Hiring the right attorney to handle a Texas labor and delivery hypoxic ischemic encephalopathy (HIE) or birth-related brain injury medical malpractice case is an important decision.
Raising a baby with significant health care needs because of negligence is an expensive undertaking. Choosing a lawyer who’s inexperienced in this complicated area of Texas law may end with further bad news, depriving the family of the opportunity to seek financial compensation through the court system.
Texas law imposes some tough standards on victims of medical malpractice, dating back to tort reform legislation enacted in 2003. At the top of the list is the preliminary expert report requirement, which mandates that medical malpractice plaintiffs produce written expert reports from one or more physician and nursing experts detailing how the defendant health care providers were negligent and caused harm to the patient. I often described it as putting the cart before the horse, because this has to be done before basic evidence can be collected.
Factors to consider when hiring a Texas HIE/birth injury medical malpractice lawyer
Many lawyers who handle general personal injury claims, such as car wrecks and 18-wheeler accidents, aren’t familiar with these requirements because they don’t apply to all personal injury cases. When researching Texas lawyers to handle an HIE or birth injury claim, consider these factors:
• Does the attorney focus on birth and medical malpractice claims? This is a unique and complex area of Texas law.
• Does the lawyer have any healthcare experience?
• Does the lawyer have any previous experience defending hospitals, doctors, or health care providers?
• Does the attorney write and speak about medical malpractice law?
• How have clients and other attorneys reviewed the attorney?
• Does the lawyer’s website advertise that he or she handles all kinds of cases? In my experience, it’s unlikely that a lawyer who has a broad focus on everything from criminal cases, bankruptcy, and family law matters will have the know-how to handle an HIE or birth injury case competently.
Many Texas personal injury attorneys don’t have real birth injury or medical malpractice experience
When there are problems with an HIE or brain injury medical malpractice case in Texas, it can spell trouble for plaintiffs. That’s what happened in a recent case out of the Amarillo Court of Appeals, which you can read here.
To be clear, this wasn’t a case that Painter Law Firm handled.
The plaintiffs in that case were represented by a Texas law firm that aggressively advertises as handling all kinds of accidents and injuries including car and truck accidents. In other words, it’s a general personal injury law firm, not one that focuses on medical and birth injury malpractice claims. Could that have been a factor in the bad outcome?
Well, let's look at what happened in the case.
The parents of a baby filed a medical malpractice lawsuit against a hospital and obstetrician. In an attempt to satisfy the demanding Texas tort reform requirements of medical malpractice cases, the plaintiffs’ attorney timely served expert reports from two physicians and a nurse.
The facts of the case began with the mom going to the hospital in labor. She was given Pitocin, a drug to help uterine contractions and cause progression to labor. The labor and delivery nurses started electronic fetal monitoring, which showed decelerations (significant drops) in the fetal heart rate related to contractions.
Medical health professionals refer to these as late decelerations, which are considered non-reassuring signs of fetal wellbeing. Medical experts contend that late decelerations are an indication to reduce Pitocin because excessive contractions, called tachysystole, can cause the baby to go into a hypoxic state, meaning inadequate levels of oxygen reach the brain.
The crux of the plaintiffs’ experts’ criticisms in this case is that the obstetrician and nurses should have performed an expedited or emergency C-section. Instead, the obstetrician left the hospital for a period of time. While Pitocin continued to be administered, there was a delay in delivering the baby. The experts linked the delay in delivery to the baby’s hypoxic ischemic encephalopathy (HIE) and brain injury.
Expert witness problems
Again, mind you, this wasn’t a case that our law firm handled. I want to emphasize that because what happened here is utterly bad news.
As sometimes is the case, though, things seemed to start out alright. At the trial court level, the healthcare defendants objected to the sufficiency of plaintiffs’ expert reports.
But then the defendants appealed the trial court’s decision. That’s their right. And the Amarillo Court of Appeals reversed the trial court’s decision, though, finding that the plaintiffs’ expert reports merely suggested the possibility that the delay in delivering the baby caused the HIE and brain injury.
The court’s opinion included this sobering statement, “No doubt, something happened leaving child and parent to suffer the consequences. But a tragedy does not relieve anyone, including the judiciary, from complying with [tort reform requirements]. While the experts at bar proffered a litany of allegedly deficient conduct, they failed to explain how and why each caused, within reasonably medical probability, [the baby’s HIE and brain injury]. This makes their reports less than a fair summary allowing jurists to reasonably conclude that either [the hospital or obstetrician] caused the harm suffered by [the baby]. To the extent that the trial court held otherwise, it abused its discretion.”
As required by the tort reform statute, when the Court of Appeals reversed the trial court order, it directed the trial court to calculate and award the defendants attorney’s fees and court costs. This means that the family of the baby born with HIE and a brain injury will not have to pay the hospital and physician’s attorney’s fees and court costs.
In Texas, experience matters
If your family has been devastated by a baby born with HIE or a brain injury in Texas, contact a top-rated, experienced Texas birth injury medical malpractice attorney for a free strategy session about your potential case.
