Court Upholds Substantial Birth Injury Ruling

A recent ruling by a Wisconsin Appeals Court means that a $900,000 birth injury award will stand. As reported by the Wisconsin Bar, the defendant physician appealed on the grounds that expert testimony presented at trial should have been excluded. The appeals court did not agree.

The underlying case stems from a delivery where the newborn received extensive nerve damage, which left her left arm permanently impaired. The parents filed a negligence lawsuit against the OBGYN and called another physician to give expert testimony during trial. The witness doctor gave the following testimony:

*An ultrasound should have been performed prior to birth for an estimation of fetal weight
*No three-hour glucose test was performed on the pregnant mother to detect gestational diabetes
*A vacuum-assisted delivery was inappropriate due to the baby’s birth weight
*The defendant’s actions fell below the acceptable standard of care for similarly situated doctors in the area
*The defendant’s actions and lack of action led to a significantly greater risk for shoulder dystocia
Prior to the trial, the defendant attempted to get the expert testimony excluded, but the court ruled against her. A jury found her negligent in the case and awarded close to $900,000 in damages. The defendant appealed, asserting that the expert testimony fell short of the state’s standard of admissibility.

Admissibility of Witness Testimony

The Illinois Rules of Evidence governs the admissibility of expert testimony in a court of law. Generally, an individual can testify as an expert if “his experience and qualifications afford him the knowledge that is not common to laypersons and where his testimony will aid the trier of fact in reaching its conclusions.” The source of the knowledge can be education, training, research or employment experience. Trial courts maintain substantial discretion in determining whether to admit expert testimony.

In birth injury medical malpractice cases, state legislation gives more detailed standards for the court’s consideration, including:

***The relevance of the expert’s medical specialty to the treatment at issue in the case. For example, it is generally not appropriate for a dentist to act as an expert witness in a birth injury case.

***The amount of time that the expert has given to the practice of medicine or teaching of medical care for the treatment at issue in the case.

***The expert’s license status and whether it is in the same medical expertise as the defendant.

If the court is satisfied that these requirements are met, it can exercise its discretion in admitting expert testimony. In the Wisconsin case, the defendant argued that the witness did not rely on peer reviewed publications to support his opinion. She also questioned the reliability of the expert’s testimony. The three judge panel ultimately upheld the admissibility of the expert testimony and denied the physician’s request for a new trial.

Medical malpractice cases can prove extremely challenging. It is vital to your case that you secure the services of a capable attorney as soon as you become aware of the injury. If you or your newborn suffered a birth injury, contact the experienced attorneys of Levin & Perconti at (312) 332-2872 for a free consultation. These attorneys will work to secure compensation for you and your family.

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