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Brachial Plexus Injury: Midwife Claim Rulings

Thursday, September 7, 2017   (0 Comments)
Posted by: Tom Jensen
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Midwife delivered baby born with avulsion and rupture damage to five nerve roots in his brachial plexus causing pain and limited arm use. Midwife's experts claimed natural forces of labor - not the midwife's technique - caused the injury. Trial court allowed NFOL opinion as well as biomechanical engineer opinion on forces of labor. Defense verdict followed. In L.M. v. Dussault, 2017 WL 3701706 (Wash. App. Aug. 28, 2017) the court affirmed the evidentiary rulings. The Frye test did not require exclusion of NFOL testimony, even though the theory is "imperfect" just like "any other in science." Much peer-reviewed evidence showed the NFOL theory was generally accepted, that intrauterine forces can cause brachial plexus injuries. It could be challenged on cross-examination. The court also rejected the challenge to the biomechanical engineer's testimony. It was not necessary for the engineer also to be a medical doctor. He was qualified under Rule 702 as having training in a related field. His opinion that "the maximum possible force in this accident was not enough to injure a person" was not a medical opinion because "it includes no opinion about the injured person's 'symptoms or possible diagnosis from those symptoms.'" This was not causation opinion as to the patient at bar.

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