 By Tracy Lischer Medical malpractice cases are hard fought and expensive. Each state has its own pre-filing requirements, from certification by a board-certified physician that the case has merit to pre-screening by a team of physicians. The obstacles set before patients are greater than those set before plaintiffs harmed by any other profession. Most states have rigorous means to protect the health care industry from frivolous lawsuits. Statutes of limitation may also be restrictive. For example, in Louisiana a case is time-barred after 1 year, even for minors. In that state the patient can recover no more than $500,000 from all defendants. Caps on damages are common in many states. In New Jersey there is no cap, per se, on the damages the patient may recover, but only $1 million in physician insurance is required. Plus, New Jersey hospitals have charitable immunity from paying any amount over$250,000. And there is a cap on attorney’s fees: 33 ½ % on the first $500,000 recovery, 30% on the next $500,000 and so on. After $2 million the attorney’s fees are in the court’s discretion. All this has a chilling effect on medical malpractice suits. In fact, an attorney can make a more predictable living doing almost any other hourly work. Nevertheless, plaintiff’s medical malpractice lawyers learn each state’s rules and play by them. As lawyers must become experts in their states’ procedural/damage laws and regulations, they must also master the substantive medical issues of the cases in which they specialize. One specific kind of case has had a resurgence, due in large part to the early discharge of mothers and babies from hospitals. These are cases arising from a preventable neurological disorder that affects only newborn babies. The disorder is called kernicterus and it occurs when jaundice (yellow staining of the skin from the breakdown of red blood cells, something we see every time we get a bruise) becomes severe and is not treated in a timely manner. The primary feature of kernicterus is hearing loss and cerebral palsy. Most babies have some jaundice, which is caused by a chemical in the blood called bilirubin. The level of the bilirubin can be measured prior to infant and mother discharge. It’s an easy test to administer, requiring the taking of just a drop of blood from the baby’s heel. If the level is too high — as it may be in a premature baby, one not nursing well, one who was bruised in the birth canal or has other risk factors — the baby will need close watching and phototherapy. Phototherapy is harmless. Severe jaundice is a red flag for doctors and nurses. When that red flag is ignored, liability arises. Any baby discharged without bilirubin testing may be at risk for severe jaundice (called hyperbilirubinemia by doctors). In the past, some infants who were born normal lost their hearing and their muscle tone because there was no simple way to reverse their rising bilirubin. Once phototherapy was invented and bilirubin could be lowered easily, by simply placing the baby under lights, doctors and nurses rushed to use it. They knew to keep the bilirubin level well under 20 mg/dl (milligrams per deciliter), even lower for premature or sick babies. A 20 mg/dl or higher bilirubin count can cause brain damage in even a full-term infant. Bilirubin doesn’t pass through the blood-brain barrier into every part of a newborn’s brain, but it can pass into the parts that govern four functions: motor (causing athetotic, or floppy, cerebral palsy), hearing (causing auditory neuropathy or sersorineural hearing loss), tooth development (causing dental enamel defects) and vision (causing visual disturbances including loss of upgaze). Simple measures can lower elevated bilirubin levels—start the lights on time and do a blood exchange (or transfusion) if necessary. What can lawyers do? First be aware that the forms of cerebral palsy and hearing loss (auditory neuropathy) caused by severe jaundice can be easily avoided with current medical technology and by complying with the existing standard of care in every state. Because kernicterus is preventable under the standard of care, its occurrence gives rise to legal liability in every state. Personal injury and medical malpractice attorneys are used to looking for birth injuries — loss of oxygen, delayed Cesarean sections, botched forceps deliveries — as causes of cerebral palsy in their clients. They are not, however, used to reviewing the medical record for jaundice, bilirubin measurements, duration and intensity of phototherapy, timely blood exchanges if phototherapy fails and other signs indicating that the child’s disabilities should have and could have been prevented with an inexpensive blood test and intervention. As attorney advocates for the patient, lawyers must also be aware that many physicians may not diagnose kernicterus, which is a clinical diagnosis that can be confirmed by MRI testing. Pediatricians may be unwilling to say the “K word” because one of their colleagues may be at fault. While attorneys know their state laws, they must also learn the medicine terms, rules, procedures and conditions along with the extensive medical literature or refer or associate with an attorney who does. There is also a whole medical vocabulary to learn—hyperbilirubinemia, choreoathetosis, and albumin (to which molecules of bilirubin bind so they can be excreted by the baby) for starters. Attorneys need to familiarize themselves with the 1994 and 2004 American Academy of Pediatrics Practice Parameters for treating jaundice in the healthy term newborn and how to extrapolate from them for treating premature or sick infants, JCAHO’s (Joint Commission for the Accreditation of Healthcare Organizations) 2001 Sentinel Event Alert on hyperbilirubinemia, and other literature on jaundice. Then they need to call the experts in, get the case reviewed and argue against defenses based on the placental pathology or an alleged undetected prenatal infection, an inherited disorder or an unrecognized trauma in utero, intermittent compression of the umbilical cord or some other alternative cause of cerebral palsy (other than bilirubin toxicity). We’re seeing more cases every day. A disorder that was controlled by exchange transfusion in the 1950s, eradicated in the 1970s after the advent of phototherapy, and began recurring under managed care now threatens newborns in every hospital and every state. Some excellent doctors are doing all they can to prevent it and diagnose it when it hasn’t been prevented. But everyone needs to do more. When settling cases, plaintiff advocates must insist upon remedial measures in the defendant hospitals and physician practices as consideration for confidentiality. In this way, kernicterus can once again be relegated to an unfortunate medical history rather than continue to be part of our medical malpractice law practice. About the author: Tracy K. Lischer is a partner at Pulley, Watson, King & Lischer in Durham, N.C. She concentrates in cases of birth injury, untreated jaundice, injury from delayed cancer diagnosis, wrongful death, surgical mistakes, and other injuries caused by improper medical care. Page: 1 of 1 pages for this article
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