James C. Johnston

Cerebral Palsy Litigation: Change Course or Abandon Ship

The cardinal driver of cerebral palsy litigation is electronic fetal monitoring, which has continued unabated for 40 years. Electronic fetal monitoring, however, is based on 19th-century childbirth myths, a virtually nonexistent scientific foundation, and has a false positive rate exceeding 99%. It has not affected the incidence of cerebral palsy. Electronic fetal monitoring has, however, increased the cesarian section rate, with the expected increase in mortality and morbidity risks to mothers and babies alike. This article explains why electronic fetal monitoring remains endorsed as efficacious in the worlds’ labor rooms and courtrooms despite being such a feeble medical modality. It also reviews the reasons professional organizations have failed to condemn the use of electronic fetal monitoring in courtrooms. The failures of tort reform, special cerebral palsy courts, and damage limits to stem the escalating litigation are discussed. Finally, the authors propose using a currently available evidence rule—the Daubert doctrine that excludes “junk science” from the courtroom—as the beginning of the end to cerebral palsy litigation and electronic fetal monitoring’s 40-year masquerade as science.

The Expert Witness in Medical Malpractice Litigation Through the Looking Glass

Neurologists have professional, ethical, and social obligations to ensure that expert witness testimony is reliable, objective, and truthful. In the past, an absence of professional regulatory oversight combined with immunity from civil litigation allowed the partisan expert to flourish. This is no longer the case. The expert witness unquestionably faces an increasingly perilous liability climate, and must be cognizant of the legal rules and procedures. The authors provide guidelines with risk management strategies for the neurologist serving as an expert witness.

Neonatal encephalopathy 2015: opportunity lost and words unspoken

Abstract The Task Force Study on Neonatal Encephalopathy Second Edition 2014 failed to address Electronic Fetal Monitoring (EFM) and its forty years of clinical futility, failed to condemn EFM’s continued use against physicians in the world’s courtrooms and ignored the ethical breaches EFM’s use compels physicians to commit daily. This article considers why these critical points were overlooked and asks why the Task Force recommended continued EFM use for all women in labor while simultaneously acknowledging EFM’s impotency. This paradox is explored among the background of trial lawyers’ involvement in cerebral palsy and the failure of birth-related professional organizations to recognize that the Daubert doctrine may be used to exclude EFM junk science from the world’s courtrooms.

Neurological Malpractice and Nonmalpractice Liability

This article provides an overview of the current neurological malpractice trends, and outlines management strategies for several common recurring claims involving headache, stroke, and epilepsy. Selected nonmalpractice liability issues are reviewed, focusing on the unique risks engendered by the forensic expert.

Life threatening intracerebral hemorrhage with isometheptene mucate, dichlorophenazine and acetaminophen combination therapy

A 45 year old female with no stroke risk factors suffered a massive intracerebral hemorrhage (ICH) after ingesting Midrin--a combination of isometheptene mucate, dichlorophenazine and acetaminophen. Neuroimaging revealed no evidence of structural disease or underlying vasculopathy. This is the first reported case of isometheptene induced ICH in the absence of underlying cerebrovascular disease. Physicians must be aware of the potential for this complication, and inquire about the use of isometheptene in unexplained cerebral hemorrhages. Neurological communities in countries with nonprescription isometheptene should discourage unsupervised or excessive use of the drug.

Syphilitic aortic aneurysm with spastic paraparesis: A novel presentation and review of the literature

Syphilitic aortic aneurismal erosion into the vertebral column with associated neurological dysfunction is extraordinarily rare, and the very few reported cases typically involve the descending aorta. We describe the novel presentation of a 55 year old man with a syphilitic aneurysm of the ascending aorta and arch causing spinal erosion with spastic paraparesis. Clinicians must remain cognizant that the resurgence of primary and secondary syphilis, exacerbated by the unrelenting HIV-AIDS epidemic, portends an increasing incidence of tertiary manifestations such as aortic aneurysm formation with its myriad complications including compressive myelopathy.

Neurological Fallacies Leading to Malpractice A Case Studies Approach

A young woman presents with an intracranial arachnoid cyst. Another is diagnosed with migraine headache. An elderly man awakens with a stroke. And a baby delivered vaginally after 2 hours of questionable electronic fetal monitoring patterns grows up to have cerebral palsy. These seemingly disparate cases share a common underlying theme: medical myths. Myths that may lead not only to misdiagnosis and treatment harms but to seemingly never-ending medical malpractice lawsuits, potentially culminating in a settlement or judgment against an unsuspecting neurologist. This article provides a case studies approach exposing the fallacies and highlighting proper management of these common neurologic presentations.

Cerebral Palsy and Electronic Fetal Monitoring: Rearranging The Titanicâs Deck Chairs

Electronic fetal monitoring (EFM) has repeatedly proven clinically ineffectual, caused more harm than good to mothers and babies alike, and trapped obstetricians into daily violations of fundamental medical ethics. EFM is also the foundation for the continuing worldwide cerebral palsy (CP) birth injury litigation crisis which routinely results in lottery-like verdicts and settlements which only benefit trial lawyers. Birth-related professional organizations (BRPOs) have had the power to stop EFM’s clinical proliferation, deal with the ethical violations, and put an end to the undeserved verdicts and settlements against physicians unjustly blamed for causing CP. These organizations have done nothing. This article reviews the myths behind EFM, explains why CP-EFM litigation is so successful, outlines the ethical dichotomy created by this scientifically flawed procedure, and proposes a solution to change the clinical standard of care, linking EFM to the Daubert exclusionary evidence doctrine recognized throughout the world’s courts, thereby ending CPEFM litigation.

Continuous Electronic Fetal Monitoring during Labor: A Critique and a Reply to Contemporary Proponents

A half century after continuous electronic fetal monitoring (EFM) became the omnipresent standard of care for the vast majority of labors in the developed countries, and the cornerstone for cerebral palsy litigation, EFM advocates still do not have any scientific evidence justifying EFM use in most labors or courtrooms. Yet, these EFM proponents continue rationalizing the procedure with a rhetorical fog of meaningless words, misleading statistics, archaic concepts, and a complete disregard for medical ethics. This article illustrates the current state of affairs by providing an evidence-based review penetrating the rhetorical fog of a prototypical EFM advocate.

The Ethics of Teaching Physicians Electronic Fetal Monitoring: And Now for the Rest of the Story

Electronic fetal monitoring (EFM) does not predict or prevent cerebral palsy (CP), but this myth remains entrenched in medical training and practice. The continued use of this ineffectual diagnostic modality increases the cesarean section rate with concomitant harms to mothers and babies alike. EFM, as it is used in defensive medical practice, is a violation of patient autonomy and raises serious ethical concerns. This review addresses the need for improved graduate medical education so that physicians and medical residents are taught both sides of the EFM-CP story.