Article Explores Flaws behind Cerebral Palsy Litigation

A private practice neurologist and lawyer, Dr. James C. Johnston currently serves as director of Legal Medicine Consultants, and as a partner in Global Neurology Consultants. Dr. James C. Johnston is also committed to advancing the legal and medical fields through scholarship, including through a recent peer-reviewed article he coauthored, published in the Journal of Child Neurology: ‘Cerebral Palsy Litigation: Change Course or Abandon Ship.’

In the article the authors assert that the majority of cerebral palsy litigation is driven by electronic fetal monitoring, a 40-year practice that lacks scientific support, yields a false positive rate higher than 99 percent, and increases the cesarian section rate with all of the attendant morbidity and mortality from that procedure. Despite its inability to predict cerebral palsy, electronic fetal monitoring continues to be endorsed as an effective practice by professional birth-related organizations around the world.

The authors further explain that electronic fetal monitoring is propagated by trial lawyers who have a monetary interest in using the results of the monitoring to their benefit. According to the article, electronic fetal monitoring reinterpretation in the courtroom has remained widespread, unreliable, and significantly biased.

The article goes on to explore how various legal tactics have failed to reduce cerebral palsy litigation. In conclusion, the authors propose using the Daubert doctrine to eliminate unsound science in the courtroom and thereby reduce the use of electronic fetal monitoring and, with it, the occurrence of cerebral palsy litigation.

The authors Thomas Sartwelle and Dr. James C. Johnston discuss cerebral palsy litigation further in a chapter they contributed to the 9th edition of the American College of Legal Medicine textbook: ‘Legal Medicine and Medical Ethics.’


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