Gerald I. Sugarman, MD FAAP FAAFP JD
Medical Malpractice is occurring at an alarming rate in the United States, but very few attorneys have the experience and medical expertise to fully examine a case within which a physician has negligently provided medical care to a patient. The lawyer who is involved in a complex medical malpractice case is bombarded with medical records which describe the treatments and procedures. These records, represent the most important source of information in a medical malpractice case.
It is for this reason that a attorney who has undertaken such a case must fully understand all of the handwritten notes, physician information sheets, discharge summaries, face sheets, discharge dictations, progress notes, consultation reports, laboratory data, and x‑ray results that are contained in a medical file. Without an understanding of the contents of a patient's medical file, the medical malpractice attorney is placed in a difficult situation. Therefore, a successful medical malpractice attorney must have preparation and organization and a thorough understanding of the case.
There are numerous techniques for analyzing a complex medical malpractice or brain damage baby case, but the methods that are. discussed in greater detail in the remaining pages of this article have proven successful.
HOW TO BEGIN
Obtaining all of your client's medical records is the first and perhaps the most important step in beginning to ascertain the merits of a medical malpractice case that involves a baby that has sustained brain damage. This is accomplished by having your client fill out a medical information release form, which in turn can be given to a professional copy service and used as a means by which to acquire ALL of the patient's pertinent medical records. Other techniques, such as having the parent go directly to the Hospital or Doctor's office or requesting the records to be sent to another "treating" doctor may need to be employed. It cannot be emphasized enough, that you need a COMPLETE set of medical records.
Once the medical records are in the possession of the attorney, it is extremely important to organize them in a categorical fashion. The following organization has proven useful in categorizing the material that is usually obtained in a brain damaged baby case, but may be adapted to other types of cases as well. The records should be labeled and categorized in the following order:'
See, Exhibit #2 for a typical chronology.
1. Obstetrical records which include the patient's history and physical, prenatal summaries, office records, progress notes, and discharge summaries.
2. Obstetrical nurses notes, LABOR CURVES AND
ASSESSMENTS, FETAL HEART TONE MONITORING STRIPS AND INTERPRETATION, check lists and computer forms.
3. Admission sheet or sheets for date and time of entry into the hospital or other medical facility.
4. Discharge diagnoses and coding of those diagnoses (sometimes numbers are placed on the discharge records as codes for the specific diagnoses. In this case, reference the coded numbers to an IDS Code Book for accurate understanding of the medical diagnoses).
5. In a brain damaged baby case, analyze the fetal heart tone monitor records and be vigilant for any written notes that have been scribbled thereon.
6. In a brain damaged baby case, analyze the newborn sheet which invariably gives important obstetrical demographics since the communications that are made between obstetrical personnel to pediatricians and neonatologists are usually codified on this form.
7. Handwritten reports of the patient's history and physical that were made by the attending residents, interns or physicians. (these handwritten reports should be scrutinized carefully when compared to typewritten discharge summaries since any discrepancies are fertile ground for proving a physician's lack of credibility).
8. Laboratory data which contains information on blood gases. In a brain damaged baby case, the cord blood gas, the fetal ph or fetal blood gases should be labeled and referred to as blood gas #1, #2, #3, etcetera. MAKE A CHART SUMMARY (DA TEAND TIME GRAPH OR TABLE).
9. X‑ray reports including routine plain radiographs, CA T scans (computer axial topography), MRI ( nuclear magnetic resonant imaging studies should be correlated with other diagnostic studies such as catheterization reports, ultrasound data, amniocentesis results, or other diagnostic data.
REVIEW OF MEDICAL RECORDS
Once the medical malpractice attorney has arranged a client's medical records in a order similar to the one that is described above, the records should be bound and reviewed by someone who is qualified to ascertain the significant events that transpired during the patient's medical care. By having the medical records reviewed fore proceeding with a medical malpractice action, the attorney can gain important insight and knowledge into the medical aspect of his or her case; thus allowing him or her to proceed in a more diligent manner.
If the professional review reveals that all of the attending medical personnel seemingly performed at a satisfactory level of care, then the attorney can either turn down the case or have the records reviewed by another medical professional. For instance, having an Obstetrician review the case for causation may be the wrong move when a Neonatologist or Pediatric Neurologist will reveal the causes) and reveal that this is Neonatal malpractice. This type of organization and review process may seem somewhat tedious and costly, however there is no substitute for the time and money that is spent at this stage in a medical malpractice case.
DISCREPANCIES IN MEDICAL RECORDS
Medical records frequently contain discrepancies with regard to medical diagnoses, test results, and medical procedures that were performed; the obstetrical records that are acquired when reviewing a brain damaged baby case are no exception. The following items should be scrutinized for any discrepancies when reviewing a brain damaged baby case:
I. Make sure that all the orders that were made by the attending physician or other medical personnel conform with what procedures were being contemporaneously performed on the child.
2. Ascertain the date and time of all orders that were made by medical personnel, and determine whether the nurses carried out those orders (remember that "vo" stands for verbal order and may not have been written by the physician).
3. Determine the type and dosage of any medication or fluids that were given to the patient so that an expert can comment on whether the appropriate course of action was taken.
4. If blood was transfused, correlate the date, time and amount of blood that was transfused with the records of hemoglobin, hematocrit, and patient condition (these records are significant since blood transfusion may be inappropriate in a variety of situations. As an example, transfusion of blood products to an infant who is born with significant anemia may contract polycythemia or hyperviscosity syndrome leading to neurological damage).
5. Ensure that a complete septic evaluation wasperformed and that the treatment was adequate.This can be accomplished by making a table that correlates specific signs and symptoms together with the date of each sign and symptom, the differential diagnosis of each, and results of the septic evaluation including spinal tap results.(this data allows a medical expert to determine whether the antibiotics that were prescribed to the patient during the course of his/her medical were appropriate under the circumstances).
After all of the reviews are done and the attorney is confident that a meritorious medical malpractice action does indeed exist, a summary of the case should be drafted. In the summary, all of the pertinent facts that tend to prove negligence on the part of the health care providers should stressed. By writing a synopsis of the medical malpractice case, it will not only make easier for the attorney to compose a demand letter or an opening statement, but it will also serve as preparatory device for depositions, consultations, and the like. It is this type of organizational strategy that separates a good medical malpractice attorney from a satisfactory one.
The summary should then be placed in a booklet along with all of the medical records and professional reviews that have been obtained by the attorney. The expert booklet, like all of the other organizational tools that have been discussed within this article, serves a very important function: it will be sent to various medical experts for review. By providing a well organized and easy to read booklet to a medical expert, the attorney will not only save hundreds of dollars in review costs, but he/she will also garner the respect of the reviewing expert. In fact, a medical expert is invariably more willing to act as an expert witness for the attorney who provides a well organized and comprehensive booklet, than for the lackadaisical attorney who merely provides a pile of medical records for review.
In the case of a brain damaged baby, the expert booklet should be reviewed by a neonatologist, a pediatrician, an obstetrician, a registered nurse, and any other medical specialists such as a geneticist, neuroradiologist, neuropathoiogist, placental expert etc. as required by the case. Each of these experts should be instructed to review the contents of your expert booklet and render a written opinion with regard to whether the medical health care providers fell below the medical standard of care.
As we all know, there is no substitute for experience in the field of medical malpractice litigation before an attorney takes on a case involving medical negligence. However, if the organizational methods and reviews that were cited in this article are followed, an attorney who takes on a case involving medical malpractice is one step closer to performing at the level of expertise that is normally found only with experience.
PERTINENT MEDICAL DATA
Date of Birth Age of Mother
Present Age of Plaintiff Age of Father
I. FACTS REGARDING PREGNANCY AND METHOD OF DELIVERY:
(1) Was the baby delivered vaginally or by way of cesarean section (describe)?
(2) How much weight did the mother gain during her pregnancy?
(4) Gestational Period
(5) What type of antenatal (prenatal) care did the mother undergo (e.g., what type of genetic tests were taken, was amniocenteses performed, were any medications prescribed, etcetera)2
1. The significant events that should be included in this section included things such as whether the baby was large or small, whether the baby was delivered prematurely, whether the baby was delivered by way of cesarean section, whether there was a prolonged rupture of membranes, whether fetal distress or hypoxia is suspected, and whether the mother presented to the hospital with meconium staining. These are all significant events when dealing with a brain damaged baby case and should be carefully scrutinized at the earliest stages of review.
2. If there was little or no prenatal care given to the mother prior to the birth of her child, then ascertain why no such care was given. This is an extremely important point since it will be a defense issue. As such, fully ascertain whether prenatal care was given and what types of care were given. So too, determine whether the mother complied the physician's suggestions regarding prenatal care.
(6) Significant family history and past pregnancies3
(7) Significant problems during pregnancy4 (was pitocin used?)
(8) Test or procedures that were performed during pregnancy and/car labor:
(a) Amniocentesis Date Result
(b) Non‑stress test Date Result
(c) Oxytocin (Pitocin) Contraction Test (OCT)
(d) Ultrasound Date Result
(1) Time at which mother was admitted to Labor & Delivery
(2) Time at which labor began
(3) How long did the first stage of labor last?
(4) How long did the second stage of labor last?
(5) How long did the third stage of labor last?
3. Determine whether the mother has a history of diabetes or any other ailment that might of had an effect on her pregnancy. Also, ascertain whether the mother has had any other pregnancies, and if she has, determine whether any of those pregnancies were complicated by enetic disorders, malpositions, exposure to toxins, or the like.
4. Determine whether there were any significant problems during the mother's pregnancy. Any problem that might have had an effect on the well being of the fetus would be an appropriate area into which a medical malpractice should probe. As such, determine if there was any excessive bleeding, toxemia, rashes, viral illnesses, evidence of poor fetal growth, significant falls, drug reactions, surgery, seizures, etcetera.
5. Document any other types of tests that were performed during labor and/or delivery. Other types of test or procedures include x‑rays, fetal scalp sample, and the like.
(1) Describe any problems or difficulties that were encountered during
(2) Document all conversations that took place between parents, friends,
doctors, nurses, and relatives:
(3) How was the fetus positioned upon delivery Breech or LOA
(4) Method of delivery (look for Forceps, and trauma)
(5) Was there any evidence of fetal distress at the time of delivery? (document all of the evidence, if any)e
(6) How much blood did the mother lose during delivery?
(7) Describe the condition of the mother's placenta upon delivery
6. The answers that are given to the following questions are extremely important since medical malpractice cases involving a brain damaged baby usually hinge upon the medical health care professional's performance during this stage of a woman's pregnancy.
7. Determine whether the delivering physician noticed any difficulties either before or during delivery, and determine whether he/she failed to anticipate shoulder dystocia, macrosmia, malpositions, fetal distress, intrauterine hypoxia, and the like.
8. Carefully review all of the obstetrical nurses notes, fetal heart tone monitoring reports, typewritten history and physicals, discharge sheets, operation records, consultation reports and correlate the pertinent facts contained in those records with the Freidman curve, labor progress reports, cervical dilation reports, medication sheets, vital signs during delivery, laboratory test results, and fetal heart tone tracings.
If there is any evidence of fetal distress during delivery, be sure to document all of the relevant facts with regard thereto. In addition, based on the pertinent evidence, determine how long the fetal distress lasted.
INFORMATION REGARDING THE NEWBORN:
(1) Condition of baby at birth
(2) Condition of baby at one minutes
(3) Condition of baby at five minutes1°
(4) Condition of baby after five minutes in the labor in delivery room but before being transferred to the nursery
(5) Was the baby transferred to the intensive care nursery (ICN OR NICU)?
(a) If so, why was the baby transferred?
(b) If so, when was the baby transferred?
(6) Were any medications given to the baby?
(a) If so, why were medications prescribed?
(b) If so, what types of medications were prescribed?
9. This information is usually ascertained by referring to APGAR SCORE at one minute. However, determine whether or not a complete examination was performed by a nurse, a obstetrician, a pediatrician or a neonatologist at the time of the baby's birth.
10.This information is usually ascertained by referring to APGAR SCORE at five, 10 and 15 minutes.after birth
7) Was the baby oxygenated in the labor & delivery room or during the first hour of life?'
8) Newborn Test Scores:
(a) APGAR Scores One Minute Five Minutes
(b) Other scores at 10, 15 & 20 minutes
(c) Dubowitz Score12
(d) Examinations and notes:'3
11 Determine whether or not the medical health care professionals failed to suction, aspirate, ventilate, or resuscitate the baby. This is an extremely important area of inquiry since 2 child who is deprived of oxygen at birth may suffer from irreversible brain damage.
12. This score measures gestational age and development of a newborn. However, many times the gestational age and development that is evidenced by the Dubowitz score does not correlate with the gestational age and development that the obstetricians and the neonatologists have estimated. These discrepancies should documented and utilized when the medical malpractice attorney deposes pediatricians and/or neonatologists.
13 The newborn nurses notes will not only guide the medical malpractice attorney in determining all of the significant events that transpired during the mother's pregnancy, but they may also reveal areas in which medical personnel performed below the standards of the medical profession. As such, the nurses notes should be reviewed, outlined and arranged in chronological order as a means of ascertaining any discrepancies between the nurses notes and the medical records.
(9) Chronological overview of the baby's first few days of life outside of his/her mother's womb:14
14 The medical malpractice attorney should create a chronological chart that indicates what physical condition the newborn infant is in during the first few day that it experiences outside the protective environment of its mother's womb. The chart should contain information regarding any significant clinical problems and information regarding neurological deficits. The following chart expresses a typical example of how the medical malpractice attorney should organize the information that is ascertained:
Day One: Hypotonia (tone poor), poor sucking reflex, low blood pressure,
hypoglycemia, cyanosis, inattentive, etc.
Day Two. Twitching, seizures, jitteriness, dusky, etc.
Day Three: Respiratory distress, grunting respiration, high pitched cry, etc.
C/ GERALD SUGARMAN. MD JD FAAFP, FAAP
Phone: (800) 627-8731
Fax: (805) 473-3186