Hiding Behind “Systems Failures”

The recent debacle at Cooley Dickenson Hospital in Northampton, which has involved the deaths of at least one mother and two babies, is a perfect example of how the excuse of a “systems failure” can provide legal cover for institutions that cut corners in staffing and other areas. The absence of meaningful responsibility for non-profit organizations in Massachusetts is a significant disincentive to those organizations, and an enormous impediment to those injured through “systems failures.”

The troubles at Cooley Dickinson have been widely chronicled in the Hampshire Gazette, which has done an admirable job of uncovering many of the circumstances surrounding the recent spate of deaths that have occurred in the maternity department of the community hospital.  The most recent article focused on a state investigation that criticized systems failures, including inadequate staffing, among obstetricians and obstetric nurses.  And even the hospital’s chief medical officer, Mark Novotny, was quoted as agreeing that the staffing levels were “less than optimal.”

One of the hidden factors that permits this type of systems failure–a situation that is potentially life-threatening to patients–is the Massachusetts law relating to the limited liability of non-profit organizations, a category that includes most hospitals.  M.G.L. c.231 s.85K limits the malpractice liability of non-profit hospitals to $100,000–an amount which is grossly inadequate to compensate for a serious injury or death.  The practical effect is two-fold: first, unlike hospitals in other states, which are financially responsible for the full amount of damage caused by “systems failures,” Massachusetts health care facilities do not have a direct financial incentive to avoid such dangerous situations.

And the second problem with this system is the patients, who are often collateral damage.  They may face a situation where the individual providers were doing the best they could with a poor or limited resources, or at least where their individual negligence pales in comparison with that of the “system” in which they were working.  In that situation, their ability to receive fair compensation for their injuries may be extremely limited or virtually non-existent.  Unless the patient can identify individuals responsible for the failures in care, the recovery will be limited to $100,000.

In fact, with awareness of the limited institutional responsibility, individual providers have a ready scapegoat: they can hide behind “systems failures” and faceless bureaucrats in order to minimize or avoid their own liability.  Most juries–and perhaps not unreasonably so–will hesitate to blame an overworked doctor or nurse whom jurors might view as a victim of a system that demanded too much of them.

And all this plays out behind the scenes: in most cases, the jury never knows of the institution’s limited liability.  And so if the institution is a party at trial, the jury may hold only the organization liable, never realizing that such a finding will deprive the patient of compensation for a severe injury or death.  Yet if the institution is not named as a party, the individual providers who are defendants can effectively avoid liability by blaming the faceless–and absent–organization where they worked.

Thus far, the hospital lobby has successfully beaten back all attempts to reform this situation in a way that would promote institutional responsibility and meaningful compensation.  One good thing that could come from the Cooley Dickinson disaster would be a change in these antiquated laws.

Attack on Shoulder Dystocia Article Fails

An interesting decision from the First Circuit shot down the attempt of two unsuccessful plaintiffs to mount a collateral attack on the truthfulness of a medical journal article they claim unfairly damaged their malpractice cases.

The plaintiffs in A.G. v. Elsevier, Inc. had suffered adverse jury verdicts in cases involving the alleged mismanagement of shoulder dystocia, resulting in brachial plexus injuries to two children.  Both plaintiffs’ obstetric malpractice claims were tried to juries (in Virginia and Illinois), resulting in verdicts for the defendant doctors.  The plaintiffs then joined forces to file suit in Massachusetts federal district court against the American College of Obstetrics & Gynecology (ACOG) and Elsevier Publishing, as well as the journal article’s co-authors, Massachusetts obstetrician Henry Lerner M.D. and Eva Salamon M.D.—who was also the delivering obstetrician in the reported case.

According to the subsequent federal complaint, prominent among the evidence at each malpractice trial was an article entitled Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia, authored by Lerner and Salamon and published in the journal of the American College of Obstetrics & Gynecology (ACOG).  The defense in each case argued that this was evidence that there were other causes for brachial plexus injuries apart from obstetric negligence.

Unfortunately for Lerner, a vocal advocate for “tort reform,” lecturer on the defense of malpractice cases, and a frequent defense witness, his recitation of the facts—specifically the assumption that there was no shoulder dystocia and no traction used in the delivery—was apparently untrue.  For example, according to the First Circuit opinion, the plaintiffs claimed that Lerner never read the labor and delivery record—which contained some evidence of a shoulder dystocia—before writing the article.  Further, Salamon, the delivering obstetrician, admitted under oath that she applied traction in all deliveries–directly contradicting the article’s title.  This, the plaintiff patients’ lawyer embarked on a campaign to elicit a retraction of the article from the ACOG.  Not surprisingly, those efforts failed—the article having become quite useful in the defense of shoulder dystocia malpractice cases!

Finding that the claim that the alleged falsity of the article caused the adverse jury verdicts failed to reach the “plateau of plausibility under [Ashcroft v.] Iqbal and [Bell Atlantic Co. v.] Twombly,” the First Circuit affirmed the district court’s order dismissing the case.  While noting that, based on the factual allegations in the complaint, the plaintiffs had “more than a gambler’s chance of proving fraud,” the Court noted that there were no facts to support the conclusory statement in the complaint that the allegedly false article was the cause of the defense verdicts.  Thus, under the federal standards, which require a plaintiff to plead specific facts in support of his legal allegations, the complaint was properly dismissed.

The difficulty in proving the effect of this article on any given jury verdict is obvious–without the ability to obtain testimony from the jurors about their thought process, which is prohibited almost everywhere–claims like A.G.’s are bound to fail.  However, this does not mean that plaintiffs should simply accept without question medical articles like Lerner and Salamon’s and others of their ilk.  Plaintiffs’ lawyers need to fight aggressively against articles based on poor science or incomplete or misleading facts.

Read the First Circuit’s opinion in A.G. v. Elsevier, Inc. here.


Shoulder Dystocia and Erbs Palsy Injuries

One common type of obstetric malpractice case involves a delivery complication known as shoulder dystocia, in which one of the baby’s shoulder (usually the front or anterior shoulder) gets stuck behind the mother’s bone.  The common scenario is that the baby’s head delivers and then pulls back toward the mother’s body–the so-called “turtle sign.”  Shoulder dystocia is an obstetric emergency, because the baby is stuck and won’t deliver without special obstetric manuevers, but isn’t getting adequate oxygen because the umbilical cord is compressed by the baby’s body.  If the shoulder  dystocia is not resolved quickly, brain damage or even death can result.

But freeing the trapped shoulder has its own risks.  If the obstetrician pulls too hard on the baby’s head, injury to the brachial plexus nerves in the shoulder may result.  Also known as Erbs Palsy, this damage may heal over time, or, if the nerves are torn or avulsed, it may be permanent.  Depending on the extent and level of the damage, a child with Erbs Palsy may have little or no use of his wrist, arm and/or shoulder.

There are two ways to prevent Erbs Palsy: by delivering the baby by Cesarean section before the shoulder dystocia occurs, or by using obstetric techniques that free the shoulder without traumatizing the brachial plexus nerves.  Either a doctor’s failure to recognize the risk of shoulder dystocia or the failure to use the proper techniques may form the basis of a malpractice claim.

For years, doctors have attempted to defend these cases by claiming that shoulder dystocia is unpreventable and unpredictable.  More recently, obstetricians have created a body of literature to help in their defense, claiming that Erbs palsy injuries aren’t caused by traction, but are due to the forces of the uterus expelling the baby down the birth canal.  Both of these defenses are rebuttable with scientifically based medical literature.

While it’s impossible to “predict” in any given mother whether there will be a shoulder dystocia, there are a number of factors that can dramatically increase the risk, sometimes to the point where a Cesarean section is advisable.  These include pre-labor factors such as the mother’s height and weight, the baby’s estimated weight, maternal diabetes, and a history of prior shoulder dystocias.  There are also risk factors that arise during labor, such as an induction with Pitocin or a delivery that is either prolonged or precipitous (too long or too short).  One company claims to have created an algorithm that will enable doctors to assess the risk accurately so that it can be discussed with their patients.

Some “women’s rights” groups decry the notion of “prophylactic” Cesarean sections, done to prevent shoulder dystocia in high-risk situations.  Their members fill internet bulletin boards and chat rooms with diatribes about the “myth” of the big baby, and of obstetricians who perform unnecessary Cesareans, or “cause” shoulder dystocia by inducing labor.

Yet just like the obstetricians who exclude women from the decision-making process, these supposed patient advocates do expectant mothers a great disservice.  Since there is no way to predict exactly which high-risk mothers will have shoulder dystocia, each woman must make her own choice, after careful discussion with her health care providers.  Some women prefer to attempt a vaginal delivery, while others choose the operative route to avoid the risk of a child with a devastating injury.  And the calculus can change during labor if additional risk factors develop.  What seemed safe enough at the outset may become more dangerous with the passage of time.

It is also regrettable that the medical profession has chosen to devote so much time and money to creating defenses to shoulder dystocia cases, rather than to educating providers and counseling mothers so that they can work together to make the best choice for each individual.  Proper education, risk assessment and decision making would reduce both the number of injured babies and the number of malpractice claims.