An article recently published in the New York Law Journal – Precluding Med Mal ‘Maternal Forces’ Defense – is shedding light on an emerging trend in birth injury cases. According to the article, several recent birth injury cases involving brachial plexus – also known as Erb’s palsy – have begun to preclude, or prevent, a once-common defense theory.
The defense theory in question is referred to as the “maternal forces” defense. Typically, defense attorneys representing health care providers accused of medical malpractice would use this defense to minimize their clients’ degree of fault or liability. The defense asserts that birth injuries such as brachial plexus could sometimes occur as the result of natural – or maternal – forces of labor, such as contractions or pushing during delivery.
For decades, it was believed that brachial plexus injuries in healthy newborns who underwent vaginal deliveries were the result of a physician’s negligence. These cases were often settled. Over time, however, the maternal forces theory became a common defense and resulted in many defense victories. Today, courts are beginning to question the validity of the maternal forces theory, particularly because it may be scientifically unreliable.
In medical malpractice cases, including birth injury cases, courts have the authority to prevent unreliable scientific testimony from potentially confusing jurors. In order to determine whether the theory at issue – being used to support a victim’s claim or to defend against malpractice allegations – is unreliable, courts would assess whether the theory was “generally accepted” in the scientific community and met the following two criteria:
- General Causation – the disease or injury can be caused by the manner being claimed; and
- Specific Causation – reliable scientific evidence that proves the injury in the particular case was in fact caused by the manner being claimed.
Evidence, including testimony, would have to meet both general and specific causation – something that New York courts are saying is not the case for the maternal forces defense in brachial plexus cases.
While time will tell how this seeming trend will impact birth injury cases in the future and throughout the country, the fact remains that significant decisions have already been reached in cases where the maternal forces defense was not permitted. At The Law Offices of Dr. Michael M. Wilson, M.D., J.D. & Associates, Attorney Michael Wilson uses his legal and medical experience to closely monitor these types of trends for the benefit of our firm’s clients.
If you would like more information about pursuing justice and compensation for a birth injury you believe was caused by a health care provider, call (202) 223-4488 to speak with a Washington, DC birth injury lawyer.
Dr. Michael M. Wilson is an attorney and a physician who earned his undergraduate degree from the Massachusetts Institute of Technology and his legal and medical degrees from Georgetown University. He has focused in the area of medical malpractice for more than three decades and secured more than $100 million in settlements and verdicts on behalf of clients throughout the country. He is admitted to practice in the District of Columbia and New York as well as the U.S. Court of Appeals for the District of Columbia and the U.S. Supreme Court. He is listed in America’s Top 100 High Stakes Litigators.
