United Brachial Plexus Network, Inc.

B.V.,

Yes, we had a midwife and yes, we have a very good videotape of the delivery. I would be more than happy to contribute my tape to the "library" although I can't discuss any more right now because yes, we are in litigation!

Kate

Kate and Lisa,

I think your ideas are great - both about the videotape library and about requiring videos at a birth. You'd think, if the OBs are working as hard as they say they are to deliver babies safely, that they'd be grateful to have a record of what actually happened. I agree, Lisa, what are they afraid of? I would LOVE to have a video tape of both my first and second birth experiences - one vaginal, the other a planned C-section. Because in both cases, no one ever took responsibility for what happened. In the second case, my second son has a broken collarbone and possible underlying nerve damage that is only now being speculated about since he is not recovering full movement like he should after his bone has been healed for well over a month. What did the doctor say when we asked her about it? "I have no idea how a collarbone would get broken in a C-section. I'll have to ask around and find out if any of my colleagues have ever heard of it." Have we ever heard from her? No. Does she have a clue? Well, if many of you have heard of this happening, then obviously she should have to.

I have read with interest the thoughts of so many of you concerning the "alterante cause theories' for the brachial plexus injuries, and the idea od a video library. I though I could, and should give you the perspective of a trial lawyer actively involved in the litigation of brachial plexus cases.

You are all correct to be outraged at the "alternative cause theories". The priciple articles written by Drs. Sandmire, Jennett, Gonik and others are a very actice effort to miselad juries into thinking that something other than excessive traction on the baby's head with a shoulder dystoica is the cause of the brachial plexus injury. These articles do shade the truth and an not medically correct, but the defese does rely on them, and often win with them. I have reviewed all of these articles, and at a recent meeting of the birth trauma litigation group from ATLA we discussed ho to defeat these articles. For example, in one of the most damading articles that suggests there can be a brachial plexus injury without a shoulder dystocia, the author, Dr. Gherman, a well known defender of physicians had to admit that the reason why there are brachial plexus injuries in the absence of "reported" shoulder dystocia, is that shoulder dystocia is undereported.

Recently, in each brachial plexus case where the defense attempts tp put forth the "alternative causation" theory, I have been filing a motion to exclude the theory from court based upon the case of Daubert v. Dow Chemical. I have shown judges that the "theory" and the literature upon which it is based is not reliable nor mainsteam medicine. I have explained to judges that the ob/gyns that write about alternative causation are not basing their opinions on sound medicine and therefore should their "theory" should be excluded from trial.

Concerning the video library. I regret that no judge would allow video of a birth to be shown in the trial of another delivery to be used in the manner that you suggest. The court would not find the video to admissable under the rules of evidence. In order for the video to be admissable, the court would have to find that it is exactly like the delivery that is the subject of the case. Of course, although it may be very similar, it will not be exactly the same, no two deliveries are.

The rules of evidence at trial can be confusing if you do not use them often. What seems like a good, common sense idea, may still not be admissable. I regret that common sense is not all that common at trial.

If anyone is interested in a copy of the Daubert motion, or the literature the defense relies on to put forth the alternative causation theory, I would be pleased to send the documents to you at no cost. The medical literature is hard to read, but if any of you have cases, you should expect to see the defense relying on it to fight you. If anyone has other questions, please fell free to post them, or contact me directly.

Ken Levine
617-566-2700
KLevine@Klevinelaw.com

Ken,

But what if the motion to supress the alternative theory doesn't succeed? What if the defense still gets to put forth one of these papers claiming that injuries to the posterior arm prove that there was a cause other than traction? Wouldn't the child's attorney then be able to enter into evidence any evidence contradicting this theory, including a video of a birth showing significant traction applied to the posterior plexus in a shoulder dystocia birth? They can enter in animations based on actual cases... why not an actual video?

Kate

Kate, I think your heart is really in the right place on this.

But I am glad Ken posted and said what he did. Right after reading this yesterday, I asked my husband (an attorney, though not a litigator) about the concept of a video library showing SD/BPI, and he also said videos of other kids wouldn't be admissable under the rules of evidence.

My layman's understanding is that any evidence about what happened to another child would still not be evidence pertaining to YOUR particular child. It seems similar to the reasons why you can't ordinarily raise the issue in court that your OB may have injured several babies before yours. Unless there is a clear, established pattern of behavior, past injuries are not considered to be relevant to whether or not your baby was injured. Each case has to be weighed on its own merits.

It is so frustrating, but it's the only system we have to work in. It seems the best way to counter these false claims by defense attorneys is to submit scientific articles (and they are out there) showing why excess lateral traction is virtually always the cause of BPI. And, of course, having your own home video to show always helps! It's good that you have one, Kate.

Janet

Kate,

your question is a good one, and based on common sense. As I have explained, the rules of evidence we are subject to in court do not always match common sense. If the motion to keep out the "alternative causation" theory is not granted by the court, we still fight it. We show the jury why the literature the defense relies upon is not accurate, not medically sound and should not be given any weight. We fight very hard on this issue and we do have alot of ammunition. This is why I always suggest that people contact lawyers experienced in brachial plexus case. there is so much literature, and so much to know. The lawyers that are experienced in brachial plexus cases are aware of the counter arguments.

Just becuase the defense may be allowed to put forth a phony causation theory does not meen we have to accept it, and we don't. The defense causation theory can be attacked, and has been defeated in the past.

Concerning evidence at trial, yes we can use diagrams because they are more generic. But even drawings must conform to the exact facts of the case. Actual of another delivery is just not similar enough for a juudge to allow it. The legal analysis is that the probative value must outweigh the risk of prejudice. I know it seems odd that information that may be helpful is not allowed, byu those are the rules.

I hope this answers your question.

Ken Levine
617-566-2700
Klevine@Klevinelaw.com

Kate,

your question is a good one, and based on common sense. As I have explained, the rules of evidence we are subject to in court do not always match common sense. If the motion to keep out the "alternative causation" theory is not granted by the court, we still fight it. We show the jury why the literature the defense relies upon is not accurate, not medically sound and should not be given any weight. We fight very hard on this issue and we do have alot of ammunition. This is why I always suggest that people contact lawyers experienced in brachial plexus case. there is so much literature, and so much to know. The lawyers that are experienced in brachial plexus cases are aware of the counter arguments.

Just becuase the defense may be allowed to put forth a phony causation theory does not meen we have to accept it, and we don't. The defense causation theory can be attacked, and has been defeated in the past.

Concerning evidence at trial, yes we can use diagrams because they are more generic. But even drawings must conform to the exact facts of the case. Actual of another delivery is just not similar enough for a juudge to allow it. The legal analysis is that the probative value must outweigh the risk of prejudice. I know it seems odd that information that may be helpful is not allowed, byu those are the rules.

I hope this answers your question.

Ken Levine
617-566-2700
Klevine@Klevinelaw.com

I wonder, though, why doesn't that apply to the evidence the defense can offer? How can they put in evidence based on other births and conclusions from other births; they are not evidence pertaining to the birth that is being litigated. It seems like a double standard. The video's wouldn't be evidence pertaining to the particular child being discussed, but refuting evidence to the "theories" the defense puts forth. How could arguing those theories are invalid with actual evidence to the contrary not be relevant?

At least one of Sandmire's most recent "scientific article" is based on five case studies from litigation. Perhaps we need to find a doctor willing to write up case studies on a bunch of our birth videos?

http://www.ncbi.nlm.nih.gov/entrez/quer ... s=15099792

The entire purpose of this paper appears to be documenting as "evidence" the horrific stories of five failed SD births so they can be entered into evidence, thus convincing a jury that the baby being discussed had a favorable outcome compared to the possibilities.

Kate

FYI,
I had talked to my attorney about this topic he said that there is an ACOG video that shows a birth involving shoulder dystocia. This video has been allowed in the past in court rooms as a training/instructional aid for the jury. It was not represented as an exact depiction of the given birth case. He thought the video library was an interesting idea that might be allowed under the same thought process - instructional/educational. Most jury members will have no clue about shoulder dystocia, so the judge may allow it from that angle.
Just my 2 cents!
Guest for legal reasons!

perhaps if it was a properly resolved SD, the "probative value" *would* "outweigh the risk of prejudice", but showing a video of another injury would just be too prejudicial. I can see that does make sense, if you look at it that way.

Kate