of an organized and determined e ort
intended to “protect” doctors, have the
net e ect of striking at the heart of the
civil justice system.
In 2007, the New York superintendent of insurance convened a task force
to consider medical liability safety and
cost issues. Various stakeholders invited
to participate included the Medical Society of the State of New York (MSSNY)
and the American Congress of Obstetricians and Gynecologists (ACOG), acting
on behalf of its member obstetricians,
who were reputed to be among the medical specialists “most impacted” by medical negligence lawsuits.3
The MSSNY’s position was that the
civil justice system no longer serves its
fundamental purposes, and traditional
tort “reform” measures are only a temporary fix. The society urged the adoption of ACOG’s proposed no-fault system
for neurologic handicap in children—as
a first step toward a no-fault system for
all medical liability cases.4
During the proceedings, an ACOG
physician noted that while scientifically
valid studies proved that perinatal brain
injury that results in cerebral palsy (CP) is
a “rare” event and not preventable, many
ACOG members had paid large sums of
money defending lawsuits alleging that
their negligence during a patient’s labor
and delivery caused an infant’s CP.5
According to the physician, this proved
that the civil justice system was not working in this subset of serious injury cases—
and it might not be working in others.
Proponents of tort “reform” and no-fault legal immunity often use the perinatal brain injury case as an example of
how serious injury liability cases cannot be resolved on true merit.6 Influential ACOG leaders have written that
the medical liability trial amounts to a
“free-for-all” and that plainti attorneys
and their experts use theater rather than
science to play on juror sympathy.7
But the so-called science that ACOG
relies on to make these arguments is
flawed. It can be summarized as follows:
There are specific “essential” criteria
for determining whether a disabling
brain injury occurred during labor:
lab evidence of severe acidosis at
birth (the pH must be below 7.0, for
example); evidence of specific new-
born neurological symptoms (called
neonatal encephalopathy); evidence
of a specific type of CP; and the
absence of any identifiable alterna-
tive explanation (such as infection).8
Using these criteria as the measuring rod to identify brain injury that
results in CP during labor, ACOG
maintains that such injuries occur
only rarely.
The use of the electronic fetal monitor during labor cannot influence
the outcome or prevent CP. Despite
advances in medicine, CP is not
preventable.9
The current criteria were created by
an ACOG committee chaired by Gary
Hankins in 2003.10 They modify criteria
established by a prior ACOG committee,
also chaired by Hankins, in 1992.11
But expert testimony that Hankins
gave in a 2007 hearing in Florida shows
that even he doesn’t believe that the
criteria are essential to proving that a
child’s cerebral palsy was caused by perinatal injury. In Florida, an obstetrician
can opt out of a liability lawsuit and into
a no-fault system if a child’s brain damage occurred during labor or birth. In
the 2007 case, a defendant obstetrician
was seeking to do just that, and Hankins
testified that the child’s brain injury in
that case occurred during the labor and
delivery process as a consequence of
acute severe birth asphyxia. He swore
that the 2003 criteria were not essential
and that each case must be evaluated on
its own merits.12
In that case, neither the severe acidosis nor the newborn encephalopathy
criteria were met. Other information
supported the conclusion that there
was severe, acute labor-related asphyxia,
and there was no identifiable alternative
explanation for the child’s injury. Hankins, using deductive reasoning, arrived
at a plausibly correct conclusion. He
simply used the scientific method, looking at the facts of the case and analyzing
what fit and what did not, to determine
the most likely cause.13
There are known medical reasons why severe acidosis or newborn
encephalopathy sometimes occur and
sometimes do not occur in cases of acute
severe labor asphyxia.14 Even if other risk
factors are present before labor (such as
infection and growth restriction), that
does not mean the child was not brain-injured during labor. Each case must be
evaluated individually, as Hankins did
in Florida. An individualized evaluation would understand that prior fetal
compromise would make a child more
vulnerable to labor stresses.
No scientific studies or data support the ACOG criteria, but obstetricians favor them because few cases of
disabling brain damage can be found to
be due to potentially avoidable labor- or
birth-related causes if the criteria are
rigidly applied.15
In 1987, ACOG published in its peer-reviewed journal an article in which the
obstetrician author wrote that, because
“most litigation is based upon events
during the delivery process,” he recommended obtaining a sample of fetal blood
only when the fetus was depressed so the
physician could use that information to
help defend a liability case. If the fetus was
not depressed, he recommended against
obtaining a blood sample because it might
be “uncomfortably incriminating.”16
Collecting or not collecting a sample of
fetal blood should be a medical decision
based solely on what is best for the child.
But ACOG’s editors and peer reviewers
impliedly endorsed the article’s recommendations by publishing it.
