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Court upholds birth injury verdict after rancorous trial; rejects defense challenges to causation testimony

This week, the Court of Appeals was compelled to review a long, bitter medical malpractice trial that resulted in a huge verdict for a child injured at birth.  The overwhelming share of the verdict was in future economic damages to care for the child--and of course took into account the fact that medical expenses are advancing much faster than the cost of living.  The Defendants argued that the verdict should be overturned because the Defendants alleged that the family's expert witnesses lacked a scientific basis for their opinions.  The Defendants also argued that there were trial errors, including inappropriate conduct by the family's attorney.  Finally, they raised a number of technical objections to the method of calculating damages.

In an extremely thoughtful opinion, the Court of Appeals unanimously rejected the Defendants' appeal arguments.  The case is VanSlembrouck v. Halperin and William Beaumont Hospital.  The Court noted that the trial was long and tested the patience of all involved.  Further, the trial transcript evidenced mis-statements and improper argument and a general lack of civility, by all counsel.  Ultimately, the Court held that while the trial was imperfect, no substantial right of any party was prejudiced and the outcome was not unreasonable given the evidence.

The child, Markell VanSlembrouck, was born with 10-20% of her cerebellum and medulla oblonagata missing.  All experts (there were like 15, total) agreed that this was a congenital defect.  The Defense experts argued that this was the sole cause of the child's profound brain damage and cerebral palsy.  The Plaintiff experts testified that the defense experts were exaggerating the impact of the congenital problem and improperly ignoring the damage caused by an extremely difficult and traumatic birth.  The Plaintiffs argued that if the birth had been managed in accordance with the standard of care, Markell's long-term prognosis would have been dramatically better, despite the congenital finding.

Markell's mother was obese and showed a dramatic weight gain during pregnancy.  The single diabetes test administered was borderline. It was never repeated.  On admission, fetal ultrasound conducted by a resident suggested the child was of normal size, although this turned out to be dramatically in error (the child was 50% larger than predicted).  There was confusion and an alteratin in the ultrasound result recorded in hospital records and a strong suggestion that Markell's ultrasound had been confused with another patient's.

Markell's mother's labor was long and she demonstrated hyperstimulation of the uterus in result of Pitocin administration.  The experts disagreed about whether her fetal heart monitor demonstrated late and variable decelerations, which would strongly suggest interference with the blood supply to the brain.  At birth, Markell was badly bruised from head to torso and limp, blue and unresponsive. Her apgar was a "1", with her only sign of life being a heart beat.  She lacked normal reflexes and developed tremors.  A test of her umbilical arterial blood--the only test that would have documented inadequate blood supply to the brain during labor--was ordered by the defendant doctor and then canceled without explanation.

The Plaintiff's medical experts argued that management of her mother's pregnancy and labor was below the standard of care, and that given her mother's size, warnings of diabetes, the ultrasound, and the prolonged labor--particularly given the non-reassuring fetal heart monitor, Markell should have been delivered by C-section.  They claimed that this would have prevented the catastrophic brain damage that resulted from cephalopelvic disproportion and ischemia.  Defendant's experts argued that the pregnancy and labor were managed in accordance with the standard of care and that Markell's terrible outcome was solely the result of the congenital condition, PCH.

The higher court addressed most of its opinion to the Defendant's challenge of the scientific foundation for Plaintiff's expert's causation opinions.  It noted that while the trial judge mis-spoke in his description of the standard for admissibility of opinions, he ultimately held a three-day hearing devoted solely to the reliability of the expert testimony, and that he properly allowed the experts to testify.  The Court noted that there was sound medical literature support underlying the experts' opinions, that the Defendants' experts conceded many aspects of the family's expert's opinions, and that there was also physical evidence to support the family's experts' testimony.

The Defendants also argued that the standards of the American College of Obstetrics and Gynecology (ACOG) should have been admitted to rebuke the Plaintiff's experts, however, the Court noted that the Defendants were improperly confusing a venous umbilical blood test that was administered, with the ACOG standard's reference to arterial umbilical blood gases (the test that was ordered and then canceled), making the ACOG standards both irrelevant and likely to confuse jurors.

The Defendants argued that the Plaintiff's experts improperly failed to take into account the Defendants' genetic testing of the child, and the subsequent diagnosis of PCH-2(4).  The Court noted that this was actually a mis-statement of the Plaintiff's experts' testimony, as they conceded a degree of congenital injury but testified that birth trauma was a substantial contributor to Markell's catastrophic outcome.  The Court also noted that there was strong evidence to corroborate Markell's family's expert opinions, given Markell's long life expectancy relative to the expectation of a child with severe PCH-2 findings, and the lack of progressive illness that would be expected with severe PCH-2.

The Defendants argued that the family's attorney had denied them a fair trial by arguing that they had conspired to falsify records and to obfuscate the evidence.  The Court chastised both counsel for their uncivil conduct, but also noted that there was evidence in the record which provided support for the family's attorney's argument (for example, the confusion and change in fetal ultrasound prediction and the ordering and cancellation of the umbilical arterial blood test).  Ultimately, the Court concluded that the trial was substantially fair and that neither side's advocacy had denied the other a fair trial.  With respect to the Defendant's technical objections to instructions and rulings, the Court explained that the objections were either unfounded or not raised in a timely manner.

Ultimately, the case will certainly be appealed to the Michigan Supreme Court, where the Defendants will expect to find a favorable audience with a Republican majority that virtually always sides with insurance companies and doctors.  Several Justices in the majority appear to harbor an intense personal dis-like for the family's attorney, and we'd expect that, regardless of the merits, a way will be found to over-turn or at least reduce the jury's verdict.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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