ACOG Improves Its Guidelines On Brain Injury At Birth (A Little)

For lawyers who represent birth malpractice victims, few phrases conjure up as much ire and frustration as “the ACOG report,” the shorthand for a 2003 document put out by the American College of Obstetricians and Gynecologists (“ACOG”) called “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis.” Despite its title, the report made no effort to explain how a doctor could determine the cause of a particular child’s cerebral palsy, and it made no effort to explain how the incident of neonatal encephalopathy (i.e., newborn brain damage) could be reduced. (Bob Schuster has a little more on its origins, and MedScape has a summary of it.)


Rather, the sole purpose of the report was to prevent children with cerebral palsy caused by labor and delivery malpractice from obtaining compensation, which it accomplished by giving a cover to insurance company’s efforts to confuse judges and juries into believing that babies could survive hours without adequate oxygen and suffer no consequences. The report established core four “essential” criteria, and five “suggestive” criteria that, ACOG claimed, had to be met before a child’s cerebral palsy could be linked to hypoxia at birth.


Sure, in the “Task Force on Neonatal Encephalopathy and Cerebral Palsy,” ACOG dressed up their preordained conclusions in scientific and medical jargon and gave passing nods to basic principles of honest medical research, but the report was worthless from a medical standpoint. It wasn’t a real compilation of medical information, like a Cochrane Review or UpToDate, and it didn’t give any recommendations on how to diagnose or treat patients.


Instead, the report was used constantly in birth injury litigation by paid experts testifying on behalf of obstetricians and hospitals sued for ignoring the signs and symptoms of fetal distress and failing to treat fetal hypoxia. If you brought a hypoxia birth injury claim anywhere in the United States after 2003, you could be assured that the ACOG report would be front and center in the defense, with the veneer of “scientific” and “medical” proof.


ACOG wasn’t responsible for coming up with most of the “essential” and “suggestive” criteria, but instead cut-and-pasted them from the International Cerebral Palsy Task Force’s 1999 “template for defining a causal relation between acute intrapartum events and cerebral palsy,” available here. You can see a comparison of the ACOG and International guidelines on table 3 of this article.


The International Task Force’s criteria was suspiciously strict to begin with, like with their criteria for blood pH and Apgar scores.  Continue reading

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Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery

“If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989).


The First Judicial District of Pennsylvania, better known as Philadelphia state court, is one of the most efficient high-volume civil justice court systems in the country. Part of this success owes to the “Day Forward” program implemented years ago, which years ago began pooling together all the cases of a given year together for management by a single judge, particularly when it comes to discovery disputes. (Years later, in 2009, the American College of Trial Lawyers began recommending “A single judicial officer should be assigned to each case at the beginning of a lawsuit and should stay with the case through its termination.”)


To avoid an endless hell of discovery-related oral arguments, the “team leader” judges schedule one day each week to batch together all of their discovery motions for that week. By the time 9am rolls around, the bulk of motions end up either abandoned, withdrawn, or entered by agreement, after which the contested motions are heard one after the other. Litigators love to complain about discovery court, because sitting through even 15 minutes of someone else’s oral argument when you’re ready for yours can feel like spending a day in a traffic jam, but I tend to sit back and listen, to see what works and doesn’t work for the lawyers, and to see the judge’s general approach to the discrete issues presented.


Last week, I listened to a dozen or so motions, and virtually all of them involved a party unreasonably objecting to discovery. Continue reading

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The Professor And The Grad Student (A Civil Litigation Story)

Yesterday afternoon’s “Breaking News” alert from The Legal Intelligencer was certainly intriguing:

Suit Sparked by Prof’s Affair With Student Survives

A former University of Pittsburgh professor who engaged in an affair with a research assistant can continue with his defamation case against the assistant over claims she affected his ability to get another teaching job and sent a picture of his penis to his wife and 37 associates.

I can’t say that I’m particularly interested in university gossip, but this headline piqued my interest in the relationship between the civil justice system and university life — see, e.g., my posts on the scandalous efforts by fraternities to avoid lawsuits, on the misguided doctrine of “academic abstention,” and on universities trying to avoid anti-discrimination law — and I’ve represented both plaintiffs and defendants in lawsuits arising from tortious conduct at universities.Thus, after reading the story in the Legal, I had to pull the Western District of Pennsylvania’s Order and the Complaint in Wang v. Lee.


In many ways, a close inspection of the case makes it less interesting than it seems it would be. There are a variety of salacious allegations, and one party’s oddly specific wish to be reborn as a mermaid, but those details are mere gossip in a situation that seems to have had rather severe consequences personally and professionally for all involved. The court’s opinion denying summary judgment — thus allowing the professor’s defamation lawsuit against the grad student to go forward– is rather humdrum from a legal perspective; most of the claims are plainly sound if the facts alleged are proven, like Invasion of Privacy (largely for the picture), Wrongful Use of Civil Proceedings (for filing an allegedly frivolous protection from abuse petition in Washington State), and Defamation (for suggesting in the email that the professor was threatening her). I have my doubts about the viability of a negligence claim in the midst of a romantic disputes, but that’s an issue for another day.


Nonetheless, two issues jumped out at me.  Continue reading

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Asphalt Playgrounds Will Not Save The Next Generation


As Sarah Miller recently lampooned over at The New Yorker, parents today are bombarded with “long-form think pieces about parenting” that purport to show how some new studies have finally, after all these years, proven the correct way to raise a child — and how the rest of us have it all wrong. So much for Dr. Spock’s “Trust yourself. You know more than you think you do.”


The latest addition to that genre is Hanna Rosin’s “The Overprotected Kid” in The Atlantic, which argues that the next generation is on the path to ruin thanks to, of all things, safe playground equipment. Apparently, common sense improvements like replacing the asphalt on playgrounds with grass or rubber can somehow be connected to “depression, narcissism, and a decline in empathy,” as well as “college-age kids taking psychiatric medication,” and even “a fear of growing up,” culminating in the next generation’s “inability to think for themselves.” (What’s next? “Human sacrifice, dogs and cats living together, mass hysteria!”). The primary solution to this societal collapse, we are told, is “a new kind of playground.”


We might as well start our analysis with this “new kind of playground.” The idea of “adventure playgrounds,” which Rosin traces back to Lady Marjory Allen, a British landscape architect from the 1940s (though it’s my understanding she got the idea from C. Th. Sørensen in Denmark), is to “encourage a ‘free and permissive atmosphere’ with as little adult supervision as possible,” which will in turn enable kids to “face what to them seem like ‘really dangerous risks’ and then conquer them alone.” Rosin’s exemplar for a “new kind of playground” is The Land in England (“The Land”), a playground made up of commercial refuse in which children sit on broken chairs, jump on “filthy” mattresses, start trashcan fires, and toss around discarded wooden pallets.


In the most general sense, it’s obvious that children need to learn independence and to be responsible for themselves. And surely it’s good for kids to try their hand at designing and building new structures from the tools and materials available. (If you have young kids and lots of cardboard boxes everywhere thanks to Amazon Prime, check out Makedo.)


Yet, if the key is to have “as little adult supervision as possible,” then “The Land” quite plainly does not fit the bill: “The park is staffed by professionally trained ‘playworkers,’ who keep a close eye on the kids but don’t intervene all that much. … [A] playworker is always nearby, watching for impending accidents.” I’m glad to hear that, but if we take at face value all of the arguments in “The Overprotected Kid” about the terrible harm inflicted upon children by supervision and safe environments, then The Land is worse than your typical playground, because it fails to let kids actually exercise independence (and actually suffer the consequences) and it creates a false sense of security even in truly dangerous situations.


Let’s step back to the core of the supposed problem: what, really, is wrong with safer playgrounds? According to Rosin, playgrounds today are harmful to children’s development because of their absence of needlessly dangerous components like asphalt (something not even found at adventure playgrounds) and exposed openings on climbing structures, a “problem” that stems from — what else? — lawsuits. As Rosin writes: Continue reading

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Bringing Back The Deadly Workplace By Stopping Product Liability Actions


From July 1906 through June 1907, five-hundred twenty-six workers died on the job in just Allegheny County, Pennsylvania. Here’s the “death calendar,” noting the deaths per day for the holiday months of November 1906 and December 1906:

workplace injury death calendar

(This chart and the next come from the CDC’s Improvements in Workplace Safety — United States, 1900–1999.)


A substantial risk of death was simply a fact of any sort of industrial work with heavy machinery in the Gilded Age. In 1913, there were approximately 23,000 industrial deaths, for a rate of 61 deaths per 100,000 workers. To put that in perspective, the current death rates due to all accidents is 38.0 per 100,000, and the rate due to suicides is 12.1 per 100,000. Thus, the risk of dying on the job a century ago was higher than the combined risk of dying in any sort of accident or by suicide today.


Workplace deaths were so common that they even drove art and literature. It’s been largely forgotten in our time, but Christ in Concrete, about an Italian-American community’s struggles during the Roaring Twenties in the face of multiple fatal and catastrophic construction accidents, was published the same year as Grapes of Wrath, to similar praise. The author’s father, a construction worker, was killed on the job on Good Friday in 1923, when the author was 12. In the book, as was common at the time, the nominal presence of workers compensation is of no help, as the construction company blames the workers and the company’s insurer disclaims coverage.


The current rate of occupational fatalities is about 4 per 100,000 — a drop of over 90%. There are of course a wide variety of causes for the decrease, including some totally unrelated to industrial work (like, as the CDC notes, “societywide progress in injury control,” such as “use of safety belts and other safety features in motor vehicles and improvements in medical care for trauma victims”), but one big reason can’t be ignored: money. After decades of efforts by workers’ rights activists, Wisconsin was the first state to pass a first mandatory workers compensation law in 1911, and Mississippi was the last, in 1948. Employers weren’t too interested in safe workplaces until they were on the hook for the workers’ wages if they were hurt.


But employers weren’t the only ones who needed to have an incentive to care about safety. No one is in a better position to make a complex piece of machine safer than the machine’s manufacturer, and the rise of product liability law — particularly ‘strict liability’ — in the 1960s gave injured workers a way to go beyond the modest benefits of workers compensation to obtain recoveries closer to their true damages. (If the workers succeeded in their product liability claims, they would then have to pay back the workers compensation, through a process known as “subrogation.” Keep that in mind, it becomes important in a minute.) Continue reading

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Finding Happiness As A Lawyer

A year ago, CareerBliss reviewed 65,000 employee-generated reviews and concluded that the “least happy job” in the country was “associate attorney.” A couple naysayers jumped in this as proof that the younger generations of lawyers are entitled complainers, but, truth is, if you ask enough lawyers of any age how they feel about their jobs, the description of life in the law begins to sound like Nabokov’s translation of the Russian word toska:


“At its deepest and most painful, it is a sensation of great spiritual anguish, often without any specific cause. At less morbid levels it is a dull ache of the soul, a longing with nothing to long for, a sick pining, a vague restlessness, mental throes, yearning. In particular cases it may be the desire for somebody of something specific, nostalgia, love-sickness. At the lowest level it grades into ennui, boredom.”


The close relationship between misery and the law isn’t anything new. Consider the law review article from fifteen years ago, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 VAND. L. REV. 871, 874 (1999), written by Patrick J. Schiltz, who is now a federal judge. It’s such a good read, and still so relevant, that it seems to vanish from every location it has been posted in the past; the best I could find was this abridged and unformatted version, and this scan of a printout of an online article that Schiltz published a year later, summarizing many of his arguments. Continue reading

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Defeating The Medical Records Paper Copy Scam

Hardly a day goes by without a letter from my office either requesting medical records or paying for them. Some days, I sign more than a dozen. It’s perhaps the most common thread among all my cases: the vast majority of my clients have been physically injured in one way or another, and at a bare minimum, I need the records from their doctors and hospitals to show the diagnoses they have and the treatment they have received.


Every patient has a right to receive their medical records, and by law should be able to obtain those records promptly at no markup, with no padded fees, and no unnecessary charges from the hospital or the records company. But if there’s money to be made, someone will try to make it, and over the past decade a whole cottage industry has developed around the “business” of trying to cheat patients trying to get their medical records. Sometimes health care providers outsource this “business” to third-party companies, and sometimes the hospitals and health systems play the con game themselves.


Federal law is quite clear: a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in an electronic format,” 42 USC § 17935(e)(1), and that health care provider is allowed to bill “only the cost of … [c]opying, including the cost of supplies for and labor of copying,” 45 CFR 164.524(c)(4)(i). This is all part of the the Health Information Technology for Economic and Clinical Health Act (HITECH Act).


Simple, right? If a hospital wanted to do the right thing, then whenever a patient requested records, the hospital would send them a CD in the mail and a modest bill, one that would typically be under $50 and would never exceed $100. But there’s no money to be made in charging “only the cost” of copying electronic records to a CD, so a number of these entities have a policy that, if a patient requests their records, then the hospital bills the maximum it possibly could. Continue reading

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Philly Runners: Runny Nose 5k in Abington, PA on March 23


Let’s go off topic from the law and get local for a second: if you live near the Philadelphia area, and you’re into fitness or running, come out to the 4th Annual Runny Nose 5k Run and 1 Mile Walk on the morning of March 23, 2014, at Lorimer Park in Abington. All proceeds go to fund fitness, sign language, and music programs at a local preschool. [Update: pre-registration is now closed, but walk-ups are welcome. Here's a copy of the registration, or just show up after 7:30am, race starts 8:30am.] The Beasley Firm and this blog are both among the sponsors of the race.


It’s a beautiful cross-country race through a scenic park, designed by a track coach (and recovering lawyer) who regularly races, and professionally timed by Pretzel City Sports. Here’s what someone who ran it last year said:


I’d highly recommend this race as it was small, beautiful, and quite a lot of fun. I didn’t know until I got there this morning that it was a trail race. I’ve only ever done road races up until today, and I was a bit nervous. There were some pretty major hills and dips, but it all evened out. And it was such a beautiful course!


Exactly! I’ve run the course myself (and shockingly, I actually received an award in my age group!). Serious runners say it’s more interesting than most runs. Casual runners say it’s just the right kind of a challenge, and the “I work out sometimes” folks are thrilled to complete it. The event draws enough participants that nobody feels like there’s attention on them specifically, but not so many that the course feels crowded. It starts with a flat stretch that allows the runners to spread out before they hit the cross-country part.


Runners get a shirt (while supplies last, but if you pre-register by March 12th, you can get one for sure) and a goody bag with the sorts of stuff that typically comes in runners’ bags.


I know what you’re thinking: “Philadelphia has been a frozen tundra for months now, how do you know it won’t be zero degrees with a foot of snow on March 23?” Point taken, but says, “The [Pacific North Atlantic teleconnection pattern] PNA looks to go negative around St Patrick’s Day, the 17th, with more consistent periods of milder temperatures to follow and the polar vortex on the retreat. Right now, late March is looking much more tame and hopefully will go out like a lamb.” Sure, it’s John Bolaris, but this is Philly — we’re all about second-chances.


It’s probably closer than you think; here’s Lorimer Park on Google Maps, in Southern Montgomery County, near both Northeast Philadelphia and Lower Bucks County. 30 minutes even from Center City Philadelphia or from Conshohocken. Easy.


On March 23rd at Lorimer Park, registration starts at 7:30 am, the 5K starts promptly at 8:30 am, and the awards and will happen around 9:30 am.


[Edit, March 20. Two pictures from today, unretouched. We cleared the course of all the big branches and the like.]


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The Fraternity Mindset: Why Be Responsible When You Can Dodge Responsibility?

Caitlin Flanagan’s “The Dark Power of Fraternities” at The Atlantic, an exposé of the “endemic, lurid, and sometimes tragic problems” that plague fraternities and how they avoid liability, is a fascinating and essential read. It’s one of the most thorough reports in recent memory of how powerful, wealthy interests insulate themselves from accountability for the harm they cause to individuals.


Before we get to the substance, the manner of Flanagan’s reporting deserves special mention. Rarely do press reports about the civil justice system give it this type of realistic, balanced treatment. Most reports treat the civil justice system as a spectacle that sometimes involves large sums of money, like a television game show, with trial lawyers filing lawsuits at random, corporate defendants who always acted in good faith paying to avoid jackpot justice, and a jury making up an answer based on junk science and sympathy. Surely we can’t take anything from the civil justice system seriously to inform our views on important issues of the day.*


Flanagan, however, appropriately portrays the civil justice system as the way our society determines responsibility for harms. It’s often the best way – sometimes the only way – to discover systemic threats to people’s safety. Civil liability is also typically the primary incentive corporations, associations, and vested interests have to reduce the risk of harm to others.


What Flanagan found when she looked at lawsuits brought by undergraduates for injuries while at school should cause any parent and future college student to think twice about the true meaning of campus safety:  Continue reading

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Why The Transvaginal Mesh Litigation Won’t Become A “Black Hole” Like Asbestos

The transvaginal mesh litigation has for some time been the largest medical mass tort ever, at least as measured by filings in the federal multi-district litigation (MDL), which is currently being handled in the Southern District of West Virginia. There are over 42,000 cases in the MDL — more than the combined total of cases ever filed in the Prempro MDL (9,761), the Yasmin and Yaz MDL (11,423), the Vioxx MDL (10,319), and the DePuy ASR Hip Implant MDL (8,900). (See this chart under “Total Actions.”) Add to that the over 6,000 mesh cases pending in New Jersey state court, and numerous cases filed in other state courts, and there are nearly 50,000 transvaginal mesh claims pending in courts across the country against six different manufacturers.


So what are the courts supposed to do with that many cases?


There’s no shortage of inventive (and often problematic) suggestions for how to resolve mass torts cases, ranging from ‘offensive collateral estoppel’ to ‘statistical sampling of verdicts.’ (Naturally, defense-oriented interests are quite fond of coming up with “solutions” that are merely veiled ways either to drag the litigation on forever or to put insurmountable pre-trial barriers in front of plaintiffs.) But the only tried-and-true method is the one I mentioned a year and a half ago in “How Judges Can Settle Mass Torts Cases:” “defendants and their insurance companies don’t willingly make reasonable settlement offers. The only thing that brings them to the table is the immediate threat of trial. If judges want to resolve these cases, they need to move them along to trial.”


But when you’re talking about 50,000 medical device cases, that’s easier said than done. The federal courts conduct fewer than 3,500 civil trials each year.


So where can we look for guidance? The closest analogy to the transvaginal mesh litigation is the Diet Drugs litigation, which had roughly 20,000 claims filed in the federal MDL and about 12,000 filed in Philadelphia’s Complex Litigation Center, making it about three-fifths the size of the transvaginal mesh litigation. But some of the lessons learned there might not help us here, because that litigation was comparatively less complicated: the litigation was against a single company (Wyeth), and it involved products that the company had at least implicitly admitted were defective by way of withdrawing them from the market. In the transvaginal mesh lawsuits, however, there are four different major defendants — Ethicon, C.R. Bard, Boston Scientific, and American Medical Systems each have thousands of cases filed against them — and, not only do the defendants adamantly maintain that their products are perfectly fine, but many of the products are still on the market. There’s thus a potential, perhaps even a likelihood, for this litigation to grow endlessly as only a handful of claims are resolved each year while hundreds, potentially thousands, of new claims accumulate each year.


That scenario raises the question: is the transvaginal mesh litigation headed towards the same “black hole” in which the over 180,000 cases in the asbestos MDL sat for nearly thirty years? If so, how do we get out?  Continue reading

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