Call for a scrivener
If it seems as though it will be difficult to recall all the details of a delivery, consider calling a nurse or staff member into the room for the sole purpose of documentation once shoulder dystocia is diagnosed. Remember, once dystocia occurs, the risk of a poor outcome and years of litigation increases substantially. Having an extra staff member take notes is a small price to pay for documentation that may later establish your defense. The thinnest paper can sometimes extinguish the hottest litigation flame.
Prepare for a considerable lapse of time
Most states allow a claim to be filed on behalf of a child as late as 2 years after the child reaches the age of majority, which is 18 years in most states. Therefore, a child in many states can file suit as late as his or her 20th birthday. It is not uncommon for the events of an obstetrics case to be 10 or 15 years in the past by the time a claim is filed. Over such a long period, memories fade, radiographs and other imaging studies may get lost in storage, and so on. No matter how busy, tired, or hurried you may be from the events of the day, the most important 30 minutes you can spend are those in which you take time to sit, think, carefully draft, and proofread a delivery summary and check it for consistency against other documents generated during delivery. If necessary, call your partner in to cover you for an hour or two while you get the documentation right. If it helps your practice avoid a lawsuit, it is time well spent.
2. Educate your attorney
This point may seem rudimentary, but I have encountered a number of physicians who allowed their anger over being sued to taint their initial contacts with defense counsel.
A physician who sets aside 3 to 4 hours to meet with counsel, educate the attorney about medical issues, and review the medical literature is a cherished ally and is much more likely to be defended successfully. Physicians who treat the lawsuit as though it is an imposition on their personal or professional life and distance themselves from defense counsel do themselves a great disservice.
3. Be fluent in shoulder dystocia
If you are sued, and your case proceeds to trial—or even to depositions—a number of concepts particular to shoulder dystocia are very likely to arise, and you will be expected to address them coherently and to educate the jury and judge about their proper meaning.
Shoulder dystocia is unpredictable
Be conversant with the literature and statistics that show dystocia to be an unpredictable event.1
Fetal weight estimates are imprecise
Know the numbers. It is important to be conversant about projected birth weights and lines of demarcation for macrosomic and LGA fetuses. Plaintiff’s counsel and experts may try to obscure the lines between these definitions and terms. Keep your facts and definitions straight.
Also emphasize that ultrasonographic weight estimates are just that—estimates. There is no way to determine precise fetal weight in utero. Some studies suggest that ultrasonography (US) and physician weight estimation via palpation have similar accuracy rates. Do not allow the plaintiff’s attorney or expert to create the impression that US estimates are infallibly accurate.
Restitution of the head is a natural rotation
Understand the concept of “restitution of the head.” Do not allow plaintiff’s counsel to suggest that you turned the child’s head to one side or the other with your hands. Restitution is a natural rotation, and your hands merely guide and support the child’s head in this process. Gentle guiding of the head is appropriate.
The term “downward” is similarly misused. If ever there was a loaded term, it is “downward traction,” a favorite of plaintiff’s attorneys. Downward, as in “out of the birth canal,” versus downward, as in “90-degree angle to the birth canal and toward the floor,” are descriptions frequently misused in testimony and evidence. Be clear that any use of the term downward does not imply that the child’s neck was bent 45 to 90 degrees, with the top of the head inclined toward the floor. If a vague question regarding downward traction arises during the course of a legal case, ask for clarification of the term.
Degree of traction is another poorly understood concept. I am not aware of any reliable study that conclusively proves that major Erb’s palsy occurs when a greater degree of traction is applied and minor Erb’s palsy with a smaller degree of traction. Some counsel will use the fact that most brachial plexus injuries resolve over time to suggest that permanent Erb’s palsy is caused by overwhelming traction. Be prepared to dispute this argument!