There are innumerable ways in which a victim of medical malpractice can lose his or her case. Time limits, a lack of evidence to prove an essential element of the claim precisely because the doctor was negligent in failing to perform a test, extensive tort reform propaganda which has seeped into our culture and changed the way many of us see personal injury cases, and the lawyers who handle them, in a negative light. Just to name a few. Add another one to the list: litigation literature.

You see, in medical malpractice cases (cases alleging a health care provider was negligent and caused harm), victims cannot simply walk into court, make some allegations, and have a jury decide the case. Rather, victims must rely on doctors – the same class of people being accused of malpractice – to establish essential elements of their claims.

These doctors often face professional repercussions for this testimony – they can be shunned by their colleagues and reprimanded by their professional organizations.

As a result, it is often the case, particularly in medical malpractice cases involving birth injuries, that doctors for the victims feel more comfortable when they can rely on evidence-based literature to support their conclusions.

Unfortunately, tort reform ideas have seeped so far into the medical profession that there exists a subsection of literature that does not exist for the purpose of advancing medicine or providing useful information to practitioners. Rather, the purpose of this literature – Litigation Literature – is to assist doctors who have agreed to testify against victims of medical malpractice in lawsuits.

More of this Litigation Literature was recently published. I will not bore you with the details, but it is useful in highlighting again the myriad hurdles victims of medical malpractice have to overcome for justice.

And in this case, the victims are babies who have suffered severe brain injuries during the birthing process, leaving them with permanent injuries that often require 24/7 care.