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ALL MD Attorney Sam Leib Discusses an OB Malpractice Claim he Recently Defended (Full Interview)

By Samuel Leib to Malpractice Cases of Note


In this episode, Healthcare Matters interviews ALL MD attorney Sam Leib discusses an obstetric malpractice claim he recently defended and the lessons that can be learned from it.

Leib is the deputy regional managing partner for the Milwaukee office of Wilson Elsner, maintaining a distinguished general litigation practice representing clients in matters involving medical malpractice, oral surgical and dental malpractice and long-term care facilities as well as related business transactions and disputes nationwide.

Leib is a charter member of the Association of Liability Lawyers in Medical Defense (ALL MD), a nationwide organization that connects healthcare providers with attorneys who specialize in medical malpractice defense.

Interview was recorded October 12, 2015


Mike Matray: Hello and welcome to Healthcare Matters, where the medical and legal communities come to discuss healthcare matters. My name’s Mike Matray and I’m your host. Today’s guest is Samuel Leib. Mr. Leib is the Deputy Regional Managing Partner for the Milwaukee office of Wilson Elser, maintaining a distinguished general litigation practice, representing clients in matters involving medical malpractice, oral surgical and dental malpractice, as well as long term care facilities and related business transactions and disputes nationwide. Welcome Mr. Leib.

Samuel Leib: Hey. Thanks for having me.

Mike: Mr. Leib came here today to discuss an obstetric malpractice case he recently worked on and I’ll let him introduce the case to you.

Sam: Yes. Thanks very much. This is a case involving a shoulder dystocia, which is where the shoulder gets impinged as the baby comes down the birth canal and dealing with a claim that this particular delivery led to a permanent brachial plexus injury. The brachial plexus are a series of nerves that leave the spine from about C-5 to T-1 and the claim is that the fashion in which the birth is done puts excessive or too much stretch on the brachial plexus nerves causing injury to them and permanent injury. Most of the brachial plexus injury cases claim a permanent injury.

Mike: What makes this case unique?

Sam: Well, it was unique because it had claims of both negligence, which would be roughly defined as a breach of the standard of care in the actual performance of the delivery, and additionally it had claims of a failure to obtain informed consent in performing the vaginal delivery. So it was a very interesting case and both issues were tried. It took two trials, actually…

Mike: Okay.

Sam: …to resolve both issues.

Mike: Was that because there wasn’t an unanimous verdict or does that operate differently?

Sam: No. What happened is, in the first trial there was a finding of no negligence relating to the physician, but there was a finding that informed consent had not been properly obtained. And then on motions after verdict, the judge determined that the way the question was phrased on the verdict that was submitted to the jury, the question was improper, the way it was phrased. And the essence of that issue was that when you do a medical procedure, obstetrics or otherwise; when you do a medical procedure, you need to obtain informed consent for the procedure that you do.

Now that may include information as to the alternative modes of therapies or treatments, what else is available in the likelihood of success of other things. But in doing the thing that you did, the procedure that you did, did you obtain informed consent for that? And it’s not … the question properly submitted to the jury does not include a question whether or not there was informed consent obtained for other procedures that you didn’t do, such as C-section, such as operative delivery, forceps or vacuum or any other style.

The informed consent needs to be obtained for the procedure that you do. So the court ended up agreeing that the question was improperly phrased as it was submitted to the jury and the court ordered a new trial on the informed consent. And the new trial took place and the question was properly phrased regarding the second trial and the defense prevailed on that.

Mike: Okay. So on the first one … Well, why don’t you talk to me more about how these were separated? Did the first verdict stand in any sense or was it a completely new trial the second time around for both claims?

Sam: No. Actually, the first trial stayed in all regards, accepting the questions relating to informed consent.

Mike: Okay.

Sam: So the first trial, when the jury found that there was no negligence, that was maintained. There was no negligence and that was never challenged by the plaintiffs or anybody else. So when the second trial came about, it was exclusively related to informed consent and whether or not the doctor had advised the patient of the type of information that a reasonable patient would want to know.

There’s two distinct types of informed consent laws in the United States. One is where you look at the informed consent from a patient’s perspective and the question simply is, “Did the physician give the patient the information that a reasonable patient would want to know?” That’s the reasonable patient standard.

And then there are many jurisdictions and actually, Wisconsin is one of them the law changed within the last couple of years. There is what’s referred to as the reasonable physician standard. You don’t look at informed consent from the perspective of the patient, you look at it from the perspective of the doctor. And the question then becomes whether or not the doctor exercised the appropriate standard of care in informing the patient of the alternative modes of therapies and treatments, and the risks and benefits.

So two very distinct vantage points and the reasonable patient standard does not require expert testimony. In fact, most jurisdictions do not allow expert testimony on it because it is clearly within the scope of a jury’s abilities without expert submission. The second standard does require expert testimony and the plaintiffs are required to have an expert to tell the jury what is the standard of care of a reasonable physician, regarding giving information for informed consent.

So it was a very interesting trial, very unique to the extent that this was the sole issue that was tried in the second trial. And within the context of Wisconsin law, it’s interesting because in Wisconsin, the standard just changed within the last couple of years from reasonable patient standard to the reasonable physician standard.

Mike: Do you know what the majority of states use to define? Is it the physician standard or the patient standard?

Sam: You know, I think I don’t know what the majority is. I haven’t surveyed the states but I can tell you that a lot of them use the physician standard and I know others use the reasonable patient standard.

Mike: Let’s say you were conducting a risk management seminar for physician clients of yours, what would you recommend as best practices for obtaining informed consent in regard to potential claims of medical liability?

Sam: Great question. This is a potential claim in all malpractice cases and other healthcare provider cases. So what would be best practices? One is clearly to do the right thing. And for the physician or other who is involved to give the information that reasonable physicians give if you’re using the physician standard or what they think a reasonable patient would want to know. The resources available to inform the patient currently are like no other time in history, everything from just general internet, Googling, websites, you can go online and actually obtain illustrations or animations of particular procedures.

It’s a fine line between overwhelming the patient with information that may frighten them or confuse them. But the resources are tremendous at this point. So giving them the necessary information by whatever source is necessary, whether it’s showing them a video or just talking with them and giving them websites. And then a lot of venues, healthcare professionals provide pamphlets and a lot of specialty groups have pamphlets available.

And this is another opportunity. A lot of times, when people are in a doctor’s office, they’re not able to listen as well as maybe they would like, so to give them something that they could hold in their hand or something that they could go on the internet and locate when they get home. These are tremendously helpful tools and especially for physicians. But the secondary need is to document and to make sure that the records reflect all that was given. You could have a check box, pamphlet given or conceivably, you could have some check box that they actually visited a website, actually saw an illustration.

I know a lot of physicians, especially in the orthopedic realm, use models. And they will go over a model. And just to have a written record saying, model of the pelvis reviewed or this particular illustration reviewed.
And clearly all informed consent dialogues should include questions that are asked by the patient and the answers that are given. So I would say first of all, clearly to do the act and secondarily, to make sure that it’s well documented as to what you did.

Mike: You discussed how modern technology can really help with acquiring informed consent from a patient. How has modern technology changed the doctor’s responsibility as far as keeping a medical record with that informed consent? Do you have best practices that you would recommend for obtaining informed consent and making sure it’s illustrated within the electronic health record?

Sam: Clearly the electronic health record, because it has things like pull down menus and conceivably other sources that you can access right when you’re in the office with the patient, such as going to a particular site either intranet within the institution or outside of the institution and identifying, here’s what we’re going to be doing.

You’ll note that for example, in this case we have an estimated fetal weight of the fetus at eight to nine pounds. That’s a large baby and my anticipation is that there shouldn’t be a problem but shoulder dystocia is a condition that can happen in any type of birth. Let me show you what that entails. And again, I think you have to balance the patient that you’re interacting with and the reasonable concern between giving too much information over flooding them with information or creating concern that, in perspective, would overwhelm them.

So with the resources that are available and with the electronic medical records, the ability to check a box, or even pull down a menu, or note within the electronic medical record that a model was shown, or illustration or diagram was shown; that could go a long way, especially from a risk management point of view, of documenting the record and knowing that 10 years later and sometimes with obstetrical cases, we see these cases come very much downstream.

Mike: Okay.

Sam: And when you see the passage of time, as those years click off, that the documentation becomes even more important. And to retain it, and to retain it within the system of the institution is obviously important.

Mike: Like the old adage that if it isn’t in the medical record, it didn’t happen.

Sam: We hear that a lot and it’s really a cliché that in many regards is just not truthful. That would be like saying, “If it is in the medical records, then it did happen.” And it can go either way. The most important thing is to get the patient the care that they need and having done that, the next important thing on the agenda is to make sure things are well documented.

Mike: Well, Mr. Leib, I want to thank you for coming on Healthcare Matters. It’s been an informative experience and I hope you come back soon.

Sam: Yeah. Well, thanks very much for having me.

Mike: Absolutely.