If your baby has suffered brain damage a the hands of a negligent doctor, you have just been thrust into a war zone. So called litigation literature is just one of the many weapons doctors wield to protect themselves when they make mistakes and to torpedo your child’s chances of ever achieving some semblance of justice.

Litigation literature describes any study masquerading as an honest, scientific study but was written to refute plaintiffs’ claims in court. One such example is the requirement that brain damaged babies must prove that something the doctor did actually caused the brain damage – lawyers call this causation. The American College of Obstetrics and Gynecology (ACOG) wrote a paper purporting to be an honest scientific study that claimed that 90 percent of brain damaged babies received those injuries before birth.

A common claim in court is that brain damage is caused by a baby’s inability to get oxygen to its brain during birth. In 1992 however, doctors got tired of losing trials after negligently delivering a baby so they decided to promote some arguments that would protect them.

This particular study manipulated the existing medical literature to create a false sense of four essential criteria without which lack of oxygen during birth could not cause brain damage. The study claimed that birth injury to the brain could not be caused by lack of oxygen unless all four of these criteria were present:

1. Ph of less than 7.0;
2. Apgar scores of 0-3 for five or more minutes;
3. Symptoms like seizures and coma; and,
4. Multi-organ dysfunction following birth.

Of great interest is that neither number two nor four are considered valid today. Criteria number two is Apgar score, a numerical indicator given by nurses of how well the baby is breathing and moving after birth. However, in response to this article, hospitals had nurses assign Apgar scores of four or more. Thus, by artificially inflating the score, doctors and hospitals could avoid liability if a jury bought into the junk science they were propounding.

The truth is that a real scientific study based on hard evidence show the ACOG theory to be absolutely false. In fact at least 80 percent of brain damaged babies studied suffered injury due to lack of oxygen during birth. This evidence was gathered from autopsies and MRI scans which can reliably indicate the degree and timing of brain damage due to hypoxia (lack of oxygen).

We as plaintiffs’ lawyers work hard to overcome litigation literature and discredit the so called experts who propound these junk science theories, but the fight goes on and newly misleading articles continue to be published. A tragic side effect is that these junk science studies are entering the medical literature and are misleading well meaning health care providers.

Not this time. Not in the case of Salvant v. State in which judges ruled that doctors could not use a medical study as evidence because it was misleading and intellectually dishonest.

The article purported to say that 50 percent of all brachial plexus birth injuries happened to newborns who did not experience shoulder dystocia. Shoulder dystocia is a situation during child labor when the baby’s shoulder gets stuck behind the mother’s pubic bone.

However, the data the doctors used in the study was unreliable and unverified and could not support a valid scientific conclusion. Kudos to the court for calling a spade a spade and throwing out this junk science. Justice goes unserved when verdicts are tainted by junk studies masquerading as real science.

If you suffer a torn pubic symphysis during childbirth, odds are that it was the result of medical malpractice or the negligence of the midwife. Odds are even greater if the tear occurred in conjunction with managing a delivery involving shoulder dystocia.

Shoulder dystocia describes a childbirth in which the baby’s shoulder gets stuck behind the mother’s pubic bone. In such medical emergencies, obstetricians and midwives place the mother in different positions in the hope of freeing the baby’s shoulder.

However if the mother is put into these positions incorrectly, too much pressure is placed on the pubic symphysis, and it can tear with a loud pop.

Since the pubic symphysis holds the pelvic girdle together, a tear causes your entire pelvis to become unstable. You will likely experience pain and difficulty moving your legs. You will also most likely not be able to walk because of the pain and instability.

This is a serious injury should be treated as such.

At the wrongful death trial, the plaintiffs argued that Shands was negligent in hiring and supervising O’Quinn. A competent background check would have revealed his history of stealing drugs. In addition, Shands was informed by its employees that O’Quinn was stealing drugs and did not immediately dismiss him. Shands accepted his two weeks’ notice but did not restrict his access to the drugs.

Unfortunately, in that time, O’Quinn murdered Herndon with drugs stolen from Shands. O’Quinn had become infatuated with Herndon and injected her with the deadly drugs when she told him she was engaged to be married.

On appeal, the court ruled that a legal duty did exist because (1) Shands knew or should have know that the unsupervised release of hazardous, controlled drugs was dangerous; (2) a reasonable hospital would recognize that not implementing controls to keep dangerous drugs secure and supervised would expose the public to unreasonable risk of harm; and (3) Mischelle Herndon’s death was a foreseeable result of Shands negligent hiring and supervising of O’Quinn.

Though Shands did not know O’Quinn to have a violent history, the court ruled that his history of stealing drugs was enough to make harm to the public foreseeable to Shands in light of the hospital’s failure to secure its dangerous drugs.

The court explained that a legal duty exists where a general threat of harm to others exists. The threat of harm does not need to be specific to create a legal duty to protect.

“A common law duty is recognized, regardless of intervening criminal conduct, when a person’s actions ‘create “a foreseeable zone of risk” posing a general threat of harm to others.’… Moreover… the essence of the zone of risk is not the foreseeability of the specific injury that occurred, but whether the zone of risk poses a general threat of harm to others.’ See Hewitt v. Avis Rent-a-Car, 912 So.2d 682 (Fla. 1st DCA 2005)”

Art Zimmet is an injury lawyer who will tell you something most lawyers won’t. If you’ve been injured by the negligence of another, you might not need a lawyer. But before you sign any forms, speak with an insurance company or hire a lawyer, get the free books and information available at my Florida medical malpractice lawyer website. Also visit my Florida child injury lawyer blog  for Florida child injury legal resources. Both sites are full of valuable information and you won’t be disappointed.

Heywood is behind HealthDataRights.org, a movement to declare individual rights to have and share health data. He believes the reason hospitals guard medicals records so closely is that they don’t want to be second-guessed by patients and lawyers. And that lack of openness, he argues, is making people sicker. By having access to health data in a timely manner, better health decisions will be made and lives will be saved.

While most everyone agrees that getting doctors to convert paper health records to a digital system makes sense, not many doctors and hospitals have made the transition. The national goal is to make electronic medical records available to everyone by 2013.

The American Recovery and Reinvestment Act, passed early this year, includes $35 billion in incentives for doctors and hospitals to adopt computerized records.

But, only about 10 percent of hospitals and 20 percent of doctors’ offices are fully digitized now, according to Health and Human Services Secretary Kathleen Sebelius. “We have a very long way to go in a very short time,” she added.

Electronic medical records will transform the practice of medicine, Sebelius said October 6th at the Cerner Health Conference in Kansas City. They will improve the way we provide health care and how we pay for it, both essential components of health care reform.

Physicians could pull up lab data, scans, medical allergies, and other key information on the spot, regardless of whether a patient is visiting a regular physician or on an emergency room operating table.

About one in five patients discharged from the hospital wind up hospitalized again within 30 days, often because they lack adequate follow-up care. Computerization will allow doctors to track their patients’ progress more efficiently, Sebelius said.

Most hospitals have no financial incentive to create electronic records, says Ashish Jha of the Harvard School of Public Health. Electronic medical records don’t increase the amount that insurance companies reimburse hospitals for care.

In some ways, inefficient hospitals – which perform duplicate X-rays when the first set can’t be found – can actually make more money, because they charge for each new test, Jha says.

Along with incentives, the Department of Health and Human Services is developing standards for electronic records, so that hospitals and doctors will be able to exchange information. These standards and incentives may finally give hospitals the push they need, experts say.

Did You Know?
The country could eliminate 200,000 drug mistakes and save $1 billion a year if doctors in all hospitals entered their orders on computers, according to a 2005 study in Health Affairs.
Doctors and hospitals that convert to electronic records can receive bonus payments from Medicare and Medicaid beginning in 2011; those not using them by 2015 will face penalties.