Inside Birth Injury Medical Malpractice

Speaker 1:

After an accident, minutes matter. Your words and actions matter even more. You need help and you need it now. This is David vs.Goliath, brought to you by Dolman Law Group, accident injury lawyers, a boutique firm with a reputation for going head-to-head with the insurance company giants and putting people over profits.

Matt Dolman:

Welcome to another episode of the David vs. Goliath Podcast. I'm here with my business partner, Stan Gipe, and esteemed trial lawyer Kyle Newman from New York City. Hails out of the Bronx. You're originally from Long Island, right?

Kyle Newman:

Originally from Long Island. Actually originally born in Brooklyn, but yeah, spent most of my growing up on the South Shore in Merrick and then on the North Shore in Cold Spring Harbor.

Matt Dolman:

Okay, I remember you saying Cold Spring Harbor. Wally Szczerbiak, the star basketball player out there. So today we're going to discuss birth injury law. Most of Kyle's practice, I mean, he does a lot of the whole gamut of personal injury, so third party and first party personal injury work. But a big portion of your practice I'd say is medical malpractice.

Kyle Newman:

Correct.

Matt Dolman:

And it's, again, I know I said this in a prior podcast, is rare for a gentleman or woman your age to have tried so many cases before the age of 40. And especially in med mal, you don't really ever see that. So we're going to get a little bit more granular today. We're going to discuss birth injury law and really where do physicians and I would say medical providers that includes hospitals, radiology centers, where do they deviate and grossly deviate from the normal standard of practice where you see birth injuries that are a result of medical malpractice?

Kyle Newman:

Sure. First of all, thanks for having me.

Matt Dolman:

Of course.

Kyle Newman:

At least in New York City, the vast majority of the cases that we see come from city hospitals where, yeah, I would definitely say the vast majority because what I think is that a lot of these hospitals are extremely crowded, understaffed. And one of the main things that we see, especially in birth injury cases, is a failure to monitor during labor and delivery, and failure to monitor for fetal distress, fetal abnormalities, all types of funky stuff that we'll find where the fetal heart tracings are either missing or there were really bad things that were shown for a long period of time where really no one was paying attention to it. I think unfortunately that can happen in some more overcrowded, larger hospitals that are serving really a poor, more working class community.

My office has been in the Bronx for the past 15 years, so we see a lot of the city hospitals up there, North Central Bronx, Lincoln Hospital as well as the hospitals in Queens and Brooklyn. But that's definitely a common thing that you'll see even in the non-traditional non-city hospitals where really the crux of the case is a failure to monitor the fetus for fetal distress.

And for any parents out there that may be listening to this, may have any interest in potential birth injuries, one of the most important things when a parent is going through labor and delivery is the monitoring of both the mom for her contractions and the fetus for the fetal heart rate, which is that band that they put around the mom's waist during labor. And still these days, even though there's electronic medical records, this is really one of the big issues that I have these days with electronic medical records, in particular birth injury cases in New York, is that the only part of the record that is not electronic is the fetal heart tracing, which is actually getting printed out in the bedroom next to the patient. That's that little strip of paper that's being printed out while a mom is going through labor.

So what often happens, and I just had a case with a major hospital in New York, which was only a few years old, where the hospital just lost the fetal heart tracing, could not find it. They produced it was something like five minutes of tracing for it was like a four plus hour labor where there were... No, no, it's still going. We actually had a, yeah, so we actually moved because-

Matt Dolman:

Did that case go to trial?

Kyle Newman:

what the Hell?

Matt Dolman:

That'll be a negative inference though.

Kyle Newman:

Sure. So when a critical piece of evidence is missing, you can make a motion to have the jury and the judge basically presume that that piece of evidence, because it's missing, is negative or adverse to the other side.

So in this case, you have probably the most important piece of evidence and the most objective piece of evidence in the case, which is the fetal heart tracing, that is inexplicably missing. There's nothing in the chart that says continuous monitoring should have been discontinued, which would be ridiculous because the standard of care when you go into active labor and you're brought to the hospital and you're put in the labor and delivery ward is to have a continuous fetal monitoring. Why? Because that fetal heart rate is so important to monitor because trained doctors, trained nursing staff are able to look at it and tell whether or not the baby is being deprived of oxygen during the course of labor and delivery, which can happen for a multitude of reasons. It could have the cord wrapped around the neck. There could be placental insufficiency. There could be positioning issues. It could just be from the contractions of the mother, a million different things.

But the bottom line is the longer that you deprive a healthy fetus of oxygen, the more likely you're going to have a baby who's born with potentially permanent brain damage.

Matt Dolman:

And that's hypoxia.

Kyle Newman:

Hypoxia, right. So fetal-

Matt Dolman:

Explain what that is.

Kyle Newman:

Sure. So we breathe in air, oxygen, and it goes into our lungs and circulates through our body. And when that oxygen is cut off, so in the womb, babies aren't breathing like we are. They get their oxygen and nutrients through the placenta. And when that is cut off or intermittently contracted or pressed down upon, whether by contractions or otherwise, it can cut off oxygen and blood flow with healthy nutrients and oxygen to the baby's brain. And the fetus actually is one of the most responsive, when a baby is a fetus, a fetus can actually withstand more trauma than an ordinary person can because of the whole tumultuous way that we're born. We're pushed through a canal. We're squeezed through there. There's contractions that are going on which can intermittently compress the blood flow and the oxygen to the baby, which is normal.

komalacia which is [inaudible: 00:07:09

Matt Dolman:

Say that five times.

Kyle Newman:

hich parents might [inaudible: 00:07:35

Matt Dolman:

They do that, what, one and five minutes after the baby's born.

Kyle Newman:

Right. So the-

Matt Dolman:

I just had a baby this past week, so I saw that in real time.

Kyle Newman:

So interestingly enough, so the Apgar score does not come from a doctor. It actually comes from a nurse, Nurse Apgar, which is a totally subjective test where basically after the baby is born, typically a nurse will assess the baby at one minute, five minute and nine minutes or 10 minutes to assess for things like tone, color, breathing, things like that. And they basically add it up to, it can be anywhere from one to nine. So the lower down on the Apgar scale, the more unresponsive or the more potential that baby has for a hypoxic injury. I've had cases where a baby was born with perfect nine Apgars and there still was a brain injury that we were able to prove. So it's not the end all, be all. When it comes to brain injury cases, the other real important things that we look at always are the blood gases.

So there's arterial and venous blood gases that are typically taken after a baby is born. And those can show, based on different levels of the pH, which measures the base acid balance in their blood, which can also give clues as far as whether there was a hypoxic event, how long it was, whether it occurred early on in the labor, later on in the labor and all these things. These are of course topics that we learn as medical malpractice attorneys. But these are things that we rely on our experts to tell us once they review the medical records.

And that, back to your original point, is one of the challenges with these cases is getting the complete medical record in a timely fashion so that we can then have it fully reviewed by an experienced expert who's typically an obstetrician, there might be pediatrics, neurology, to review it to see whether or not there were any departures from the standard of care, which is really the standard that you're looking for in all of these cases. Whether the doctor or the hospital nursing staff departed from the accepted standard in these cases would be obstetrical care.

Stan Gipe:

Okay. Kyle, let me ask you if to back up and almost dumb it down for layman a little bit. We've used a lot of medical terms, things like that. If someone's sitting there, you've just delivered a baby, okay, what is it this mother and father should be watching for to give them an indication that something may have gone wrong, something they need to look a little deeper into. What are the red flag signs a parent should be looking for?

Kyle Newman:

So that's a great question, Stan. So if you've ever had a child before, I would say the first thing is whether your child, your newborn, is reacting and acting in a similar way to your previous births. Whether they're able to latch, suck and drink breast milk, how their GI movements are happening in the first days of life. Ultimately, when they open their eyes, whether there's any eye rolling or esotropia or abnormal eye movements is kind of usually a clue early on.

Matt Dolman:

What's esotropia?

Kyle Newman:

Esotropia which is outward and inward eye rolling. So that can be a sign of neurological injury. And what else? Also the baby's tone. So one of the things that they're measuring in the Apgar score is a tone. So if a baby is born essentially floppy where there's no muscle tone, the baby isn't able to kind of tense or anything like that, that can be also a sign of neurological injury because those parts of the brain that are affected by these cases where there's a hypoxic insult, it also affects the baby's muscle tone, which is controlled by the autonomic nervous system.

Stan Gipe:

All right. So is it more just, as a parent, they're looking to see, is there something different in the way this baby's behaving than my prior babies? Or even something that you feel as a parent seems a little off, your baby's not as active, like you say, the eyes, just something that seems off should cause you to look a little deeper?

Kyle Newman:

You got to look at the baby's breathing, whether they're able to put on weight. Stan, one of the big challenges that I've found, okay, and where most parents really first recognize that there might be something wrong with their child is when the baby fails to meet their developmental milestones. That's really the key in so many of these cases where especially, if you're a new parent, you have no idea what you're looking at. You're terrified, you're trying to keep a human alive. And babies, essentially, whether or not they are injured at birth may act and behave the same way. I mean, they have their eyes closed. They're basically eating, sleeping, pooping. And that might not be one of the things that are disrupted in that baby's life because of a birth injury.

So one of the biggest things, if you suspect anything was wrong during the labor, for instance, if the nursing staff was acting strange. Or the doctor, or it was a prolonged labor where you had to have supplemental oxygen or have to be put on your side multiple times, or your labor plan was different than what you had discussed with your obstetrician. Initially, one of the big things to look for is developmental delays. And that can be inability to roll over, to stand up, also issues with muscle tone, eye issues, breathing issues, feeding issues, really the things that kind of normal babies in their same age group would be doing.

And unfortunately, those things aren't really that noticeable until maybe three, six months into life. So to your point, Stan, in New York, we have a notice of claim requirement for city hospitals, which this is one of the most unfair things of all in all medical malpractice for poor or disadvantaged moms who have to deliver in public hospitals and medical facilities is because, let's say that there was an injury at birth, but it's not able to be recognized by the mom until maybe nine months of age. And there's only a three month notice of claim statute, meaning that if you are going to sue a city hospital, you have to file essentially a two page document, which is a notice of claim within 90 days from when that injury occurred.

So if you aren't even able to tell whether or not your baby might have a birth-related injury and you can't even tell until the ninth, 10th, 11th month of life, you're already at a huge disadvantage because then you've already blown the statute that you would have no clue even existed. And this is what happens a lot of times with city hospitals in this very instance. And I've actually brought a case where no one would've known because the baby didn't meet developmental milestones around a year old. And we actually had to fight the case all the way up to the appellate division to file a late notice of claim in the case and made some cool new case law on that case. But that's one of the main things is the developmental delays. If you're worried about it, just keep a close eye on the baby.

Matt Dolman:

Is that notice of claim, does that have to be pled with specificity? And the reason why I ask is it's almost like, and this is obviously we're talking totally off topic here, but if you deliver at a city hospital, you almost want to file a notice of claim in the first 90 days just for the sheer sake of, and the shit sake of having something out there in case something does happen. But if you're required to plea to a specificity as to specific injuries, well that really is not a strategy.

Kyle Newman:

No. What you're talking about, it does not have to be pled with specificity, but I mean, you have to know essentially what your claim is. I mean, I guess that you could put in a general claim. Something is better than nothing. But to your point, I mean, it's so difficult, especially-

Matt Dolman:

That's horrible.

Kyle Newman:

It's horrible because first of all, people are, by nature, not litigious people. I mean, if you've never dealt with a lawyer, you never want to start to deal with one or have any issue with your kid or have to worry about this stuff. And people just might not have the resources to be able to really work these types of things up, which can be very complicated cases. And you do need the right type of lawyer who's able to have the right experts look at it and get medical records, which all take time. So it puts the patient and the mom and the kid had a big disadvantage in those types of cases.

Stan Gipe:

Sounds like though, a lot of these birth injury cases, what you're talking about, the parents don't even realize there's a birth injury when they're leaving the hospital. It's not until you start seeing the missed milestones, delayed development, stuff like that. So is it sort of incumbent upon the parents when they notice these things to go back and think about the delivery, think about things that might not have seemed as important initially, just to sort of double check in their mind, see if something have been missed?

Kyle Newman:

Definitely. But I think especially with labor and delivery, it's such a crazy experience that people generally aren't thinking about how is this doctor going to mess up this birth or what's happening? So it can be hard for people to recreate the whole experience, especially if you're at the hospital for 15 hours before you're finally in the later stages of labor and ultimately have a delivery. A lot of times also, people are going to be super hopeful if you have the potential of your child being injured at birth, you're going to error on the side of my baby's going to be okay that they're saying that with time it'll be okay. He or she will be okay. So I think people are just by nature going to be more positive with that and not really look into what exactly was done wrong. That's the big problem is that there are overt injury cases where the injuries are clear as day. And then there's cases where it's more nuanced where it's a hypoxic injury which might not manifest itself until several months into life.

Matt Dolman:

Now you mentioned at the very beginning of the podcast you're seeing a lot of these claims coming out of city hospitals, which disproportionately impacts the low socioeconomic demographic. Post-COVID, having seen so many medical professionals quit the profession, I remember seeing a, it was kind of a documentary, I think it was about a hospital in Elmhurst, Queens. And I'm trying to remember. Was it Wyckoff or...

Kyle Newman:

Yeah, I think it was Elmhurst Hospital.

Matt Dolman:

It was Elmhurst Hospital that had so many professionals-

Kyle Newman:

Which is a city hospital also.

Matt Dolman:

City hospital, yeah. I think it was like 30 physicians quit over a span of nine months because of how overcrowded and under-resourced they were and how many hours they're required to work. Is this getting worse?

Kyle Newman:

I think-

Matt Dolman:

Are more doctors having to spend longer duration of time without having breaks? And you're having very tired physicians not working with their full faculties and potentially making mistakes and errors that you wouldn't see otherwise that-

Kyle Newman:

The mistakes that I see these days, for the most part, are mistakes about how patients are worked up and treated in hospitals. Not so much the staffing issue, but more so what goes into the physician or the staff's thinking in working up various diseases and ailments. I think with electronic medical records and especially how physicians are trained these days, which have much more lax standards as far as the time that they have to be on call, the training requirements that they have, as well as the fact with electronic medical records and the fact that you go into a hospital, everyone, it's just a gut shot reflex. You order a CT scan and an MRI for anything that comes through.

I think that the art in medicine was always, you could figure out most of it from a good history and a physical exam. And that's something that is so lacking these days in medicine, in my opinion, from what I see every day as far as the workup and really the thought process that goes into evaluating some of these more challenging cases where physicians are just relying on an imaging study, which might not be, in most cases, you can find out what's going on with someone 95% of the time with a good history. And that's just really lacking I find it in these cases big time.

Matt Dolman:

The last question I'll leave you off with is, and again this is maybe a bit of a stretch, but are we seeing in terms of the amount of cases you've litigated, and I don't do med mal. Done a little bit of med mal my firm in the very beginning and now we outsource the med mal. It's so difficult. It's so expert-laden, cost-intensive with about 70% of these cases ending up in defense verdict. So I applaud you for trying these cases and having so many successful outcomes. You're one the better med mal lawyers in the country. How often do hospitals try to hide and cover up their mistakes and how did they do that?

Kyle Newman:

Well, I think the whole process really is, to a certain extent, a coverup of this entire thing. I mean, they have high price lawyers to extend these cases, to elongate this entire process to make it absolutely ridiculous for patients to get real answers and real justice in their cases. Hiding, as far as medical records go, I don't know how often that really happens. In this particular case I was talking about before, I mean, for a fetal heart tracing to just go missing, that is really suspect and I've seen other acts of that in the past. But I think that the process itself for medical malpractice cases is so against patients from the outset. The chips are just stacked against them from the beginning because of how hard these cases are and how difficult they are to prove. And just like you said, I mean they're the most expensive cases to litigate, the most time consuming.

And I see more and more that not as many attorneys actually want to litigate them because the process is just impossible, especially with the medical malpractice carriers, the insurance carriers who are the absolute worst, who never settle cases, who will take these cases to the bitter end, even if they know that they're wrong. A lot of these hospital systems are run by these doctor groups that always side with the doctors, that cannot be reasonable. So it's an uphill battle. But if you love trying these cases and litigating them, and if you have a valid case, then nothing better.

Matt Dolman:

With your skill level, the only suggestion I have to you is why wouldn't you take your practice nationally and pro hac vice into any med mal case you possibly can find in great birth injury case? Because your talent level is extraordinary. And there's not that many of you guys that do high level med mal work.

Kyle Newman:

Well, I mean-

Matt Dolman:

It's less and less every year.

Kyle Newman:

The one thing about med mal is if it's a departure here in New York, it's a departure anywhere. I mean, medicine is a universal thing, so I'd totally be up to it. For the past 15 years, I've honestly, Matt, so many cases in New York that have just to consume my time. So maybe in this next stage now that I feel like I actually kind of know what I'm doing at this point, that'll be the next challenge. But I thank you, man. I appreciate that.

Matt Dolman:

Gipe here. So I'm [inaudible: 00:22:43

Kyle Newman:

Thanks guys.

Stan Gipe:

Hey, thanks Kyle. I do appreciate it. Thanks for coming out.

Matt Dolman:

Yeah, learning about trial technology in the first podcast and learning about birth injury law and medical malpractice is just, it's outside of our normal wheelhouse.

Kyle Newman:

It's good stuff.

Matt Dolman:

So thank you very much. This wraps up-

Kyle Newman:

I'll be back anytime.

Matt Dolman:

We'll have you again. This wraps up another David vs. Goliath Podcast. Thank you again and have a great day.

Speaker 1:

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