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Placentas in the Courtroom

January 1, 1997

After giving birth recently to a baby with cerebral palsy, a woman in Tarrant County, Tex., felt she had just cause to sue her obstetrician and hospital, claiming that he had caused the brain damage and paralysis by failing to perform a prompt Cesarean section despite ominous fetal heart tracings. Indeed, doctors are often found guilty of negligence in such cases, and together with their hospitals are ordered to pay enormous amounts in damages. But this doctor was lucky. He had saved a valuable piece of exonerating evidence that most other obstetricians routinely toss out-the baby’s placenta.

Laboratory tests on the placenta found a high count of nucleated red blood cells, suggesting that some type of infection had been present. Given these findings, the hospital’s lawyers argued successfully that the infection had caused the cerebral palsy two to three days before the baby was born, making the timing of the C-section irrelevant. “The placenta came in very handy,” says Richard Griffith, the lawyer who represented the doctor. “I would love to see placentas in all cases involving problem deliveries.”

The placenta often holds the clues to a troubled pregnancy and can provide a strong defense in the event of malpractice suits, which occur frequently, says Daniel Dupre, claims supervisor at the Florida Physicians Insurance Co. In fact, malpractice cases, especially those in which parents seek compensation for a botched delivery resulting in a stillborn or brain-damaged baby, have become so common, he says, that “if you’re a practicing obstetrician and you’re not getting sued every two to three years, then you’re not working hard enough.” According to a survey conducted by the American College of Obstetricians and Gynecologists in 1992, nearly 80 percent of U.S. obstetricians have been sued for medical malpractice. For doctors and hospitals, losing one of these cases can cost potentially millions of dollars.

Placental abnormalities can offer critical evidence in such cases when the obstetrician is innocent of wrongdoing. For instance, a blood clot can be shown to have blocked the flow of oxygen to the baby’s brain, causing mental retardation or cerebral palsy. And an abnormally small placenta can impede the transfer of oxygen from mother to fetus. Twins, in fact, are ten times more likely than single babies to get cerebral palsy because their placentas are more often tangled and small.

Because of its potential value, placenta testing has drawn a number of advocates. The College of American Pathologists has recently adopted guidelines recommending that hospitals store placentas from all births for at least three days and immediately test those that look abnormal or come from at-risk babies or mothers. Elsewhere, two of the largest malpractice insurance carriers, St. Paul Fire and Marine Insurance Co. and the Doctors Co., are also urging their clients to test placentas for problem pregnancies. Last year, for example, the Doctors Co. mailed all of its obstetricians posters that said “Think Placenta.”

Still, most hospitals don’t save placentas or test them. “It comes up in every case-do we have a placenta or not?” says Richard Anderson, chair of the board of the Doctors Co., “and it is more the exception than the rule that we have one. It should be just the reverse.”

Opponents contend that many hospitals don’t have enough adequately trained pathologists to institute a placenta testing program, while others are skeptical of the placenta’s legal value. In fact, though often helpful to obstetricians in court, placentas don’t guarantee a victory.

Plaintiffs will often challenge the results of a placenta test by arguing that the material was handled incorrectly and possibly contaminated. They may also argue, legitimately, that a damaged placenta doesn’t always produce a damaged baby. They can even point to cases where a healthy baby was born despite having an abnormally small placenta or one that was infected or inflamed. Although abnormal placentas may be correlated with brain damage, tests cannot conclusively rule out other causes. “Even in the face of scientific evidence from a placenta, juries often decide that a reason needs to be found to compensate for a disabled child,” Anderson says. “And they see hospitals as the deep pockets.”

Perhaps the main reason more hospitals haven’t instituted placenta testing programs is that, despite their many advocates, no one is willing to pay for them. Hospitals are wary of adding to the cost of a delivery. Henry Travers, a pathologist at McKennan Hospital and the Physicians Laboratory, Ltd. in Sioux Falls, S. Dak., and a governor of the College of American Pathologists, estimates that it would cost $50 to store a placenta for three days and $150 to test it, although he notes these figures vary widely depending on the hospital.

Medical Benefits

Moreover, despite the legal benefits, doctor and hospital insurance carriers like the Doctors Co. refuse to pick up part of the tab. “It’s not appropriate for a placenta test to be subsidized by a medical liability insurer,” Anderson says, “because that would undermine the test’s credibility.” Placenta tests should be prized for their medical benefits, not just their legal ones, he says. “One doesn’t want to create the adversarial notion that we’re doing a test in preparation for a potential lawsuit.”

Travers agrees that placental testing can offer enormous potential benefits by alerting doctors to problems in the baby. For example, a pathologist may identify an infection in the placenta before the infant shows symptoms, allowing for earlier treatment. Testing the placenta can also help determine whether a stillbirth or birth defect is likely to recur in subsequent pregnancies.

Similarly, when babies are born missing hands or fingers, their condition is sometimes due to genetic factors, and is therefore likely to recur, but other times it is caused by amniotic bands that can develop in the placenta. The bands wrap around the fetus’s finger or hand and cut off all circulation. Eventually, the limb falls off. Amniotic bands indicate the birth defect is not genetic and is not likely to happen in future pregnancies.
Understanding the reason for a child’s brain damage or death can be a great comfort to parents. In turn, providing parents with a medical explanation may serve to prevent many lawsuits from being filed in the first place. According to Dupre of Florida Physicians Insurance Co., some parents who litigate are just looking for answers.

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