A doctor sued for malpractice should have been allowed to show that an infection in a mother’s womb was the underlying cause of her child’s permanent brain damage.
Because a judge excluded the doctor’s experts on the subject, a $12 million jury verdict is in the ash heap.
The case involved the injuries suffered by Benjamin Hayes when he was born at the Central Du Page Hospital in Illinois in 1999.
Benjamin suffers from cerebral palsy.
Aaron and Michelle Hayes are Benjamin’s parents and they blame his condition on Dr. Steven Armbrust.
Armbrust is a family practitioner who provided Michelle with prenatal care. The doctor also was in attendance when Michelle went into labor.
According to Benjamin’s parents, the boy suffered neurological injuries because Dr. Armbrust negligently delayed a cesarean section.
Doctor Armbrust had a different explanation for what happened.
According to his experts, the placenta and Michelle’s amniotic cavity were infected. The infections — identified by the experts as chorioamnionitis and funisitis — caused a “cascade of cytokines” that produced fetal inflammatory response syndrome in Benjamin, which caused his brain damage.
Doctor Armbrust’s experts were also prepared to testify that Benjamin’s body suffered from group beta strep at the time of birth, and that this in utero bacterial infection also caused brain damage.
Unfortunately for Dr. Armbrust, an Illinois trial judge excluded this evidence.
Judge Hollis Webster found that, although the defense experts relied on scientific principles and methodology that passed the “general acceptance” test of Frye v. United States, their conclusions were too speculative in light of the state of the evidence in the medical records of Benjamin’s birth.
Without this key expert testimony, the jury stepped up and socked Dr. Armbrust with a $12 million verdict.
But last week the Illinois Court of Appeals decided that Judge Webster had made a critical error in excluding Dr. Armbrust’s infection-causation experts.
The court agreed with Judge Webster that the infection-causation theory proposed by the defense experts met the Frye standard of general scientific acceptance.
Of course, Benjamin’s lawyers introduced their own experts to refute the theory that the infections in this case could be the cause of the boy’s brain damage.
But the court rejected the notion that the Frye standard requires “unanimity” of scientific thought.
The court explained that “general acceptance” under Frye “does not mean universal acceptance, and it does not require that the methodology in question be accepted by unanimity, consensus, or even a majority of experts.
“Defendants’ evidence meets the Frye standard because defendants’ experts reasonably relied on methods generally accepted in the relevant field. Moreover, the relative complexity and novelty of the subject matter are irrelevant, as Frye applies only to ‘new’ or ‘novel’ scientific methodologies.”
Getting to the nub of the matter, the court concluded that there was plenty of clinical evidence in the medical record to support the infection-causation defense formulated by Dr. Armbrust’s experts.
Doctor Armbrust’s experts opined that the presence of infection, which was indicated by Benjamin’s positive blood culture at birth, was corroborated by a variety of objective indicators.
Of note, the court cited evidence that bacteria consistent with group beta strep was found on the fetal membranes covering the placenta as well as the amniotic cavity.
There was evidence of maternal fever at the time of birth and the presence of funisitis, the inflammation of the umbilical cord, indicated an ascending infection.
The court also found that Benjamin’s condition at birth also supported the experts’ infection-causation opinions.
The medical record showed that Benjamin was in a depressed state, experiencing seizures and white blood cell ratios that indicated an inflammatory reaction. There were also clinical signs of sepsis, including pulmonary hypertension, irritability, and hypoxia.
Then there was the fact that Benjamin needed ventilation for seven days.
The court conceded that there were holes in the medical record, after all the case went to trial eight years after Benjamin was born.
“The infection-causation defense would be stronger if cultures from the placenta and the surrounding structures had been taken and had shown [group beta strep] bacteria,” the court observed.
However, the court said that “the absence of such a test and a positive result does not render the underlying theory too speculative to submit to the finder of fact.
“The defense had clinical evidence of inflammation in the placenta and the umbilical cord and of bacteria in the placenta. The weight to be given the evidence is to be decided by the jury, not the trial court.” (Northern Trust Company v. Burandt and Armbrust, LLP)
So Dr. Armbrust gets a new trial in which his experts will be allowed to present their infection-causation theories.
But the bet here is that, with each side getting a taste of courtroom victory, the case is ripe for the parties to reach a settlement and avoid a new trial altogether.
- Pat Murphy