In 2003 the American College of Obstetrics and Gynecologists ("ACOG") assembled a task force to review and analyze available literature on the subject of neonatal brain damage and publish its findings in a comprehensive report.
The result was the ACOG report entitled Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology (the "ACOG Monograph"). The main crux of the ACOG Monograph is that the most infant brain injuries are not the result of events during labor and delivery, but rather attributable to abnormalities during pregnancy. The ACOG Monograph is now widely recognized as a self-serving effort to defend Obstetricians against mounting legal claims that their negligence during childbirth often causes cerebral palsy. Doctors and their defense counsel routinely use the ACOG Monograph as a defensive shield against malpractice claims in virtually every birth injury case. Once admitted into evidence, defense counsel presents the ACOG Monograph as some sort of authoritative guideline for establishing whether a brain injury was the result of medical negligence.
So here is how this plays out in oxygen deprivation birth injury cases. The defendant's medical experts intend to testify that the ACOG Monograph establishes four "essential criteria" to establish a hypoxic-ischemic injury ("HIE") or cerebral palsy in newborn infants. The defense lawyers will try to admit this tort reform document as a way to diagnose whether the child suffered antepartum injuries long before childbirth.
But the sole purpose of the ACOG Monograph is to create a defensive safe harbor for negligent doctors. For this reason, plaintiff's counsel in a birth injury case should always move to exclude the ACOG Monograph from evidence. Set forth below is a step-by-step outline for presenting the most effective argument for excluding the ACOG Monograph from evidence.(1) Make Sure the Judge Understands That ACOG is an Industry Lobbyist and not a Medical Research Organization
Any effort to exclude the ACOG Monograph from evidence should start by enlightening the judge about what ACOG really is. ACOG's name is highly misleading because is suggests that ACOG is an educational/research organization like the American Board of Obstetrics and Gynecology (ABOG). Even the acronyms ACOG and ABOG are confusingly similar, but the 2 organizations are completely different. ABOG is the national non-profit organization that board certifies OB-GYN doctors; defines practice standards; and facilitates research and educational advancement in obstetrics and gynecology. At first glance, ACOG may seem to have a similar level of authority. An unfamiliar judge might even assume confuse ACOG and ABOG. The court needs to understand that ACOG is essentially a political lobbying organization for the OB-GYN industry. ACOG is an industry group for OB/GYNs and it is one of the leading lobbyists for medical malpractice tort reform. The ACOG even has its own political action committee, Ob-GynPAC, which spends millions each year on federal lobbying efforts in support of tort reform.
Aside from its somewhat misleading name, ACOG makes no effort to hide its real purpose. The ACOG website makes it very clear that the organizations primary (if not only) purpose is to advance the political agenda of OB/GYN membership. ACOG is not a public-interest organization focused on education, research, and professional standards. Highlighting this fact is a key first step to discrediting the ACOG Monograph and other ACOG publications.(2) The ACOG Monograph is Inherently Biased and not Scientifically Reliable
To be admissible in evidence, materials such as the ACOG Monograph must pass a quality control test under the well-known Daubert rule. To pass this test the evidence must be based on independent, reliable scientific methodology. This argument should begin by highlighting the fact that ACOG is not an independent, authoritative source. ACOG is a political lobbyist and, therefore, the Monograph and any other "studies" or reports published by ACOG should not be considered authoritative.
There is also some specific evidence showing that the ACOG Monograph is basically just a tort reform effort that is presented as medical science. Soon after the ACOG Monograph was first published in 2003, ACOG members actually admitted that the report was designed for litigation, not medicine. In 2004, ACOG's former president Dr. Franklin Miller admitted under oath that the real purpose of the ACOG Monograph was to defend OB/GYNs from malpractice claims:
Q. But your - your point was - the reason you were developing it, or stated reason, was to defendant lawsuits?
A. Well, I thought that - that we were in an area where the - where were being sued for reasons that we - over which we had no control. And - in a high percentage of the time. And so, yes, that's - that was one of the area - one of the things I wanted to address. And I - and I - and I will stand by that.
Deposition of Dr. Franklin Carl Miller, July 22, 2004 at p. 46, lines 14-25. Miller v. Dacus, et al., (U.S. Dist. Ct., W. Tenn - Case No. 03-2701 M1 V.
The ACOG Monograph does not reflect the accepted knowledge and beliefs of the relevant medical community. Rather the ACOG Monograph was deliberately created by an OB/GYN advocacy group for the sole purpose of protecting its membership from malpractice claims. The ACOG Monograph is an inherently biased and unreliable report that should not be admissible as evidence under the Daubert rule.(3) Relevant Case Law
Unfortunately, there is currently no reported opinion that specifically addresses the admissibility of the ACOG Monograph. The admissibility of the ACOG Monograph as a reliable scientific report has been challenged in numerous cases, but no citable written opinions have been generated. There are, however, some useful analogous cases on the admissibility of questionable medical literature. In 1st of America Bank, N.A. v. United States, 752 F. Supp. 764 (E.D. Mich. 1990) several expert witnesses for the defense relied on criteria in ACOG Bulletin 163 (a predecessor to the ACOG Monograph) regarding causation. The court expressed doubts about the credibility of this testimony and specifically the ACOG criteria that it relied on because the criteria appeared to make causation impossible to establish:
[t]he Court finds these criteria of questionable value in litigation. If a court held a plaintiff to these criteria before finding causation as a result of perinatal asphyxia, plaintiff would be required to do more than demonstrate causation by a preponderance of the evidence. Plaintiff's proof would have to be essentially conclusive.
Id. at 775.
In O'Brien v. Angley 63 Ohio St. 2d 159 (1980), the Supreme Court of Ohio rejected medical literature similar to the ACOG Monograph because it was biased and published "with a view toward litigation." Specifically, the Court held that an editorial article from the Journal of American Medicine should not have been admitted under the "learned treatise" exception to the hearsay rule. The court explained that the editorial was really an expression of opinion on a controversial subject and was published to influence litigation.