Day on Torts
One of the defenses commonly asserted in an Erb’s Palsy medical malpractice case is the "natural forces of labor defense." The Appellate Division of the Supreme Court of New York recently ruled that a trial judge did not abuse his discretion by ruling that the defense could not be presented to the jury because "defendants failed to rebut plaintiff’s showing that [the] theory was not generally accepted within the relevant medical community" and that the theory "lacked an adequate foundation for its admissibility."
Mark Bower, guest blogger at the New York Personal Injury Law Blog, does an excellent job explaining the injury and the creation of a defense to it:
Erb’s Palsy is a neurological injury that is commonly the subject of birth trauma litigation. For over 100 years, it was generally accepted that Erb’s Palsy happens when a baby’s shoulder gets caught in the mother’s birth canal during delivery. If the delivering doctor pulls on the baby’s head in order to dislodge the stuck shoulder, the nerves running down from baby’s neck to the shoulder and arm (the “brachial plexus”) can be stretched or torn, resulting in a crippled arm. That the newborn has a non-functioning arm is usually recognized at the time of birth, or very shortly thereafter.
This mechanism causing Erb’s Palsy was so well-established, that the medical literature used to refer to it as “Obstetrical Brachial Plexus Palsy.” That is, until the medical community started to push back 20 or so years ago, and the waves of “tort reform” gathered momentum.
A small cadre of obstetricians developed a new theory, that contrary to the conventional wisdom, Erb’s Palsy is not due to the delivering physician pulling on the baby’s head or neck after all. Instead, they theorized, it is due to the “natural forces of labor” somehow stretching the baby’s neck during childbirth, so the fault is Mother Nature’s, not obstetrical malpractice.
This new theory was happily embraced by the obstetrical community, as it deflects the blame for Erb’s palsy injuries away from obstetricians and midwives. The same handful of doctors who invented the theory, published it over and over, each one repeatedly citing the others as sources. And so, around and around it went, building a significant body of literature, but with no actual original research or studies validating the theory, other than its proponents continually reinforcing one another. And the same half dozen or so doctors flew around the country, testifying to this theory in the defense of Erb’s Palsy cases, and depriving injured infants of recovery.
This decision reminds Daubert and various state court decisions that require trial judges to exercise some level of "gatekeeper" function before permitting proposed expert testimony to find its way to the jury is a sword that cuts both ways. Plaintiff’s lawyers need to be on the lookout for and attack junk science offered by defendants, especially in medical negligence and products liability cases.
The New York opinion is Muhammad v. Fitzpatrick, CA 11- 01764 ( N.Y. App. Div. Jan. 31, 2012).
Hat tip to the New York Personal Injury Law Blog.