Birth Injury Case - 14 years later

[Tax Counsel]

I started looking for attorneys again after a hiatus, as life came in between. One question came to mind. Is there a way to access previous birth injury court cases, trials and details around them. I was able to google up some databases but most are criminal and other types of cases. Is there databases, dockets where I can look specifically for birth malpractice cases, with details of case and attorneys involved, particularly in Ohio.

I think you are unlikely to find anything close to a complete database with the kind of information you seek. State trial court records are not usually incorporated into national legal databases because (1) they'd not be of interest to most lawyers, let alone the general public and (2) it would be costly to search each trial court's records. Most trial court cases only establish the result of the lawsuit before them. The create no case law that other courts must follow in the future nor bind any court to the result. You have the challenge, too, that birth injury cases are not all that common and that the vast majority of civil cases are settled and thus do not go to trial. Typically those settlements have clauses that prevent the parties from discussing the details of the settlement with others.

 

[Tax Counsel]

You have access to Lexus Nexus? or something similar can. Almost all attorneys have access to those systems.

Even LexisNexis and Westlaw (by far the two biggest legal information services used by lawyers) don't have much state trial court information.

Also, neither of those services are cheap, and without a subscription to the relevant database(s) searching these services on demand is particularly costly. If one doesn't know how to do the searches effectively and efficiently that person ends up paying a lot for results that are not useful.

 

[welkin]

I started looking for attorneys again after a hiatus, as life came in between. One question came to mind. Is there a way to access previous birth injury court cases, trials and details around them. I was able to google up some databases but most are criminal and other types of cases. Is there databases, dockets where I can look specifically for birth malpractice cases, with details of case and attorneys involved, particularly in Ohio.

I just used Google Scholar, selected all state courts, and used birth defects malpractice for the search and came up with almost 3,000 cases. I added in Federal courts and the search came back with almost 5,000 cases. And it is free.

 

[Tax Counsel]

I did the search welkin did and came up with thousandss of appellate decisions, most of which won't be useful to you because they don't cover the relevant state's law, which is likely Ohio law as the alleged malpractice occurred in Ohio and that is where the defendants are likely still located (assuming they are still even alive). I'd suggest you start by searching Ohio cases to eliminate all the decisions in other states. The search term will need to be a lot more specific, too, as the one welkin used pulls up all cases that match the terms birth, defects, or malpractice, which is too broad and will give you a lot of cases that are not on point. Look at how Google search works to find out how to get the search to look for only those cases where all three words appear close together. That's your best chance of narrowing the search down and getting far fewer cases that are simply not at all relevant.

Additionally, there is the problem of determining whether the cases that are applicable are still good law. Google scholar does not answer that question. It does take some skill and experience to effectively use case law. Apellate decisions won't get you the kind of trial court outcomes that you seem to want. They are, however, the cases that become case law that the trial courts have to follow. And that's why attorneys use them and why the services attorneys use for legal research focus on appellate cases and not trial court cases.

And before doing that, you really need to determine if the statute of limitations is still open. After 14 years it likely won't be. Finding that out starts by looking at the state statute that sets out the limitations on actions. It's probably the Ohio statute of limitations that applies. The fact that you've known about this potential claim since at least the first time you posted here in January of last year and apparently have not yet filed a lawsuit may be a huge problem. In order to be able to sue after 14 years, the state statute of limitations would have to include a discovery rule, you'd not have to be past the state's statute of repose (as army judge mentioned earlier), and you have to act promptly after discovery of your claim to file the lawsuit. You've known about this particular claim since at least January of last year when you first posted here and apparently have not yet filed a lawsuit. That delay now of about 20 months with no action yet taken may end up barring a claim even if the state applies a discovery rule that would extend the statute of limitations out that far and even if the statute of repose would allow that claim. The statute of repose cuts off all claims after a certain period of time even if there is a discovery rule and discovery is not made until after the statute of repose is closed. With a discovery rule one has to act promptly upon discovering that there is a claim to pursue, not sit on it for a year or two more. It would be unusual for a statute of repose to be 14 years or longer, and your delay may have passed the additional time a discovery rule would give you. I don't see a clear option for federal court here, and even if there is, the statute of limitations that would apply is the relevant state statute of limitations. Going to federal court won't get you around the state's limitations.

Ultimately, you are best served by consulting an Ohio personal injury/malpractice lawyer. Typically such consultations are free and is a much faster, and surer way to get the information on whether you've got a viable case to pursue. Generally initial consultations on PI/malpractice cases are free. Even if it were not free, paying a few hundred dollars to find out if you are still within the statute of limitations and have a viable claim is much more effective than spending many, many hours digging through hundreds or thousands of cases most of which won't be on point and may not even be good law anymore. You also need to know how to analyze court decisions to know if the case really answers questions that apply to your case. You can save struggling with all that by consulting a lawyer who already knows the applicable law and can tell you in a single meeting if there is something you may pursue now after all these years.

 

[Zigner]

And before doing that, you really need to determine if the statute of limitations is still open. After 14 years it likely won't be.

Since mom is suing on behalf of the son, this would seem to apply:
Section 2305.16 - Ohio Revised Code | Ohio Laws

It would appear that the statute of limitations is tolled until the person is no longer under the age of majority and no longer of unsound mind. In the OP's case, it doesn't sound like she has to worry about the statute of limitations, although the longer she waits, the more difficult things become. As I mentioned several times at the beginning of this thread, mom desperately needs to talk to an attorney.

I am open to correction if I'm misinterpreting something.

EDIT: The statute of repose has the same restriction in Ohio code.
"
(C) Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of the Revised Code, and except as provided in division (D) of this section, both of the following apply:

(1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.

(2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.
"

 

[Tax Counsel]

Since mom is suing on behalf of the son, this would seem to apply:
Section 2305.16 - Ohio Revised Code | Ohio Laws

It would appear that the statute of limitations is tolled until the person is no longer under the age of majority and no longer of unsound mind

That does appear to be the case if the disabled person is under age of majority, which is age 18 in all states but 2 states, neither of which is Ohio. But as you point out, the longer the plaintiff waits the harder the lawsuit will be as available evidence is lost to time, memories fade, and witnesses die or otherwise become unavailable. Birth defects happen even when doctors and medical staff do everything right. Getting evidence to prove there was malpractice may be hard to get after all this time. The first thing the OP needs to do is consult an Ohio attorney and see if there is reasonable shot to win this. That should have been when the question was asked nearly two years ago. Civil lawsuits are not like wine, they don't get better as they age.

 

[Dinesh]

Picking this back up, after 2 years now. My boys are 16 and 14, both brain damaged at birth by the same obstetrician. I have still been unsuccessful trying to find a lawyer, but I have found out why. Apparently the doctors that do the rounds in courts giving paid expert opinion in malpractice cases (its a small constant set of folks) , have beaten down such cases in the past and will not go back contradicting themselves in the light of new information.
But over the years, I have become enough of an expert myself, so much that I wrote a book about it ( https://www.amazon.com/Autism-Answers-Action-Malpractice-Development/dp/1736604708 ).
One Ohio lawyer that came very close to taking up the case in 2022, expressed frustration over medical experts vis a vis the facts I was quoting, even suggested that I should consider going on my own if I cant convince any national level lawyers to take up the case. He said you can call yourself the expert and just file it.
So I am planning to file this myself at this point. I now live in Texas, but the malpractice incidents on the 2 boys took place in Ohio. I have been reading up Pro Se filing books. Planning to file in Federal circuit court in Columbus Ohio. I hear that federal cases are faster than state, although they need unanimous jury decisions. I will also not be subjected to compensation limits of Ohio.
I have enough hard evidence to take down any opposition arguments in front of a jury and probably only need written depositions. I plan to get the evidence of the protocols in place from the hospital during discovery.
Appreciate any thoughts on the following -
1)Any way I can find out average case times in Ohio federal courts.
2)How are depositions handled in a jury trial. Are videos presented to jury, are they just expert Q&A with cross questions presented in written form.
Appreciate your valuable insights, on this and anything else pertinent. Your insights so far have helped greatly in educating me, now I need them even more, with this idea of going pro-se.

 

[zddoodah]

Any way I can find out average case times in Ohio federal courts.

Not sure off the top of my head where to find it, but the federal court system publishes statistics, on a district-by-district basis, regarding things like average time from filing to disposition. My recollection of the last time I looked is that most districts were in the 15-26 month range. I wouldn't regard that as a particularly useful bit of information.

How are depositions handled in a jury trial. Are videos presented to jury, are they just expert Q&A with cross questions presented in written form.

Deposition testimony is sometimes used at trial. Sometimes video from a deposition may be shown; sometimes the transcript is read. I don't really understand the last bit about experts, but experts almost always testify live (although their deposition testimony could be used for impeachment purposes).

 

[Redemptionman]

I am not sure why you would want to file federal? If you could get jurisdiction and not have them transfer the case to federal court this would be better for you. Federal juries typically award less money, have harder jurors, and depending on what companies or entities are paying or lobbying for that federal judge they tend to be tough as well especially with you going Pro Se.

 

[Dinesh]

I am not sure why you would want to file federal? If you could get jurisdiction and not have them transfer the case to federal court this would be better for you. Federal juries typically award less money, have harder jurors, and depending on what companies or entities are paying or lobbying for that federal judge they tend to be tough as well especially with you going Pro Se.

Thanks for your response @Redemptionman. I believe Ohio, like many other states has low caps on Malpractice claims which is why attorneys wont take up these cases. Here's a lawyer website showing state-wise malpractise claim limits. Got to scroll down for Ohio.
Malpractice Damage Caps in All 50 States | 2022 Update
In my case my children wont be able to take up a job and earn a living. Their true potential that could have been, can never be estimated. The money they would have made over a 40 year career would have easily run into multiple millions. I believe the Fed courts dont have caps ?
I am hoping to use this - Title 28 U.S.C. § 1332(a)(1) [A lawsuit between citizens of different states where the matter in controversy exceeds $75,000.] to move to federal jurisdiction.
Another interesting fact is that my obstetrician, actually ran for state congress in 2022 and won! So , I am hoping there might be a legal conflict of interest style provision that allows for me to go to fed courts. Anyways it sort of makes for a high profile lawsuit for sure.

 

[zddoodah]

I believe Ohio, like many other states has low caps on Malpractice claims. . . . I believe the Fed courts dont have caps ?

That is incorrect. In a diversity case (which is what cases under 28 U.S.C. section 1332 are called), the court will apply the substantive law of the state where it is located.

my obstetrician, actually ran for state congress in 2022 and won! So , I am hoping there might be a legal conflict of interest style provision that allows for me to go to fed courts.

That's irrelevant. If the federal court has diversity jurisdiction (all plaintiffs are citizens of different states that all defendants and the amount in controversy exceeds $75k), then you have a choice as plaintiff. There are pros and cons to each. I don't entirely agree with the absolute statements someone else made about federal courts, but I do agree that federal judges tend to be less lenient to pro se plaintiffs. Beyond that, information about the specific counties where you might file or the two federal districts in Ohio might be helpful, but I don't think generalizations are helpful.

 

[cbg]

It's a long thread so I may have missed it, but did you ever speak with a med-mal lawyer and get an expert opinion on the extent of the malpractice? You could have the best case in the world, but without that kind of testimony to back you up your odds of winning are slim at best. For your own sake and the sake of your boys, please consult with one or more if you haven't already.

 

[Dinesh]

It's a long thread so I may have missed it, but did you ever speak with a med-mal lawyer and get an expert opinion on the extent of the malpractice? You could have the best case in the world, but without that kind of testimony to back you up your odds of winning are slim at best. For your own sake and the sake of your boys, please consult with one or more if you haven't already.

Yeah, I have consulted med mal lawyers. The entire medico legal system / apparatus is geared towards hypoxic injury at birth, and they dont accept the possibility of traumatic injury. I know its a reality and the experts will really be committing perjury if they go against the FDA approved pitocin labeling and American College of Obstetrics and Gynecology (ACOG)guidelines. Obviously those guidelines exist for a reason. The doctors who frequent the medical expert legal circles have been abusing their privilege against less knowledgeable opponents, but they will not be able to contradict the Pitocin drug label and ACOG guidelines that I will be quoting.
That brings me to another question, I am hoping to get the official Acog guidelines, from the hospital that I will be naming as one of the defendants in the discovery stage. That should be possible correct ?

 

[Tax Counsel]

I know its a reality and the experts will really be committing perjury if they go against the FDA approved pitocin labeling and American College of Obstetrics and Gynecology (ACOG)guidelines.

Those guidelines are just that, guidelines. That leaves open the possibility that what the doctor did is still within the bounds of medical practice. In order to prove perjury you have to more than just show the statement he made on the stand was untrue and that the doctor knew at the time he testified that statement was not true.

The doctors who frequent the medical expert legal circles have been abusing their privilege against less knowledgeable opponents, but they will not be able to contradict the Pitocin drug label and ACOG guidelines that I will be quoting.

You won't be able to just stand in court and read off the guidelines. You'll need testimony from an expert that the guidelines are generally viewed by the medical community as the way things must be done and that the doctor's failure to do it that way was most likely the cause of the injuries. That testimony will not be cheap, and if you don't know the rules of evidence for the court you're going to litigate you might have problems.

For example, in a federal district court case I was involved in on behalf of the government, the other side wanted to have a tax protest accountant that they flew out from Oregon to NY testify how I (when I was a revenue officer working his case) didn't properly post the taxpayers payments, that the federal tax at issue was unconstitutional, etc. While the Department of Justice (DOJ) attorney I was paired up with was looking forward to shredding her tax protest testimony, I pointed out what I thought was a better way to deal with her. The lawyer had failed to provide an expert report before the hearing as the federal rules of evidence require. That meant the witness could not testify. After some sharp questions from the judge to the taxpayer's position on the expert witness matter the judge barred her from testifying. The taxpayer's case fell apart because it was all based around the testimony of this "expert". Once she couldn't testify, the taxpayer had nothing else to present to support his client's position.

I mention this episode to highlight that in federal court not following a basic rule can result in serious damage to your case. You'll be expected to know the rules of evidence and procedure for federal court if you want to litigate it pro se in that forum you need to know those rules as well as an attorney does if you don't want to be blind sided. At least in my state the state court judges give pro se litigants a bit more latitude than the federal judges.

Another interesting fact is that my obstetrician, actually ran for state congress in 2022 and won! So , I am hoping there might be a legal conflict of interest style provision that allows for me to go to fed courts.

That the doctor who you plan to sue is now a member of the state legislature is not a conflict of interest and even it was a conflict the resolution to that is not getting the case changed to federal court. Instead, another state court judge would be assigned.

 

[Redemptionman]

The Judges in Federal court tend to be a lot more difficult, the juries a lot more difficult. Pain and Suffering nor wages will be in any of your calculations. Focus on medical and long term care for your children. Federal judges tend to be bought and paid for by medical organizations, health insurance companies, and large hospitals. I am not saying all are but you can look up what entities donate money to which federal courts and what that is used for. Usually it keeps a judge in office and the court rulings favorable to them. You have an uphill battle in Federal court and I am saying right now that without a skilled personal injury attorney you more than likely will have the case dismissed and it could be with prejudice. You need to proceed carefully.

 

[doucar]

The Judges in Federal court tend to be a lot more difficult, the juries a lot more difficult. Pain and Suffering nor wages will be in any of your calculations. Focus on medical and long term care for your children. Federal judges tend to be bought and paid for by medical organizations, health insurance companies, and large hospitals. I am not saying all are but you can look up what entities donate money to which federal courts and what that is used for. Usually it keeps a judge in office and the court rulings favorable to them. You have an uphill battle in Federal court and I am saying right now that without a skilled personal injury attorney you more than likely will have the case dismissed and it could be with prejudice. You need to proceed carefully.

Federal judges are appointed for life, not elected so they have no need for campaign donations or would they be beholden to any interest group. No money is donated to federal courts.

 

[Redemptionman]

Federal judges are appointed for life, not elected so they have no need for campaign donations or would they be beholden to any interest group. No money is donated to federal courts.

there are ways around everything.

Billionaire-Backed Conservative Legal Groups Are Paying for Judges' Luxury Vacations

money buys influence, influence buys court rulings

 

[Dinesh]

Those guidelines are just that, guidelines. That leaves open the possibility that what the doctor did is still within the bounds of medical practice. In order to prove perjury you have to more than just show the statement he made on the stand was untrue and that the doctor knew at the time he testified that statement was not true.

Thanks for your response. Its actually a labor induction protocol in the hospital based on acog.org guidelines which are in turn based on the FDA approved drug package insert. I have heard "not following protocol is not enough proof of causation". But the protocol itself is in place only to avoid brain damage, and that's what has been caused. And being traumatic brain damage, it happens in every case, whenever this labelled drug contraindication happens, it is not some drug chemical reaction someone is having, so its not subjective, its mechanical force trauma damage.

The hope was, I can convince an impartial jury with it, but getting up to a trial without an expert outside of myself, and without a lawyer is going to be the challenge, given the reliance of courts on "experts". I expect they will try everything they can, to get it dismissed before reaching a trial. Insurance companies and hospitals will definitely put their full weight behind it.

It is one of those things where initially, everybody did it and later realized what was happening. The protocols were then put in place to avoid brain damage and obviously, our obstetrician didnt get the memo, although the hospital nurses knew it and tried to stop it. But before 2014 (affordable care act) nurses were not allowed medical advice and were only dropping hints that I didnt pick up on. I think the obstetrician believed the ACOG were wrong and her contrary beliefs were right. I know the history of the drug and everything, have MRI scan proof, so I know I am right, its a matter of overcoming this establishment.

 

[Redemptionman]

Insurance companies and hospitals will definitely put their full weight behind it.
But before 2014 (affordable care act) nurses were not allowed medical advice and were only dropping hints that I didnt pick up on. I think the obstetrician believed the ACOG were wrong and her contrary beliefs were right. I know the history of the drug and everything, have MRI scan proof, so I know I am right, its a matter of overcoming this establishment.

The insurance companies, hospitals, and pharmaceutical companies basically write the law through their practices and caps. Your best bet would be to get to some sort of mediation but I don't believe you will convince them to go there without legal representation. The caps have basically barred a lot of cases from ever making it to the court house steps. The ACA or O'Bama Care as it is also known as was the biggest fraud to ever be forced upon society. Medicaid and Medicare basically tripled over night and the middle class pays for the increase. Basically only 2 main insurance companies 10 years post ACA and they control everything making medical providers write off billions in unpaid bills. It is better to be vastly poor in America then you get everything paid for by big brother. If they actually wanted to offer free healthcare then it should have been free for everyone not just certain groups.

I would think there would be some attorney somewhere willing to know they could get caps and reduce expert costs. The main thing is the same experts usually provide testimony among various cases so they know who they are and the appropriate defenses for them.

 

[Dinesh]

Thanks @Redemptionman , I totally agree. So, I am hoping I can get our Pedeatrician at that time who examined my boy right after birth and was totally upset and angry at what had been done, to testify in court. He's been retired for a while and probably wouldnt mind speaking his mind and the truth as it is. Would that count as expert evidence ?
Also, if he is unwilling to come, can he be subpoenaed and asked to provide a testimony? Would that count as expert evidence?