As recently as twenty years ago, large parts of the medical establishment believed that neonatal Group B Streptococcus was rare disease that couldn’t be prevented or treated. Unsurprisingly, the failure to treat Group B Strep remains one of the leading causes of malpractice in labor and delivery.

Group B Strep was, and remains, the leading cause of meningitis and sepsis in newborns, but the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) didn’t even have any documents, much less guidelines, on Group B Strep prevention until 1991. In 1993, the Centers for Disease Control (CDC) found that Group B Strep screening was cost-effective. In 1996, the CDC, ACOG, and AAP finally published their first consensus statement on Group B Strep prevention, leading to formal guidelines in 1997. The GBSA has a timeline of its efforts explaining the considerable effort it took to get us where we are today.

As late as 1998, an editorial in American Family Physician still had to convince obstetricians and pediatricians that GBS was a real problem, and explain to them how to prevent it:

First and foremost, we must not ignore the problem. Neonatal group B streptococcal infection is more prevalent than many of the other conditions we screen for in pregnancy, and the effects can be just as devastating. Based on the importance of group B streptococcal infection, there are two possible principles governing our obligation to inform and to care for patients: One is to adhere to the community standard and the other is to provide care that any reasonable patient would want.

Both of these principles can be addressed by two linked steps. First, each practice or care system can develop and document a standard (or reasonable choice of standards) that is supported by current literature or by authoritative clinical guidelines. The CDC consensus recommendations provide some latitude for this, as noted in this editorial and in the article by Keenan. Second, inform patients, document that the information has been provided and provide the opportunity for questions, additional information and choices, when choices are appropriate.

That was just five years before Christian Arroyo was born. As the Seventh Circuit recounted in the Arroyo v. United States opinion last Thursday:

On May 16, 2003, Solorzano Arroyo went into labor. She went to Northwestern Memorial Hospital and gave birth to her son, Christian Arroyo in the early morning hours of May 17, 2003. Because Christian’s birth was more than a month premature, Solorzano Arroyo had not undergone the battery of diagnostic tests, including a test for Group B Streptococcus (GBS), that women typically undergo in the month prior to delivery. These diagnostic tests are extremely important, as they indicate whether an infant will be at risk of contracting any diseases from his or her mother’s blood during birth and allow health care practitioners to take steps to reduce the risks that such incidents will harm the infant.

When a mother has not had these diagnostic tests, medical professionals protect infants by utilizing a two-pronged approach. First, at the delivery stage, doctors are required to observe the presence or absence of four risk factors. Second, after the baby is born, doctors are required to be vigilant in looking for signs indicating the presence or absence of neonatal sepsis (a bacterial infection of the baby’s bloodstream). If a medical professional finds any indications of infection, then she must immediately administer antibiotics to prevent the spread of infection. Because GBS is fairly benign in adult s, mothers can carry it asymptomatically during pregnancy. Newborns can contract the disease during birth and, unless it is treated immediately, it can cause severe and permanent brain injuries.

Shortly after birth, Christian exhibited several symptoms indicating that exposure to his mother’s blood had infected him with GBS. However, the obstetrician and pediatrician responsible for taking care of Solorzano Arroyo failed to detect the infection and treat Christian with antibiotics. Because of this failure, Christian suffered severe and permanent brain injuries. If the doctors had promptly treated Christian, it is likely that the damage done to Christian’s brain would have been significantly reduced.

(Names of physicians omitted.) Christian developed cerebral palsy and is a spastic quadriplegic, requiring substantial additional medical care.

It wasn’t negligent for the physicians not to test for GBS that early in her pregnancy. Nonetheless, because she wasn’t tested before going into labor, the standard of care demands the physicians presume she has GBS and that the baby has been infected until symptoms show otherwise, and to treat at any sign of infection. The failure to do so was classic medical malpractice; said his lawyer, “At one point or another, he pretty much had almost every sign of the infection; at one point, the baby was not even able to see, which was a really bad sign.” Still, he wasn’t treated. Cutting edge to do so ten years ago, malpractice not to do so today. That’s how the standard of care in medicine advances.

Medical causation was similarly indisputable. As the CDC states, “A pregnant woman who tests positive for group B strep and gets antibiotics during labor has only a 1 in 4,000 chance of delivering a baby with group B strep disease, compared to a 1 in 200 chance if she does not get antibiotics during labor.” And that’s just for the antibiotics during labor; antibiotics immediately after birth lower the odds even further.

Recall how, just five years earlier even many doctors didn’t understand the dangers of Group B strep, how to prevent it, or how to treat it. Solorzano Arroyo didn’t know it could be prevented, either, and none of her treating physicians bothered to tell her that. (Any guesses why not?) It wasn’t until she saw a personal injury lawyer’s television ad mentioning that Group B Strep infections that she suspected the possibility of malpractice. She hired a lawyer and sued.

Because the obstetrician and pediatrician worked at a federally-funded clinic, they were immune under the Federal Tort Claims Act, and the United States government was substituted as a defendant. At a bench trial, a federal judge found the United States liable for $29 million in medical care, economic damages, and pain and suffering.

The United States didn’t challenge the finding of medical negligence, nor the size of the damages — it is very difficult to get a federal appellate court to overturn the purely factual findings of a federal district court — but instead claimed that the lawsuit was filed outside the statute of limitations.

There are good policy reasons for having a statute of limitations that bars claims at some point down the road, but none of those policy reasons applied here: the malpractice occurred in May of 2003 and the lawsuit was filed in December of 2005. All witnesses were still living and of sound mind. The medical records were all available.

Most states recognize the particular circumstances of malpractice injuries to children, and so extend the statute of limitations at least a few years, sometimes until the injured child reaches adulthood. Illinois extends the statute of limitations for children to eight years, or until the child turns 22. That extended statute would have applied if this was a normal medical malpractice lawsuit, but, as noted above, this case was against federal employees, so the stricter Federal Tort Claims Act rule applied, and thus the case was governed by the state’s statute of limitations for general personal injuries, despite the child-specific statute. (Strange, I know; the Federal Tort Claims Act is a strange beast, a handful of sentences that opened up a can of worms inside Pandora’s Box.)

The question, then, was when did the statute of limitations begin to run? Under the Federal Tort Claims Act, a claim accrues when the plaintiff discovers or  a reasonable person in the plaintiff’s position would have discovered, that he has been injured by an act or omission attributable to the government. W

e know that Solorzano Arroyo didn’t “discover” the negligence until, at the earliest, she saw the personal injury ad on television, but the question is when “a reasonable person” in her position would have “discovered” the negligence.

The government argued that, “from an objective standpoint, reasonably diligent persons are aware that infections can be prevented, particularly in hospital settings.” Did the Department of Justice take the time to review the history of GBS prevention and the scope of GBS educational efforts? Did they stop and consider that, if just five years earlier an editorial in a major medical journal was imploring doctors “not ignore the problem,” then maybe, just maybe, your average American might not know that the standard of care demanded Group B Strep be closely considered in all pre-delivery testing and, if found, treated with antibiotics?

Or did they just throw out whatever arguments they could, regardless of merit or justice?

Enter Judge Richard Posner. I, like virtually all law bloggers, have discussed Judge Posner on several occasions. He, rare but not unique among the judiciary, spells out his thinking in an informal, first-person style that generally admits where he has made logical leaps or where he has encountered an ambiguity. I disagree with many of his opinions, but, as I’ve said before, I appreciate that honesty and forthrightness, and I wish it was more common across government.

Posner, like a blogger or a journalist, never misses an opportunity to work his way through the big problems in the law, and this time around it was that mythical “reasonable person” standard that has vexed courts and scholars for centuries. Posner’s concurring analysis isn’t susceptible to easy summary; read the concurring opinion yourself.

Remarkable for our purposes here is Posner’s recognition, despite his Republican appointment and conservative leanings, of the knowledge gap between patients and doctors:

There is no way in which holding the Arroyos, who seem to be typical clients of the Erie Family Health Center, to the level of medical knowledge of the average person in American society could make them as knowledgeable as such a person. That would be almost as unrealistic as ruling that the statute of limitations in a medical malpractice suit begins to run whenever a patient who had been trained as a physician would have discovered that he had been injured as a result of a medical act or omission, though the actual plaintiff had no medical training.

There’s a strange conflict between the first sentence and the second sentence — the former implicitly accepts that the “average person in American society” knows as much as a trained physician, a proposition rejected by the latter — but the second sentence rings true to all lawyers who represent patients.

Yet, as “unrealistic” as it is to hold patients to the “knowledge” of trained professionals at work, courts often hold that or worse as a matter of law. In Dambro v. Meyer, 974 A.2d 121 (Del. 2009), for example, the Delaware Supreme Court held that a patient whose breast cancer went undiagnosed for more than year nonetheless “knew,” or through “the exercise of reasonable diligence” could have known, that she was the victim of malpractice back when the misdiagnosis occurred, and so was required to sue her radiologist within two years of the negligent mammogram reading rather than within two years of learning of the cancer or the possibility of malpractice.

Given how often we malpractice lawyers see unrealistic, implausible, and unfair cases like Dambro, it’s refreshing to see conservative jurists like Posner and Easterbrook (who joined Judge Cudahy’s majority opinion) recognize the reality of medical malpractice and how the “reasonable person” usually doesn’t truly know the nature of their injury, much less that the injury was caused by malpractice. A “reasonable person” relies on trained, licensed medical professionals to provide them with medical information. We can see that in Judge Posner’s application of the discovery rule:

The Arroyos are Hispanic (Mrs. Arroyo does not speak English) and poor (her medical bills were paid for by “Public Aid”). Mr. Arroyo is a manual worker. Neither is college -educated. As persons of limited education living we may assume at or near the poverty line, the Arroyos probably are deferential to medical staff. Told by the staff only that their child’s injuries were the result of the mother’s infection, they could not have been expected to suspect that another cause was that the staff hadn’t administered antibiotics to her, and to conduct research into the risk and prevention of the transmission of a deadly infection from mother to child during childbirth. Suppose that, contrary to the court’s opinion, a person of average medical sophistication would have conducted an investigation that would have enabled suit to be filed before the statute of limitations expired. That should not defeat the Arroyos’ claim.

One final note. Judge Posner, obviously upset by the callous, irrational and unfounded argument made by the Department of Justice, left them a little reminder about the dangers of claiming what a “reasonable person” would do:

When the question in applying the discovery rule in a malpractice case is what knowledge should be ascribed to the plaintiff, the court should either determine the knowledge of the particular plaintiff or make a judgment applicable to the subset of the population that has approximately the same educational background and socioeconomic status as the plaintiff. Granted, this approach would require, though only in cases in which the statute of limitations was pleaded as a defense, that plaintiffs present evidence about their educational background and socioeconomic status, in lieu of a guess by judge or jury, based on no evidence, of the medical sophistication of the average American. See, e.g., Grand Trunk Ry. v. Ives, 144 U.S. 408, 417 (1892); Leon Green, “The Negligence Issue,” 37 Yale L.J. 1029 (1928). But why is that an objection rather than a confession that there is too much guesswork in American law and a clue that the traditional approach can produce absurd results when applied in a technical field—as in this case? For the government in it s brief tells us—without references or other elaboration—that “from an objective standpoint, reasonably diligent persons are aware that infections can be prevented, particularly in hospital settings.” On the contrary, knowledgeable persons, fearful of hospital-based infections—see R. Monina Klevens et al., “Estimating Health Care -Associated Infections and Deaths in U.S. Hospitals, 2002,” 122 Pub. Health Rep. 160 (2007),; Andrew Pollack, “Rising Threat of Infections Unfazed by Antibiotics,” N.Y. Times, Feb. 27, 2010, p. B 1—strive to minimize the amount of time they spend in a hospital be cause they know, unlike the authors of the government’s brief (if they believe what they wrote), that many infections in hospital settings cannot be prevented even with reasonable care. If “diligent” is a synonym for expert, as the government’s brief implies, the government is not a diligent student of hospital infection. How can it demand that the Arroyos have a level of medical expertise that the Department of Justice appears to lack?

Indeed. It’s good to see common sense and fairness prevail. We see it too infrequently in malpractice cases these days.