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Attorney Troy Bundy discusses a recent Medical Malpractice Defense involving Shoulder Dystocia

By Troy Bundy to Malpractice Cases of Note


In this segment, Healthcare Matters interviews ALL MD attorney Troy Bundy on a shoulder dystocia medical malpractice case that he defended and what he learned from the outcome.

Bundy is a hiring partner at Hart Wagner LLP in Portland, Ore., where he defends healthcare professionals against claims of malpractice, cyber-liability, HIPAA and DEA investigations, health-related business formation and contract resolution, licensing board matters, billing disputes and privileging issues.

Bundy 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.

Question 5 of 5

Interview was recorded October 14, 2015


Mike Matray: Hello and welcome to Healthcare Matters, where the medical and legal communities come together to discuss healthcare matters. I’m your host, Mike Matray and today’s guest is Troy Bundy. Mr. Bundy is a hiring partner at Hart and Wagner in Portland, Oregon where he has been defending healthcare professionals since he joined the firm in 1996. Welcome to the show, Troy.

Troy Bundy: Thanks, good to be here.

Mike: Right. You were involved in a significant case in Oregon which involved shoulder dystocia. Could you tell us about that case? What made it significant and how it played out?

Troy: It was a case, actually, that I lost. The case played out, typically, as a shoulder dystocia case does, which is the patient went in and delivered a baby, the baby was large and the allegation was that there was a shoulder dystocia encountered, which there was. Maneuvers were employed in order to relieve pressure from the shoulder to prevent the typical injury, which is brachial nerve palsy or brachial plexus injury. The baby ended up with residual problems with his shoulder and arm. I’ve tried a number of those cases. What was unique about this particular case was the fact that the mother had experienced a prior shoulder dystocia and she didn’t know that she had a prior shoulder dystocia.

Mike: How did you discover that she had a prior shoulder dystocia?

Troy: The whole crux of the case was the fact that the documentation of the shoulder dystocia was in the delivery record and the delivery record was part of the clinic file. But the way the clinic worked was, you know, people have more than one child over the years and rather than carrying forward the entire chart, which was essentially converted to an EMR, a new mini-chart would be created for the patient’s new pregnancy so that there wouldn’t be a large chart to deal with all the time. So, the information was there and I saw it in the medical records as did the plaintiff’s attorney, but the doctor didn’t review all of the medical records and when the nurse asked the patient if she had any prior complications associated with previous pregnancies, the mother responded “no”.

So, the case was managed as though there was no prior shoulder dystocia. What was interesting was that the physician who charted a shoulder dystocia, charted a lot of shoulder dystocia. He encountered an extraordinary number of shoulder dystocia in the course of his practice. So, what we were dealing with was what the literature routinely refers to as an over call. Whether or not a shoulder dystocia really occurs is ultimately something that the physician determines at the time of the birth. Obviously there are going to be times when, yeah, that’s a shoulder dystocia, but there are going to be subtler forms that most obstetricians will not refer to as a shoulder dystocia. They just won’t call it that.

That’s really what this was. It was a judgment call that one physician made. The downside of the case was that it was well documented in the chart and ultimately proved to be too much to overcome. The thing that I learned in that case was that this trial tactic, it seems obvious now that I’ve had it occur to me, but one of the things that the plaintiff’s attorney did was he moved to admit the medical records that had been prepared and submitted to my expert for review. And those records were really no different than any of the other records that we had admitted in the case. We didn’t object to the admission of our expert’s file, essentially our portion of the file to be admitted as evidence. So, that was in and nothing really occurred with it and the plaintiff’s attorney didn’t say anything about it until closing argument. Then all of a sudden, in closing argument, the plaintiff’s attorney referred to an ICD-9 code that said “shoulder dystocia” and made an argument that the words shoulder dystocia were included in the file materials that we had. Our provider knew about it and we were somehow hiding the ball and so on and so forth.

The lesson I learned was that whenever we agree to admit an exhibit, even if you don’t talk about the exhibit during the course of the trial, it’s open season and fair game for closing argument. You can make whatever argument you want. However farfetched an argument a plaintiff wants to make about whatever piece of evidence has been admitted, it’s fair game. That left us with trying to respond and explain to the jury, which was basically impossible because evidence had concluded that, “Hey, this is an ICD-9 code. That is something a coder came up with. That is not part or seen in the EMR when our physician was looking at the chart.” So, the lesson I learned was, be very, very careful what you agree to as far as the admission of evidence. Just because something is not discussed during the course of trial and doesn’t come up during the course of trial, that doesn’t preclude the plaintiff or if the defense wants to use it, the defense from making an argument to the jury at the end of trial that the other side can’t legitimately respond to. So, I learned my lesson during that trial about the power of an admission of evidence and whether somebody can create an issue that never existed throughout the course of trial by raising it at the last minute during closing argument.

Mike: Without an opportunity to respond.

Troy: With no opportunity to respond, right.