In the early 1980’s, being a young lawyer out of law school only seven or eight years, I encountered my first medical malpractice case.
I had a client who had an insurance claim on his house that had burned and his insurer refused to pay, claiming it was arson. I had only met him previously, but this day he appeared in my office with his wife and 3 year old baby, and he explained to me that the child had been diagnosed with cerebral palsy from birth and it has been a difficult delivery, by a doctor in Tennessee, as the child weighed nearly ten pounds at birth.
He described the seizures the baby suffered after birth and she had been taken to Le Bonheur in Memphis for treatment. He had wondered why the doctor had not done a cesarean section and asked me to investigate whether there was a case against the doctor.
I agreed to investigate the case.
Having never done a “birth trauma” case before, but even then with significant litigation experience, I educated myself in the medical aspects of prenatal care, birth and delivery and neonatal neurology by reading the prominent books in the field authored by doctors and went to a seminar in New York City to hear a lecture by a prominent Ob/Gyn on “birth trauma” cases.
I gathered all the relevant medical records from the doctor and the hospital involved (which, by the way, told the doctor I had requested the records and had him come in to the hospital and “review the records for completeness” before giving them to me), and hired the doctor who had given the seminar in New York as to review the records and the statements of my clients. In his opinion, the delivery doctor had failed to abide by the minimum standards of care, in that he had not done a c-section in the presence of obvious delivery indications of stress and oxygen deprivation of the child during birth, due to the large size of the baby and the small pelvic opening of the mother to deliver such a large baby.
Instead, the doctor had elected to deliver the baby by use of a “high forceps” technique, which amounted to using, in effect, a pair of tongs to reach up into the birth canal, latch onto the baby’s head and drag her out. In the process, the doctor fractured the baby’s skull and the oxygen deprivation of the child while trying to be born had caused brain damage and the cerebral palsy. I filed suit in Federal Court against the doctor and the hospital.
The doctor was well known in his county, being the only Ob/gyn there and had delivered most of the babies in the county over the course of many years. The doctor was represented by a very prominent defense law firm in Jackson, Tennessee.
I took the doctor’s deposition and went over all the facts of the prenatal care and the delivery. The deposition took two and a half days. Thereafter, the case progressed as these normally do through the courts.
One surprise was that the doctor’s lawyers hired a neonatal neurologist from LeBonheur as their expert witness to testify that the doctor had done nothing wrong. (I’ll call him Dr. Z.) This doctor happened to be the partner of another neonatal neurologist who had been treating my child client. (Dr. T)
As trial approached, I knew it was of critical importance to see whether my child’s neonatal neurologist at LeBonheur was on our side or not. I had not planned on taking his deposition, because I feared he would be hostile to a medical malpractice suit and would even be another expert for the other side. So, even though he was partners with the doctor’s expert, hired by the defense attorneys, I decided to set an appointment with him at LeBonheur and see what he had to say.
I will never forget that day…
I sat the neurologist’s office and saw his Dr. X, who had been hired to testify against the child, my client, and for the doctor. Ethical rules kept me saying anything to him (I couldn’t speak to him without the doctor’s lawyers being present).
Then Dr. T came bustling down a hall toward me. He was a short, rather rotund man who seemed in a hurry. I stood as he approached. I’m not tall, but he was even shorter than I. He had a file in his hand and stopped abruptly before me and said: “What the hell are you doing here?”
I was taken aback. Words stuck in my throat, for a moment. Then I brought to the forefront of my mind that I had a small child as my client, who was stricken for life with cerebral palsy, and I had to resolve whether Dr. T was for us or against us. I told him: “I’m here to find out why (the child) has cerebral palsy.”
He looked at the thoughtfully. Then he looked at his file. He said: “Well, it’s all right here. Her doctor caused it during the delivery.” I knew that wasn’t enough. I told him: “But your partner there has been hired by the doctor’s attorneys, he’s their expert, and he says it wasn’t the doctor’s fault.”
He said, “Come with me,” and abruptly turned around and headed down the hall, passing his partner’s office and yelling in at him that he need ed to see him and to come to his office. My head was reeling, of the ethics involved in being in the same room with the opposing expert and maybe even having to say something to him. I could see a bar complaint coming and losing my license.
When we all got into Dr. T’s office he looked at Dr. Z. He spoke the child’s name and and Dr. Z said, yes, he had been hired by lawyers representing the delivering doctor. Dr. T said to him: “Have you looked at this closely.” Dr. Z admitted he hadn’t. Dr. T said, “I think you better take another look at it.” Dr. Z left the room. My final question to Dr. T was, “Will you say that (that the delivering doctor was at fault for the little girl’s cerebral palsy) under oath? He said: “Of course. That’s what happened. It’s all very clear.”
I thanked him and left.
Not long after that, the doctor and the hospital settled for all the insurance coverage they had. We bought an annuity for the child which provided income for the next 30 years of her life monthly, along with large cash settlements periodically along the way. I haven’t seen her since, and she is grown now and will never know who I am or what I did.
But I am glad that she had at least some help along the way.