of uncertainty must be resolved in favor
of protecting each child.
ACOG has previously urged its member obstetricians to eliminate the use
of the words “fetal distress” to apply
to information about the fetal patient
based on the electronic fetal monitoring
data.25 But the term “fetal distress” has
been used to indicate that the fetus is in
a precarious condition, which can lead
to brain injury or death if it persists. The
term was meant to alert medical professionals that they should not defer action
until after it is too late.26
The current guidelines also urge member obstetricians to eliminate the use of
the word “hyperstimulation.” Contractions cause labor stresses, and those
contraction-induced stresses can become
“hyper” (excessive in frequency, duration,
or intensity). By focusing on these labor
stresses and the ability (or inability) of the
fetus to respond to them, bad outcomes
for vulnerable children can be avoided.27
Electronic fetal monitoring can reveal
hyperstimulation, a precarious situation
that can cause fetal distress and, ultimately, brain injury if it persists. ACOG
cannot change the reality that this chain
of events occurs by eliminating the words
“hyperstimulation” and “fetal distress”
from patients’ medical records.
Dangerous Disconnect
There is a disconnect between ACOG’s
claim that the civil justice system operates as a free-for-all and the due process
that actually occurs in the courtroom. We
recently represented a child who sustained avoidable perinatal brain injury.
Her parents are physicians, but when
their child su ered an injury because of
medical negligence, they looked to the
courts for redress of her injuries and to
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help ensure that other children don’t suffer the same fate.
Liability cases have improved the
safety of medical care. It will be made
even safer care as more physicians come
to understand that civil justice protects
all of us.
Robert L. Conason is the senior partner
at Gair, Gair, Conason, Steigman,
Mackauf, Bloom and Rubinowitz in
New York City. Steven E. Pegalis is a
partner at Pegalis & Erickson in Lake
Success, New York, and an adjunct
professor at New York Law School.
N
1. See e.g. Bing v. Thunig, 143 N.E.2d 3, 8 (N. Y.
1957). This case is consistent with the
common law of every state.
2. See Am. Bd. Internal Med. Found. et al.,
Medical Professionalism in the New
Millennium: A Physician Charter, 136
Annals Internal Med. 243, 244–45 (2002),
www.annals.org/content/136/3/243.full.
3. The New York State Medical Malpractice
Liability Task Force was cochaired by New
York’s superintendent of insurance, Eric
Dinallo, and commissioner of health,
Richard Daines. N. Y. St. Ins. Dept., Medical
Liability Task Force Members Announced
(Aug. 3, 2007), www.ins.st
ate.ny.us/press/
2007/ p0708301.htm.
4. Med. Socy. St. N. Y. & Am. Cong. Obstetricians & Gynecologists, Submissions to the
New York State Medical Malpractice
Liability Task Force (Oct. 16, 2007 & Dec. 19,
2007) (on file with authors).
5. This premise is consistent with current
publications. See e.g. Richard L. Berkowitz
et al., A Proposed Model for Managing Cases
of Neurologically Impaired Infants, 113
Obstetrics & Gynecology 683 (2009).
6. The term “perinatal brain injury case”
usually refers to a case in which the
plainti alleges that an avoidable brain
injury during labor caused cerebral palsy.
7. See James R. Scott, Expert Witnesses:
Perpetuating a Flawed System, 106
Obstetrics & Gynecology 902 (2005).
8. Am. Cong. Obstetricians & Gynecologists,
The Report of ACOG’s Task Force on
Neonatal Encephalopathy and Cerebral
Palsy Has Been Published, www.acog.
org/from_home/Misc/neonatal
Encephalopathy.cfm (summarizing ACOG’s
report, Neonatal Encephalopathy and
Cerebral Palsy: Defining the Pathogenesis
