John Edwards’ political career is over — and rightly so — but he’s still a punching-bag for the “tort reform” crowd.

He shouldn’t be. Here’s an example.

Stephen Bainbridge leaves his expertise and reveals himself at least a careless speaker, if not an outright fool. After Eric Johnson at PrawfsBlog discusses teaching a Torts class via John Edwards’ Four Trials, Bainbridge criticizes Johnson for failing to note Edwards’ “junk science,” which Bainbridge ‘proves’ by block-quoting two spurious conservative articles, one from the Wall Street Journal and the other from the National Review, both decrying Edwards’ prosecution of birth trauma cases alleging celebral palsy due to medical malpractice.

I’ve represented plaintiffs in birth injury cases alleging obstetrical malpractice caused celebral palsy. They’re not junk science; they’re common sense and good science, accepted and supported by every major medical organization.

I don’t care that “delivery problems [are] not to blame for cerebral palsy in the ‘vast majority’ of cases.” I don’t sue obstetricians just because a child has CP. I sue obstetricians because the medical record and the testimony reveal malpractice resulting in extended hypoxia and acidosis of such a magnitude that it caused moderate or severe neonatal encephalopathy.

And why do I look for that? Because the American College of Obstetricians and Gynecologists (ACOG) Task Force on Neonatal Encephalopathy and Cerebral Palsy says, through its ACOG guidelines, that hypoxia can cause cerebral palsy. In fact, this organization comprised solely of physicians, funded and supported by hospitals and insurance companies, even established criteria for such birth injury:

The criteria to define an acute intrapartum event sufficient to cause cerebral palsy, as modified by this Task Force from the template provided by the International Cerebral Palsy Task Force, are listed as follows:*

Essential criteria (must meet all four)

  1. Evidence of a metabolic acidosis in fetal umbilical cord arterial blood obtained at delivery (pH <7 and base deficit =12 mmol/L)
  2. Early onset of severe or moderate neonatal encephalopathy in infants born at 34 or more weeks of gestation
  3. Cerebral palsy of the spastic quadriplegic or dyskinetic type†
  4. Exclusion of other identifiable etiologies such as trauma, coagulation disorders, infectious conditions, or genetic disorders

The fourth is often the most important in these cases. It doesn’t matter how many hours a fetus spent in distress before being delivered, I can guarantee you the defense lawyer and insurance adjuster will find an smooth-talking local expert with a strong CV to say, in their fair and unbiased opinion, to a reasonable degree of medical certainty, that the baby’s injuries were due to a stroke some undetermined number of days in advance, and thus the child’s problems are definitely not the fault of the doctor or hospital.

It won’t matter that, until smooth-talking Dr. Expert, not a single health care provider noticed or considered this “stroke.” It won’t matter that the opinion is based on pure speculation, and that it contradicts the placental pathology done at the time and the admitting diagnosis / discharge summary of the neonatologist. It’ll come into the trial and will require you fight hard to rebut it, to prove it was hypoxic ischemic encephalopathy.

Sure, I think that’s junk, but I’m a lawyer who gets paid to prove otherwise. So, again, ACOG:

Criteria that collectively suggest an intrapartum timing (within close proximity to labor and delivery, eg, 0-48 hours) but are nonspecific to asphyxial insults

  1. A sentinel (signal) hypoxic event occurring immediately before or during labor
  2. A sudden and sustained fetal bradycardia or the absence of fetal heart rate variability in the presence of persistent, late, or variable decelerations, usually after a hypoxic sentinel event when the pattern was previously normal
  3. Apgar scores of 0-3 beyond 5 minutes
  4. Onset of multisystem involvement within 72 hours of birth
  5. Early imaging study showing evidence of acute nonfocal cerebral abnormality

There you go, my “junk science.” That’s what I’m looking for and that’s often how I prove the causal element of my OB/CP cases.

That is, with ACOG guidelines. Are they junk, too? Is it all junk except for what some political hack writes to criticize a has-been politician?

Read more about our birth injury and cerebral palsy legal services.

Causation in Tort: General Populations vs. Individual Cases:

To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant’s conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently.

Such an assertion bears more than just a furrowed brow: the statistical likelihood of an event happening does not show the likelihood of the event happening?

“More probable than not” is a classical statistical analysis, but Sunstein and Meadow think it’s inappropriate to use statistics showing an event is more probable than not to prove that the event was more probable than not. That’s how we know important facts like  how Topamax causes birth defects and vinyl chloride causes cancer — facts which demonstrate liability.

Why would someone make such a disingenous argument?

Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk.

I see: to make it harder for those hurt by others to obtain justice.

It’s old-hat to speak of the military-industrial complex. But that wasn’t the only concern on Eisenhower’s mind:

The prospect of domination of the nation’s scholars by Federal employment, project allocations, and the power of money is ever present and is gravely to be regarded.

The whole speech is worth a read and frequent re-reads.