Birth Injury Daubert: Kiebler v. Johns Hopkins 1

The Baltimore Medical Malpractice Lawyer Blog covers Maryland appellate opinions in medical malpractice cases. This Blog post features the September 24, 2024, unreported opinion in Kiebler v. Johns Hopkins Bayview Medical Center, No. 2173. Expert testimony is one of the most frequent topics in medical malpractice appellate opinions. Accordingly, part 1 features the court’s application of Daubert to exclude the plaintiff’s expert witnesses in a cerebral palsy birth injury case. Part 2 will address the court denying the plaintiff’s claim that the trial judge should have recused himself.

Factual Background

The plaintiff, born prematurely at 30 weeks, now suffers from spastic diplegic cerebral palsy, a condition causing stiffness in the leg muscles. His parents filed a medical malpractice case, alleging negligence before and during delivery. This case revolves around the doctor’s decision-making process during the delivery. (Op. at 1).

When the mother presented to the hospital for the second time for decreased fetal movement, a biophysical profile for fetal well-being scored 6 out of 10. She also had severe preeclampsia. Afterward, the doctor admitted her. (Id. at 5).

At 3:30 am the following day, the fetal heart rate tracings got worse to category II. They worsened more by 7 or 8 am, indicating potential fetal distress. At 8:17 am, the doctor called for an emergency c-section, which he accomplished at 8:50 am. Afterward, the Apgar scores for the baby’s condition were 2 and 6. (Id. at 5-6).

Then the umbilical cord gas revealed acidemia from excessively low blood pH. The plaintiff did not have any seizures, and an ultrasound of the head was normal. (Id. at 6).

The plaintiff argued that the doctor should have done the c-section by midnight, and it would have avoided the injury. (Id. at 7).

The defense motioned for Daubert exclusion of birth injury causation experts under Rule 5-702 and Daubert. The court granted it and entered summary judgment for the defense. This decision was a turning point in the case. The plaintiff appealed.  (Id. at 9, 15).

Appellate Court on Daubert Exclusion of Birth Injury Causation

The standard of review for the expert exclusion is the deferential abuse of discretion. Under Rule 5-702, the issue was whether there was a sufficient factual basis to support the expert testimony. The court then used factors from the Daubert case (Id. at 18-19).

Daubert cases often involve extensive analysis of the parties’ experts and evidence. In this case, the Appellate Court affirmed the circuit court’s decision, setting forth its analysis in one paragraph. The court found insufficient support for the position that fetal heart rate tracings, acidemia, nucleated red blood cell count, and neuroimaging together supported the cause of injury. The court found persuasive the medical literature that states that the plaintiff’s prematurity put him at a 40-50 times higher risk for cerebral palsy than a full-term baby. (Id. at 20).

The court added that even if it were doing a de novo review, it would affirm the circuit court. (Id.)

The court did not address the differential diagnoses that the plaintiff’s experts performed or the literature they relied upon.

Commentary by the Maryland Medical Malpractice Lawyer on Daubert Exclusion of Birth Injury Causation

With experience in handling birth injury cases, I am familiar with the battles of the experts and the defense’s attempts to exclude the plaintiff’s experts.

In another Blog post, I wrote about ACOG, the organization of OB/GYNs that produces literature concerning birth injury cases. ACOG is in favor of limiting and eliminating birth injury lawsuits and the damages they seek. It spends millions of dollars in political lobbying against birth injury victims’ rights.

ACOG issues literature stating what it says is needed to prove a birth injury. Yet I have never seen a court acknowledge ACOG’s admitted bias when discussing literature. ACOG’s literature sets strict criteria for establishing the causation of a birth injury. The slightest deviation from these criteria can defeat the causation of the birth injury. This restrictiveness seeks to trump the more likely than not legal standard that experts use in opining on causation.

Many OBs share this view, and I’ve met some who have refused to be members of ACOG because of its agenda.

By examining the facts of this case, we can then clearly see the stark contrast between ACOG’s limited view of causation and the one that guides experienced OB practitioners. Accordingly, this comparison will provide you with a deeper understanding of the issue of Daubert exclusion of birth injury causation.

OB Agreement

Heart rate monitoring has a purpose. Of course, it does; otherwise, they wouldn’t do it.

Everyone in this case agrees that the heart rate tracings worsened in the early morning hours that the plaintiff was born.

All the OBs agree that the biophysical profile reflects fetal well-being, and the plaintiff’s results worsened.

Everyone agrees that the mother was diagnosed with preeclampsia, which can cause permanent injury to the baby.

Everyone agrees that these troublesome signs reached the point that the doctor had to do an emergency C-section. Why? It was needed to avoid injury to the baby. The difference between the plaintiff and the defense is that the plaintiff says the doctor should have done it earlier in response to troublesome signs. More likely than not, the earlier C-section would have avoided this birth injury.

Everyone agrees that the baby suffered injury.

However, despite the evidence, ACOG’s influence prevails. The minor plaintiff is left without recourse, facing a lifetime of disability and medical bills.

All the OBs will move on to the next deliveries, hoping to respond timely to worrisome fetal developments, knowing that doing so likely will avoid injury to the baby.

Maryland is new to the Daubert standard. Hopefully the Maryland Supreme Court will reverse this opinion on Daubert birth injury exclusion.

For additional Blog posts on expert testimony, read Monroe v. UMMC and Asokere v. Waldrop.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.