More on the $26.5 million cerebral palsy malpractice case

A dramatic moment in the trial came when the boy’s father, Jose E. Bejarano Sr., a truck driver, led his son in a wheelchair before jurors, Carey said. The father pointed out the boy’s feeding tube and explained how he responds to sound and affection. “The family felt strongly that they wanted [jurors] to meet him,” Carey said.

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Anonymous
For what purpose, to establish the facts to support malpractice or to cloud the issues by appealing to juror emotion? Were expert witnesses not enough?
Anonymous
From the article:
“The family’s lawyers had argued that two residents at the hospital, Julie D. Miner and Alisa B. Goldberg, should have delivered Bejarano by caesarean section on March 13, 1997,…”
Even though studies between the US and Europe at approx 30% and 10% C-sectiona rate) show no difference in CP rates.
A conclusion from a 2005 paper on the CP/malpractice.
“The human emotional aspect plays a significant role in reaching a jury verdict for plaintiffs, regardless of the weakness of a case.”
The science does not typically back up these awards. But lawyers aren’t interested in science, the best evidence, or even the ability to research the subject (as even seen on this website). It’s about a W in their column. That’s why the JD trouped this poor kid in front of the jury. To pull at heartstrings. Science evidence had nothing to do with this verdict.
Anonymous
“Clinical causation” is not science. Oddly enough (not really), clinicians only complain about it when they get stung with their own garbage methodology. For every junk science case like this one are hundreds of junk science PI, WC and toxic tort cases where clinicians serve as profiteers. Undoubtedly, we will see calls for protecting only the providers in med-mal cases while leaving the cash cow of the other venues of litigation cited unchanged.
~Criminallopath~
Anonymous
The science as a whole says that most CP is not caused by malpractice. Most, not all. Since we don’t know how many successful CP lawsuits there are v. CP overall, we don’t know if there are too many or not. And, simply saying “the science” doesn’t back them up is silly because each case is different and there is no “science” that says CP can never be the result of malpractice. At least one doctor thought it was.
The reason the kid was shown to the jury was so that they can assess the effect of the malpractice on his life for damage purposes. If you were run over by a car today and lost a leg, would you not want the jury to see your injury before deciding damages?
How one can say the “science” doesn’t support this verdict when they haven’t seen even one medical record is unknown. Physicians repeatedly claim that the media doesn’t thoroughly or correctly report medical issues, yet seem to be able to distill the correctness of verdicts from weeklong trials based on the reporting of that same media. Amazing.
Anonymous
It’s always nice to see Kevin trot out the “emotion trumped science” card when a physician loses. Or the “plaintiff’s lawyer tricked them” as if the defense lawyers sat mute.
Yet when the physician wins, the jury are intelligent, thoughtful people. If anyone wonders why having doctors judge other doctors is a bad idea, read the comments here everytime a doc loses.
Michael Rack, MD
2 residents (at the time) are being blamed because the attending ran off to Saudi Arabia. I feel sorry for them. The attending is the one who should be held liable.
Anonymous
Those two residents are physicians of high prestige, with credentials and publications a mile long.
Michael Rack, MD
They may have high prestige now, but back then they were just residents earning $35,000-40,000 per year for 80-100 hour work weeks.
Anonymous
I would imagine they filed a cross claim against the attending, and for all we know some of the damages may have been assessed against him, even if he wasn’t present.
Anonymous
How anyone can claim that emotion trumped science without hearing a single witness or seeing a single medical record is bizarre.
Michael Rack, MD
Anon 7:42:
Even if damages were assessed against the attending, it would be pretty hard to collect from him
Sid Schwab
The template for this approach was made when I was in training in San Francisco. In that case, I think there really was negligence involved, and the central physician defendant was, according to my friend who was on the defense team, an idiot. (My friend carried around a pencil he’d bitten nearly in half when that doc answered a question in a particularly egregious and insulting way.) The case involved a child with a head injury, and he was the son of a popular radio personality. The lawyer had the child in the courtroom, and showed a movie, titiled “A day in the life of Kelly Niles.” It led to what was, at the time, the highest verdict ever rendered in a malpractice case, anywhere.
Anonymous
This is neither new nor unique. Day in the Life videos and introducing the victim to the jury have been standard practice for years. If it was any of you on the wrong side of someone’s negligence, you’d want the jury to understand what you’re going through and that’s one of the best ways to do it. In fact, a video showing what you could do before the injury and after is even more effective.
Why do some of you think this is a bad thing?
Anonymous
It would be nice if liability was determined on facts first, without emotion.
Damages can be introduced later.
But then again, the whole process has little to do with determining the truth.
Anonymous
How do you know it wasn’t? Oh yeah, you don’t. It would be nice if your conclusions were based on facts, but that doesn’t seem to stop you. Why the double standard?
Anonymous
Liability should be determined based on scientific fact and evidence BEFORE emotional displays are allowed. makes sense, right? You want to get at the truth, right? You want the jury to make a decision based on facts, right?
We REQUIRE blinding in studies of new drugs and devices. You lawyers acknowlege the value in this, don’t you? Why is the same not the case for determiniations of negligence?
Anonymous
Anon 3:43,
“Can you prove that malpractice was committed in this case, based on your knowledge of the case?”
Those commenters who express doubt regarding the sutiability of the award do so based on the preponderence of evidence on cerebral palsy. You appear to believe that there was must have been malpractice, if there was such an award. Based on the preponderence of cases, there is skepticism that this case is exceptional.
It is highly unlikely that anyone commenting here will have detailed knowledge of the case. Your unrealist demands for such appear to be designed to cripple debate, and to deny the generally poor scientific groud that these cases typically rest upon. There are reasons John Edwards is mocked for channelling babies.
Anonymous
“Liability should be determined based on scientific fact and evidence BEFORE emotional displays are allowed.”
How do you know it wasn’t? Trials are often bifurcated. And I’m sorry it was emotional to see what one of your own did to a kid. It’s still a fact that’s what his life is like.
Anonymous
“You appear to believe that there was must have been malpractice, if there was such an award. Based on the preponderence of cases, there is skepticism that this case is exceptional.”
I don’t know if there was malpractice, but I think that I would have to go with the people who have actually seen the evidence v. anonymous commenters who read a newspaper article. Does that strike you as unreasonable?
And you’re right, the majority of CP cases have nothing to do with malpractice. How are you so sure this isn’t one of the minority?
“Your unrealist demands for such appear to be designed to cripple debate, and to deny the generally poor scientific groud that these cases typically rest upon.”
How can one debate the merits of a case they know nothing about? I’m simply asking how these commenters are so sure that the verdict was incorrect? If the newspaper reported that it was a defense verdict, and I said that was incorrect, wouldn’t you ask me what the basis for my conclusion is?
Anonymous
“How can one debate the merits of a case they know nothing about”
And how can one discuss CP in relation to birth injury when you no nothing about the research done? Reading the conclusion of the 2003 ACOG/AAP policy statement isn’t the same thing guy. The conclusions so far is there MAY be an association in a small minority of cases. There is no test to show an association of CP in a given case. This reminds me of the breast implant fiasco of the early 90′s (which you or one your brethran defended using the Daubert standard on this website) which was later debunked. Of course I didn’t see any attorney’s or plantiff’s giving money back after the fact. In fact Dow-Corning went into bankruptcy essentially because of JUNK SCIENCE. Is this your idea of supporiting truth and the little guy? Again, if you want to advocate a program akin to the vaccine fund for these unfortunate kids until hard evidence is shown, sounds good to me. But to possibly destroy a couple of docs career’s (which is what may happen if the judgement stands and is not covered by insurance), based on scientific evidence that isn’t there(yet)is bullshit.
Anonymous
“The conclusions so far is there MAY be an association in a small minority of cases.”
I’ve never disagreed with this. But the conclusions so far do not rule out the possibility that malpractice can cause brain injury leading to CP.
The difference between you and I is that I don’t automatically assume that the people who have actually seen the evidence, including at least one physician, are wrong. Simply because a physician is the defendant.
As for the breast implant litigation, I’m not surprised the subsequent studies funded by the breast implant makers concluded that. Of course, there were physicians testifying in those cases as well. Based on your review of the evidence in the individual cases, were they wrong?
Anonymous
“I don’t know if there was malpractice, but I think that I would have to go with the people who have actually seen the evidence v. anonymous commenters who read a newspaper article. Does that strike you as unreasonable?”
One would be well advised first consider the scientific expertise of those who have seen the evidence, and made a verdict on it, as opposed to the scientific expertise of the commenters here. Of course, you remain free to decide for yourself which is more valid, but that decision says a great deal about you.
One must answer a basic question: how probable is it that the case is exceptional? The exceptional does not occur very often, and many would be skeptical of the ability of a jury of laymen to recognize it.
Anonymous
“One must answer a basic question: how probable is it that the case is exceptional? The exceptional does not occur very often, and many would be skeptical of the ability of a jury of laymen to recognize it.”
Why? Are they stupid? Is it simply impossible to have such a thing explained to you over the course of several days or a week? Are you unqualified to hear cases outside medicine?
And the plaintiff’s expert – also stupid? Or was he a “whore” while the defense experts were upstanding physicians?
Anonymous
“Is it simply impossible to have such a thing explained to you over the course of several days or a week?”
Certainly it is not impossible, nor are the jurors stupid. However, a courtroom is not a classroom. I would submit that it is not an explanation that is taking place in a trial, but rather an argument about what happened, with conflicting points of view. A level of knowledge to discriminate between those points of view is unlikely to be present in the majority of people asked to serve on a jury.
Education is not taking place. Rather, it is persuasion, or coercion, that is taking place. A trial is not a dispassionate debate on the merits of the case, as you must be aware. Can a layman, presented with a case, and confronted with emotional appeals, choose correctly, based on scientific evidence? I am strongly skeptical that the choice would be based on anything better than the toss of a coin.
Anonymous
Sad that you find your fellow man so unable to consider the evidence and make a finding based on that evidence. Perhaps we’re not all as simple and easily misled as you believe us to be.
If it’s a flip of a coin, I want to see the coin given how often physicians win.

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