Defendant’s “Junk Science” Argument Thrown Out by New York Court in Erb’s Palsy Case



The one quality that I admire most in the top trial lawyers that I know is their dedication to helping others. I have been fortunate to have worked with many attorneys who possess this personal characteristic. And I can always just “sense it” whenever I am introduced to someone new who possesses this trait. For this reason, I am extremely honored to have been introduced to Mark R. Bower, a top trial lawyer from New York City. Mr. Bower not only has over 40 years of experience as a medical malpractice trial lawyer, he has also gained national recognition for his work in helping people and their families who have been injured by medical malpractice. Mark is also a prolific writer who is on the Editorial Advisory Board of the Medical Liability Reporter and is a Contributing Editor of the New York State Trial Lawyers Quarterly. The information in this article is based upon what Mark Bower published concerning a recent opinion that threw out a “junk science” defense which tried to claim that a child’s permanent neurologic injury was caused by the natural “forces of labor”.

Admissibility of Expert Testimony in Medical Malpractice Cases:

As a New York Birth Trauma Lawyer, I’m well aware of how medical malpractice cases often involve technical arguments about whether care that was provided did or did not meet specific standards of reasonableness.  As a result, medical experts are required to explain how certain actions may have fallen below that level of care.  Unfortunately, in an attempt to get cases thrown out of court, many defendants have attempted to undermine the opinions made by the plaintiffs’s experts.  Judges act as “gatekeepers” in these cases, deciding whether an opinion of a medical expert can or cannot be heard by a jury.

baby's arms

New York follows the Frye standard for admissibility of expert witnesses.  According to the U.S. Supreme Court ruling in Frye, evidence resulting from scientific tests cannot be admitted as evidence at trial unless the test has gained “general acceptance” as reliable by the relevant scientific community.

As a New York City medical malpractice attorney, I have seen how these attacks are made against plaintiffs’ witnesses much more often than on defense expert witnesses.  However, that may be changing.  Earlier this year, for the first time, the Appellate Division found that an opinion offered by an expert witness for the defense in a medical malpractice case failed to meet the requirements outlined in Frye, and therefore could not be heard and used in the lawsuit.

This recent New York Appellate Division case, Muhammad v. Fitzpatrick, involves a child that had sustained an Erb’s Palsy.  Erb’s Palsy is a medical condition caused when a baby’s shoulder is caught in the birth canal during delivery and the doctor pulls on the baby’s head to dislodge it.  The pulling results in the nerves in the brachial plexus, which come off of the spine in the back of the baby’s head and run down through each arm, to be stretched or torn.  This brachial plexus nerve injury, called an Erb’s Palsy, causes the newborn child’s to be disabled and is usually apparent at the time of birth or soon after.

baby's brachial plexus nerve roots

For over 100 years it was accepted that this action — pulling on the baby’s head or neck to get the shoulder out — is the cause an Erb’s Palsy.

However, about 20 years ago a group of obstetricians (in an effort to avoid liability) started claiming that Erb’s Palsy was instead the result of the “natural forces of labor.”  They tried to shift the blame away from the doctor’s conduct and on to a random force that no one could control.  This small group of doctors pushed this new “theory” particularly hard, even without solid scientific research to back it up.  They also began traveling around the country testifying about it in court cases on behalf of medical malpractice insurance companies.  That practice has continued through today.

In the Muhammad case, the same “forces of nature” argument was made by the defense where a patient, Belinda Muhammad, sought accountability for the injuries suffered by her infant daughter. Fortunately, the Appellate Division for the Fourth Judicial Department of New York ruled that the “natural forces of labor” defense argument did not meet the Frye standard for admissibility of scientific evidence.  The court said that it was a novel scientific theory and the defense failed to rebut the plaintiff’s arguments that it is not generally accepted in the relevant medical community.  The court further determined that the defense did not meet the general and specific causation requirements linking the injuries to this “natural forces” event.

This case is an important one, not only for getting rid of a patently “junk science” defense argument, but as a reaffirmation that fairness must reign in medical malpractice cases.  It was a great decision that will start to level the playing field for all those harmed by the misconduct of medical professionals.  It is also a positive development for all medical patients in our community, because doctors will more often be held accountable when their malpractice causes harm that should otherwise be prevented.

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ER physician “doctors” patient’s chart

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