Trial Magazine

Retain either an obstetrics (OB) expert or a maternal fetal medicine (MFM) expert, or both. These types of experts have the necessary background to provide a standard of care opinion.
Unless the radiology imaging from the hospital clearly shows evidence of a birth injury, you should retain a pediatric neuroradiologist.

It has been said that if you want a strong house, you must first have a solid foundation. While cliché, the point remains salient. You cannot guarantee a favorable outcome for your client in a birth injury case, but a wise attorney will create a strong foundation through experts. Whether you are taking a deposition or making an argument at trial, your retained experts are the very foundation on which success lies.
How do you go about determining which experts are necessary? How do you find a solid expert who adds value to your client’s case? How do you prepare an expert to cement the evidence on negligence? The answers to these questions are paramount because they determine the quality of the foundation of your client’s birth injury case.
The Initial Conundrum of Selecting Experts
You would not start building a house without some sort of blueprint, and similarly, the first step in any birth injury case is to devise a plan. Whether it’s a brainstorming session, an outline, discussions with peers, or a written narrative, you need a plan you can refer to that is thorough. Each birth injury case presents its own set of challenges. At the start of any case, identify strengths and weaknesses, investigate, identify the sources of any problems, determine the actions required to address concerns, and tackle issues head-on.
Retain experts as early as possible. Some of the best experts in this area work for both plaintiffs and defendants, so you want to prevent the defense from ending up with the experts you had planned to use later. In this area, plaintiffs hold a distinct advantage over the defense: We know a lawsuit is going to be filed before the defense does.
Prepare for anticipated defenses. At this initial stage of retaining experts, always ask yourself, “What will the defense say?” The answer to this question is highly fact driven but will keep you grounded. There is little doubt that the defense will get creative with alternative causes for a birth injury other than negligence. Take a moment to revert to the blueprint, and discuss your plan with your experts. Discuss possible alternative causes for the injury—no matter how remote. Have an answer to each alternative theory on causation to build a truly sturdy case.
Necessary experts. The two biggest challenges in a birth injury case are obvious: standard of care and causation. Think of these requirements as the support beams that strengthen everything else. Standard of care is the fasteners holding everything in place, and causation is the drywall that finishes the wall. Much like drywall is not useful if there is nothing to hold it in place, so too is causation if you do not first have a violation of the standard of care.
To begin, retain an obstetrics (OB) expert or a maternal fetal medicine (MFM) expert, or both. Do this presuit—these experts have the necessary background to provide standard of care and causation opinions and can help narrow the case down and provide direction on where to go next. Some may prefer to start with a neuroradiology expert to state whether the imaging supports an injury around the time of birth. But we argue that a neuroradiologist can provide a window of injury that is only within days around the time of birth—not minutes or hours.
Further, this approach requires clinical correlation (correlating the clinical findings) with the imaging findings to prove an injury at or around the time of birth. Another school of thought is to start with a labor and delivery nurse to review the strip to see whether the strip supports further investigation of negligence. But regardless of what a nursing expert says about the strip, an OB or MFM expert will be required to prove at least causation, which a nurse cannot do. So to keep expenses low, especially in the review stage, start with one expert who can do both standard of care and causation—OB or MFM.
Other experts who are often necessary are a neonatologist or a pediatric neurologist. Retaining either of these experts presuit is recommended because they can help determine the extent of the injury or prepare for causation defenses that may come up. The most standard defense in birth injury litigation is timing, such as that the injury happened well before labor and delivery.
Another defense is that the brain injury is due to fetal inflammatory response syndrome (FIRS).1 Defendants argue that FIRS is a maternal response to an infection within the amniotic fluid, and the baby has an inflammatory response to the fluid. The defense expert will opine that this inflammatory response caused the brain damage, not any negligence by a provider. Always be prepared to respond to timing defenses, such as FIRS, by having the right experts.
Retaining a pediatric neuroradiologist may be optional in the review stage; however, this expert is required once a lawsuit is filed because the defense likes to use neuroimaging to argue that the injury happened before birth.
A life care planner is an expert who is required once the lawsuit is filed. This type of expert is a must to prove damages.2 Some life care planners are physicians, and some are nurses. We prefer to retain physician life care planners. Nurse life care planners need an MD to sign off on their recommendations, so they may end up costing more in the long run.
You also need to retain an economist, who can quantify your client’s earning capacity. In the most severe injury cases, it is unlikely that your client will graduate high school, get married, or work. An economist helps bridge the gap and get as accurate a number as possible of the full scope of your client’s damages.
When it comes to economists, beware. The defense loves to play games with one particular concept of damages in birth injury cases: “present value.”3 In most states, damages are required to be formulated in present value; however, jurisdictions vary.4 In simple terms, present value determines how much money is needed now to achieve a certain amount later. The defense uses present value to severely decrease the damages and the amount the jury would need to award to make your client “whole” again. Having your economist testify on this is beneficial to fully inform the jury and present fair present value amounts.
Optional experts. Determining when an expert is necessary versus optional is a tough line to toe. The experts discussed so far are typically required through all stages of litigation. Almost always an OB or MFM expert is necessary presuit. The need for other experts presuit will be based on case-specific facts and depends on what is needed to prove the standard of care and causation, as well as local rules. Review the records, discuss the facts that led to the injury with your OB or MFM expert, read the literature, and make an informed decision on whether the case, based on the facts, warrants a neonatologist,5 pediatrics nurse,6 pediatric neurologist,7 or pediatric neuroradiologist.8
The typical birth injury case requires a neonatologist for causation issues. Some of the most frequent causation issues that arise include the timing of the injury and interpretation of post-birth labs. A pediatric neurologist is necessary to define the type of injury the child suffered and how that relates to an injury around the time of birth. Other experts can answer that question as well, such as an OB expert or a neonatologist, but it is beneficial to have another perspective from someone who provides consultations in the hospital and provides actual office care after discharge.
Unless the radiology imaging from the hospital clearly shows evidence of a birth injury, you should retain a pediatric neuroradiologist. The defense almost always hires a pediatric neuroradiologist to dispute what appears to be clear radiologic evidence of a birth injury. With that in mind, consider retaining a pediatric neuroradiologist to at least “back up” the treating doctors.
Determining whether to exclude. In most other types of medical negligence cases, it is not necessary to actively think about what types of experts you should exclude. However, in birth injury litigation, which experts to exclude may be just as important of a question as which experts to include. The answer to “who should be excluded” is highly fact dependent. Whether you should retain a particular type of expert depends on what may be proven by the evidence.
Take, for example, a placental pathologist. A defense placental pathologist will say something along the lines that they see “something on the slides” to prove that the injury happened prebirth or that there was an infection that caused the brain injury. In some instances, you may have made the decision to exclude an expert, but then find later that the expert is necessary.
In some jurisdictions, depending on the rules of discovery, a tactical advantage may be gained by waiting until the defense discloses a placental pathologist expert before retaining and disclosing your own placental pathologist. Some may prefer to already have retained a placental pathologist
and then disclose in rebuttal, if necessary. There is no one right approach. And at times, you may not need a placental pathologist and may just use cross-examination to impeach the defense’s expert.
In birth injury cases, it can be tempting to fall into a rut using the same experts and treating the initial workup as routine. This is a trap. Each case is unique and requires a different workup. As with all litigation, be ready to follow your initial blueprint and adapt to the facts as you learn them. This plan gives you the best support for the foundation of your client’s case.
Disclosing Expert Reports
Even with a solid foundation provided
by your experts, disclosing expert reports can be nerve-racking. Much of the stress associated with disclosures can be alleviated by thorough preparation. This includes knowing both the law and the customs of your jurisdiction. For example, are you required to provide your expert’s full opinion, or will an outline of the opinion suffice? Rules on disclosures should be seen as a floor—the minimum necessary to comply with your jurisdiction’s requirements.
Take, for example, Missouri9 and Oklahoma.10 These two states require minimal disclosure of expert opinions and require both parties to take expert depositions to learn the specific opinions and basis for the same. Kansas and 22 other jurisdictions more closely follow Federal Rule of Civil Procedure 26.11 Under Rule 26(a)(2)(B)(i)–(ii), the disclosure must include a “complete statement of all opinions the witness will express and the basis and reasons for them,” as well as the “substance of the facts and opinions to which the expert is expected to testify.”
Differences regarding disclosure requirements may vary among judicial districts even within the same state. For example, in Johnson County, Kansas (a suburb of Kansas City), disclosure of expert opinions may be in pleading form. All other Kansas judicial districts require signed expert reports. This fact may fly under the radar since it is not a written rule but rather a norm within the legal community.
The requirements may differ from jurisdiction to jurisdiction, but one particular method with a significant upside is using a signed expert report. Like all methods, there are pros and cons, but the pros take the day in birth injury cases. A signed expert report is a concise statement of the opinions each expert will be offering. This helps to keep both sides and the expert focused during the expert’s deposition. It also allows for clearly outlining each expert’s opinions, which can become muddled and confusing in birth injury cases because of the large number of experts and opinions.
Consider this case example to illustrate the point: A 34-week pregnant mother arrives at the hospital at 10:00 a.m. with a chief complaint of severe abdominal pain, which is not similar to her contractions from previous pregnancies. She is admitted to the labor and delivery triage area, and fetal monitoring immediately begins. Monitoring shows a category I strip.12 Providers run labs, and they come back normal.
The obstetrician orders a biophysical profile (BPP)13 and abdominal ultrasound to investigate the severe abdominal pain. Fetal monitoring remains category I with a baseline in the 150s. The sonographer begins the BPP around 1:30 p.m. and finds the fetal heart rate (FHR) at 114 bpm. The sonographer continues the BPP exam and checks on the FHR sporadically and finds that it is decreasing over time. Around 1:42 p.m., the sonographer also identifies evidence of a possible placental abruption.14 At each of these points in time, the sonographer does not contact any provider. The sonographer ends the BPP early, packs up the sonogram machine, and goes out to the nurse’s station and informs the nurse of a possible placental abruption.
The nurse immediately informs the charge nurse, goes to the mother’s bedside, and struggles to find an FHR. Around 2:06 p.m., the charge nurse is again notified, and medical OB staff comes to the mother’s bedside. The laborist finds the FHR in the 30s–40s via bedside ultrasound and orders an emergency C-section. The baby is delivered at 2:14 p.m. severely acidotic and is later diagnosed with severe hypoxic-ischemic encephalopathy (HIE), a lack of oxygen at or near the time of birth.
Based on these facts, what opinions need to be disclosed and how much specificity is necessary? As mentioned previously, each jurisdiction has different rules, but erring on the side of specific testimony holds tactical value. Your OB expert should comment on the standard of care of the sonographer, standard of care of the nursing staff and OB medical staff after notification, and causation of the HIE based on the providers’ breaches of those standards.
An expert opinion on causation brings up a wide array of options. How specific should one get? Should the OB expert opine generally that the sonographer’s conduct caused the HIE injury? The favored approach is to lay out the opinions in a more specific manner. In this example, the OB expert should opine that but for the sonographer’s deviation from the standard of care and failure to notify the nursing and OB medical staff of the bradycardic heart rate, the baby would have been delivered 14–32 minutes earlier and would have been healthy.
Defending Expert Testimony
With the information known at this point, ensure that anywhere that an expert could take on water is accounted for. This includes understanding all the expert’s weaknesses—factual, legal, or otherwise. And they all should be accounted for before disclosing the expert report. Defending an expert’s testimony is one of the biggest challenges you will face. Hopefully all the plaintiff experts’ testimony meshes into a cohesive, easy-to-follow story. Assuming this is true, deposition prep should be a breeze.
Talk to each expert about the case narrative, what role the expert plays in helping the jury to understand this part of the narrative, and any defenses that may come up. There are many standard attacks that most defense attorneys use to try to make a plaintiff expert look bad. Each should be discussed as in-depth as needed with each expert. Some of the more routine attacks include starting with “You would agree with me that” and then asking the following:
sitting here today, you have the benefit of knowing the outcome?
medicine is not an exact science?
one doctor may exercise their best judgment with the facts as they know them, and this is not necessarily negligence?
an adverse or poor outcome does not always equate to negligence?
health care providers do not always have complete knowledge or time to obtain all information?
two providers may have two different diagnoses without being negligent?15
These questions and others like them do not help bring out new information or serve to get to the truth of the matter but rather are simplified statements that are difficult to argue when posed as a question. An expert who has been told about these questions will be ready to not fall into the trap of just repeatedly answering “yes.”
The End Game
At this point, there are two avenues ahead: reaching a settlement with the defendant or proceeding to trial.
Settlement. Settlement discussions are typically your last chance to convince the opposition of the strength of your case theory and push them to resolve the case without going to trial. The best way to ensure that you have a solid case at this stage is to keep your experts involved.
Start with your expert reports, assuming they have been disclosed, as a jumping-off point for settlement discussions. By the end of your case, there may be a few surprises that you hope to spring at trial, but besides those, the defense believes it knows your story. This is when you convince the other side why they do not want to go to trial.
Reiterating the same exact words from the expert report to the person reading the demand letter or the mediator is typically less than convincing. Instead, take a moment to be persuasive. Stick to the medicine and the facts, but weave them together in a way that you would present to the jury. Explain who the players are, what the standard of care required, how your experts are certain that there was a deviation, what your experts will testify to, and how your experts will explain the damage the defendants caused. Presenting your experts’ opinions in this cohesive manner creates a much more refined final product that highlights how the defense should not want this matter to go to trial.
Trial. If your client’s case goes to trial, do not forget to use your experts to the fullest. Every detail is important. Consider prepping your expert again just like the preparation for the deposition; however, this time you need to go a step further.
Consider the expert’s demeanor, the way the expert phrases their answers, the methods they use to demonstrate the medicine to the jury, and even where the expert should be looking when answering questions. Before trial is the time to discuss any hypotheticals that you may pose to the expert, defenses, objections, where to stand, what to wear, and what your theme is. The experts you retained help to provide a sound medical backbone to your client’s story. Make sure that those opinions fit into the narrative correctly.
With multiple experts testifying to different aspects of the same negligent act, you can become tripped up. The best way to avoid this is to start by retaining the right experts who have the experience you need. With each step in the process, do not forget that the experts and their opinions form the foundation for a strong case.

AAJ RESOURCES
n Birth Trauma Litigation Group
n “Birth Injury: Shoulder Dystocia and Brachial Plexus” Litigation Packet
n Mastering the Medicine Seminar, Nov. 2–3, Atlanta, www.justice.org/education


Ryan Prochaska is a managing partner and Jakob Provo is an associate attorney at Prochaska, Howell, & Prochaska in Wichita, Kan. They can be reached at ryan@phpattorneys.com and jprovo@phpattorneys.com, respectively.
Notes
1. FIRS is defined as a condition characterized by “systemic inflammation and an elevation of fetal plasma interleukin-6.” Francesca Gotsch, et al., The Fetal Inflammatory Response Syndrome, Clinical Obstetrics and Gynecology, 652–83 (Sept. 2007), DOI: 10.1097/GRF.0b013e31811ebef6.
2. For more on life care planners, see Nancy Boyd, Hiring a Life Care Planner, Trial, Apr. 2017, at 49; David L. Kwass & Elizabeth A. Bailey, Protect Your Life Care Plan, Trial, Apr. 2017, at 52.
3. For more on present value calculations, see Luke Metzler, Ensuring Children’s Future Care Needs, Trial, Dec. 2022, at 18.
4. St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 410 (U.S. 1985) (requiring future monetary loss under workers’ compensation to be adjusted to present value); Hall v. Am. Alliance Ins. Co., 545 N.W.2d 520 (Wis. Ct. App. 1995) (defendant required to produce evidence of future losses to present value).
5. A neonatologist specializes in premature babies or newborn babies who are high-risk or have complex health conditions. See Neonatologist, Cleveland Clinic, https://tinyurl.com/34ypw5wj.
6. A pediatric nurse works in neonatal units, pediatric critical care units, or pediatric oncology wards. See Pediatric Nurse, ExploreHealthCareers.org, https://tinyurl.com/z5dn6c6t.
7. A pediatric neurologist treats children who have issues with their nervous system. See What is a Child Neurologist?, Healthychildren.org, https://tinyurl.com/2cbcc2vh.
8. A medical doctor who specializes in neurological conditions and diseases that present via imaging in infants and children. See The Importance of a Pediatric Neuroradiology Second Opinion, DocPanel, Sept. 1, 2021, https://www.docpanel.com/blog/post/importance-pediatric-
neuroradiology-second-opinion.
9. Mo. Sup. Ct. R. 56.01(b)(6)(A)–(B).
10. Okla. Stat. tit. 12, §3226(B)(4)(a)(1)–(3).
11. As of 2021, 23 jurisdictions have adopted FRCP 26 or something similar. Dan Schlueter & Fahad Mithavayani, Hawaii and Texas Join Growing List of States Adopting Federal Rule Restricting Expert Discovery, Bloomberg Tax, Aug. 26, 2021, https://tinyurl.com/5n72yy2p.
12. Category I strip is one with a fetal heart baseline of 110-160 beats per minute with moderate variability. See Intrapartum Fetal Heart Rate Monitoring, perinatology.com, https://tinyurl.com/twz8cj3d.
13. BPP is a series of tests done on ultrasound to check the health of the fetus. See Biophysical Profile: Ultrasound and Nonstress Test, Johns Hopkins Medicine, https://tinyurl.com/2aske8sv.
14. Placental abruption is the placenta separating from the wall of the uterus before birth. See Placental Abruption, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/9435-placental-abruption.
15. This list is not meant to be comprehensive, and other routine arguments may be used by defense attorneys in your jurisdiction. The best way to prepare for attacks by the defense is to read deposition transcripts of experts being deposed in cases that are similar to yours in your jurisdiction.