The strips show the child's heart rate and the uterine contraction pattern during labor. The child's heart rate is the determinative factor in the management of labor and delivery. Certain changes require that the baby be delivered promptly with instruments (forceps or vacuum) or by C-section. If these changes are ignored, the child can suffer from a lack of oxygen that can cause irreversible brain damage.

Another area of concern in birth injury cases is the use of instruments such as forceps and vacuum extractors. These instruments are often misused and they frequently cause, or exacerbate, the child's injuries. In any event, the use of these instruments should raise a red flag and a consulting obstetrician will tell you whether it was appropriate under the particular circumstances.

Review by an obstetrician and obstetrical nurse is only one part of the screening process. Assuming that the obstetrician finds a violation of the standard of care, you still must consult with multiple pediatric experts to establish causation. In these cases, causation is hotly contested. At what point during the pregnancy, labor, and delivery process did the child suffer the oxygen deprivation and how long did it last?

Another feature unique to birth injury cases is that it is sometimes difficult to determine the extent of the child's injuries until he or she gets older. This is important because there can be cases in which the child's disabilities thankfully turn out to be mild and not sufficiently serious to support the expense of this kind of litigation. Experienced neurologists and rehabilitation professionals can help predict the child's future.

In short, you must be prepared to spend several thousand dollars just to find out whether there is an adequate basis to pursue a claim.

IV. Statute of Limitations Issues:

The injured child has, at least, until his twentieth birthday to bring his claims.⁸ However, if the child's injuries render him mentally incompetent, his claims do not have to be brought until two years after his disability ends.⁹ The potential problem is that the claim for medical expenses belongs to the child's parents until the child turns eighteen.¹⁰ Thus, this significant claim must be brought within three years of the time the parents discover, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.¹¹ There is authority for the proposition that the parents' derivative cause of action for medical expenses should not be barred until the limitations period for the child's claim has run.¹² However, this seems to be the minority position.¹³

The discovery rule can be used to support the parents' cause of action even if it is filed many years after the child's birth. For example, we were able to defeat a motion to dismiss a mother's claim for medical expenses arising from a birth injury that occurred on December 31, 1982 even though suit was not filed until April 28, 1995.¹⁴ Citing our Supreme Court's decision in Conrad v. Hazen, the Superior Court analyzed the situation as follows:

[T]he cause of action arose in 1982, when Amy was born; therefore, the statute of limitations period is six years. The action did not accrue, however, until the point in time when a medical connection was made between the injuries at birth and the learning disabilities and Attention Deficit Disorder she now suffers from. . . . The plaintiffs' cause of action did not accrue until January 3, 1995, when Amy's neurologist first made the connection between her premature delivery and respiratory distress and her learning development.¹⁵

V. Defenses:

Counsel should be aware that a veritable cottage industry of causation defenses are at work in birth injury litigation. Here are some of the common defenses:

• Placental Pathology. The defense may employ a pathologist specializing in placental pathology to testify that there is microscopic evidence of a process or injury which substantially predates labor and delivery, so that earlier delivery would not have avoided the damage. You will need your own placental pathologist to rebut this argument.
• Neuroimaging. The defense may also employ a pediatric neuro- radiologist to review the child's CT and MRI films in the newborn period and testify that certain changes on these studies require a certain amount of time to develop and that early changes suggest and injury occurring days or weeks before delivery. Consequently, you should have your own pediatric neuro- radiologist to rebut this argument.
• Genetics. The defense may argue that the child's injuries result from chromosomal anomalies. Genetic testing may answer this question.
• Inadequate Resuscitation. Be aware that a child born severely asphyxiated requires immediate and aggressive resuscitation. This is usually managed by a neonatal team and not by the obstetrician. If the resuscitation personnel are not defendants, the defendant obstetrician may blame them for the child's injuries. Have your own pediatric experts address this aspect of the case early on.
• Maternal Infection. This is a favorite defense argument in birth injury cases. Defense experts may blame the poor outcome on an unrecognized maternal infection that was present during pregnancy, but which left little or no evidence after the birth. Make sure your experts have ruled out Group B strep and other common infections.
• Laboratory and Clinical Findings. Defense experts may focus on any number of newborn findings to suggest an injury predating labor and delivery, including Apgar scores, timing of the onset of seizures, the number of immature red blood cells, lymphocyte count, fetal cord blood gases, and the extent of multiorgan damage. Counsel should be aware that the medical literature concerning the validity of these factors in timing birth injuries is in a state of flux and Daubert challenges may be appropriate.
• Life Expectancy. Invariably, the defense will employ a pediatric neurologist to testify that the child's life expectancy is greatly reduced due to the extent of the injuries. Counsel must be familiar with studies addressing life expectancy among brain injured children.

VI. Damages:

Proving intangible damages, such as physical pain, emotional suffering, and loss of enjoyment of life, is very difficult in these cases since the child is usually unable to articulate what he or she is experiencing. Expert witnesses, treating medical care providers, and family members can help. In the category of intangible damages, it is important to remember that our Supreme Court has recently ruled that loss of enjoyment of life constitutes an element of damages that is separate and distinct from pain and suffering.¹⁶ Loss of enjoyment of life is a primary damage component in birth injury cases.

Calculating tangible damages in a birth injury case requires the assistance of several experts. While past and present losses are easily determined, future losses are quite complicated. In a birth injury case, the expenses associated with the child's future medical care are usually enormous. Presenting this element of damages to the jury requires a two step process. First, you must retain a medical or rehabilitation expert to draft a life care plan. Then, you must have an expert economist price out the plan and reduce the cost to present value. Similarly, the child's future lost earnings must be calculated by your expert economist and then reduced to present value.

In a series of early cases, the New Hampshire Supreme Court held that a jury could determine the proper discount rate from its common knowledge of interest rates.¹⁷ More recently, however, Judge DiClerico of the Federal District Court wrote an opinion expressing his belief that these cases no longer represent good law. Instead, he held that "an award of future damages must be reduced to present value and, given the complexity of the modern economic environment, . . . the reduction must be based upon specific economic evidence and not merely upon personal knowledge the jury may or may not possess."¹⁸ Judge DiClerico further held that the burden of proof was on the plaintiff to introduce evidence of the proper discount rate.¹⁹

As a practical matter, in a large case like a birth injury case, an expert economist is absolutely necessary. Whatever the legal requirements may be, it is critical to present the jury with a sufficient basis for awarding the huge sums generally associated with a birth injury case.

The defense in birth injury cases often tries to lessen its liability for the child's care by pointing to Medicaid coverage and free special education programs that are mandated by federal law. However, these programs are clearly collateral source benefits that cannot be used to reduce an award of damages.²⁰ The North Carolina Supreme Court addressed this matter succinctly when it said, "as between defendants who tortiously inflict injury and innocent taxpayers who fund programs such as Medicaid, we think it better that the loss fall on the tortfeasor."²¹

Counsel should bear in mind that a tort recovery may disqualify the family from Medicaid and other assistance so care should be taken to structure the recovery in a way which best addresses the family's needs. A Special Needs Trust may be appropriate. It must be set up before any funds are received.

Finally, Medicaid and other liens on the recovery must be considered and addressed.

VII. Trial:

Presenting liability and causation evidence at trial through expert testimony is a matter that is entitled to its own article. Suffice it to say that these cases turn on the credibility of your experts and your ability to discredit your opponent's experts. The medicine involved can be extraordinarily complicated, so preparation is the key.

Computer animation can be an effective demonstrative aid for establishing liability and causation. Animation allows the jury to view the mechanism causing the birth injury in three dimensions and in motion. Such exhibits are highly influential with the jury. One problem is the cost. A decent computer animation will cost tens of thousands of dollars. In large cases like birth injury cases, however, it is definitely money well spent.

A second potential problem is admissibility. No New Hampshire Supreme Court case has yet addressed this issue. In the leading case of Hinkle v. City of Clarksburg²², however, the court upheld the introduction of computer animation illustrating a plane crash. The Fourth Circuit emphasized that the trial judge has broad discretion to admit or exclude such evidence. Nevertheless, it encouraged judges to examine such evidence outside the presence of the jury to assess its foundation, relevance, and potential for undue prejudice.²³

With respect to proving damages, a day-in-the-life videotape is essential to establish the level of care that the child needs, as well as to support your intangible damages claims. When done by an experienced, professional videographer, these films can become the centerpiece of your case.

VIII. Conclusion:

Birth injury cases are demanding in every sense. They are expensive, emotional, time-consuming, and complicated. They also carry with them a tremendous responsibility, since this is the one chance that the family will have to provide their child with all of the care that he or she will need. Needless to say, these case should not be entered into lightly. However, with a firm commitment, and much hard work, they can be uncommonly rewarding.

Endnotes

1. See Bennett v. Hymers, 101 N.H. 483 (1958); Bonte v. Bonte, 136 N.H. 286 (1992).
2. See Bennett, 101 N.H. at 486.
3. See RSA 507?E:2, I.
4. See Blue Cross/Blue Shield v. St. Cyr, 123 N.H. 137, 141 (1983).
5. In re Estate of Fontaine, 128 N.H. 695, 700 (1986).
6. 119 N.H. 647, 653-54 (1979).
7. See Hilber v. Horsley, No. 93-C-790, slip op. at 2-3 (Hillsborough South, May 2, 1995).
8. See R.S.A. 508:8.
9. See id.
10. See Blue Cross/Blue Shield v. St. Cyr, 123 N.H. 137, 141 (1983).
11. See R.S.A. 508:4,I.
12. See Korth v. American Family Insurance Company, 340 N.W.2d 494 (Wis. 1983).
13. See Elgin v. Bartlett, 994 P.2d 411, 417 (Colo. 1999).
14. See Salisbury v. Gaimari, No. 95-C-367 (Hillsborough South, February 8, 1996).
15. Id., slip op. at 2-3.
16. See Bennett v. Lembo, No. 97-087 (N.H. October 5, 2000).
17. See Roussin v. Blood, 90 N.H. 391, 393-94 (1939); Hanson v. Blake, 92 N.H. 396, 399-400 (1943); Adams v. Severance, 93 N.H. 289, 298 (1945).
18. Hutton v. Essex Group, Inc., 885 F.Supp. 331, 334 (D.N.H. 1994).
19. See id.
20. See Cates v. Wilson, 361 S.E.2d 734 (N.C. 1987); Nelson v. Trinity Medical Center, 419 N.W.2d 886 (N.D. 1988).
21. Cates, 361 S.E.2d at 739.
22. 81 F.3d 416 (4th Cir. 1996).
23. See id., 81 F.3d at 425.