A child and her mother may sue a Durango hospital and the doctor who delivered her for malpractice, based on a disputed medical theory about pressure applied to a baby’s head during birth, the Colorado Court of Appeals ruled.

After 26 hours of labor, a child identified as Abigail Dean was born not breathing and not moving. A doctor in the newborn intensive care unit at Centura Health-Mercy Regional Medical Center of Durango noted at the time: “I have never seen anything remotely like this.”

That night, the doctor ordered her transfer to Children’s Hospital of Colorado in Denver, following two episodes of breathing cessation. A cooling therapy was available in Denver to reduce or mitigate brain damage. However, upon arrival in Denver, staff determined too much time elapsed for the therapy to be effective on the child.

When Abigail and her mother sued Catholic Health Initiatives, which operates the hospital, CHI sought to limit expert testimony. Specifically, they disputed the theory that a compression of the child’s head due to uterine contractions decreased the oxygen and blood flow to the brain during birth, causing injury. The defendants referred to this phenomenon as “cranial compressive ischemic encephalopathy.”

Arapahoe County District Court Judge Elizabeth Beebe Volz appointed a special master to look into the facts, who concluded that CCIE was not a reliable theory. He also recommended excluding evidence, including expert testimony, relating to CCIE. Volz adopted the recommendation, and also barred testimony related to the separate theory of a traumatic brain injury resulting from child’s head impacting her mother’s pelvis – even though CHI did not dispute that theory.

Subsequently, Volz dismissed the case.

“Child contends that the district court abused its discretion by excluding evidence of the CCIE theory of causation,” wrote Judge Michael H. Berger for the three-member appeals panel. “Although this is a close question, we agree.”

Both of the parties agreed that the plaintiffs’ experts were qualified, but the district court found CCIE to be an unreliable theory because of a lack of peer-reviewed studies upholding it and no data to support it.

A 2017 paper that compiled findings on the subject concluded fetal intracranial pressure and blood flow “appear well protected” from the external pressures of labor and the mother’s pushing, in large part due to the molding of the baby’s head. The author, Kent D. Heyborn of Denver Health, also noted that the CCIE theory’s proponents have not indicated how head compression should be diagnosed or mitigated.

However, “[r]andomized controlled trials of ‘excessive’ head compression (however, that might be defined) are of course not practicable,” Heyborn added.

Two leading medical associations, the American College of Obstetrics and Gynecologists and the American Medical Association, have also come out in opposition to CCIE. In a 2018 case in Texas, the two groups filed a brief arguing “there is no reliable literature showing that the hypothetical mechanism of injury ever has been reported or even observed outside of litigation.”

The CHI lawsuit was not the first in Colorado to raise the question of CCIE’s admissibility. A separate appeals panel in August of this year reinstated a lawsuit involving an infant who was born with cerebral palsy after 36 hours of labor deprived his brain of oxygen. The panel in that case, Trujillo v. Vail Clinic, Inc., wrote that “[w]hile CCIE is not junk science, its lack of testing, widespread acceptance, and publication will almost certainly be the subject of cross-examination.”

“Wouldn’t it be an odd state of affairs,” asked Judge Jerry N. Jones during oral arguments in the CHI case, “for one division of this court to say this is a valid scientific theory and another division to say this is not a valid scientific theory?”

The appellate judges found that in evaluating the scientific theory of CCIE against such factors as peer review, general acceptance and the relationship of the theory to scientific analysis, the Arapahoe County judge did not consider whether the underlying principles of CCIE were themselves widely-accepted.

“For example, Dr. Stewart Ater testified that peer-reviewed studies describe a relationship between decreased oxygen flow to a fetal brain and increasing uterine pressure. That portion of his testimony was not disputed by the defendants,” Berger wrote. “By focusing only on the acceptance of the ultimate theory, and not the subsidiary components of the theory, the court failed to consider all of the relevant circumstances.”

The panel concluded the district judge erred by omitting expert testimony from medical professionals who could speak to CCIE from firsthand knowledge. Because the special master and the defendants did not raise the trauma theory of injury, the judge was also incorrect to dismiss the claim on those grounds.

The panel reinstated the lawsuit against CHI and the doctor who delivered the child, Mareca Pallister. By a 2-1 vote, the appellate judges allowed the dismissal to stand against the doctor who ordered the baby airlifted to Denver. Retired Judge JoAnn L. Vogt, sitting on the panel at the chief justice’s assignment, indicated she would have allowed the malpractice claim to proceed against the NICU doctor, citing an expert witness’s statement that the child likely would have benefitted from the cooling therapy much sooner.

The case is Dean v. Catholic Health Initiatives Colorado et al.