Lawyers experienced in evaluating birth injury cases understand that many possible clinical scenarios exist. A review of the medical records may disclose a history of one or more maternal, fetal, or placental complications that are capable of initiating a sequence of events leading to hypoxic or ischemic brain damage during the antepartum and intrapartum periods of pregnancy, including:
- preeclampsia,
- eclampsia,
- diabetes,
- preterm labor,
- premature rupture of the membranes,
- chorioamnionitis,
- neonatal sepsis
- group b strep colonization or infection,
- umbilical cord compression,
- oligohydramnios,
- late decelerations,
- nonreactive nonstress test,
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- uteroplacental insufficiency,
- placental infarction,
- shoulder dystocia,
- post-dated or post-term deliveries
- trauma from forceps or a vacuum extractor
- intrauterine growth restriction,
- uterine rupture,
- placental abruption,
- placenta previa,
- vasa previa,
- vaginal birth after cesarean (VBAC).
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The parents of a brain damaged newborn can be certain about one thing. No matter what happened during the pregnancy or during labor and delivery, the doctor will claim that the events leading to baby's brain damage could not have been prevented. If the complications occurred before labor, the doctor will always try to claim that the brain damage occurred in utero before he or she had an opportunity to diagnose and treat the complication. If the complications occurred during labor and delivery, the doctor will always claim that the brain damage developed before the mother arrived at the hospital and/or before labor and delivery. Even in cases where the most probable cause of the infant's bad neurological outcome is birth asphyxia, the doctor's lawyers still will try to claim that the damage was caused by a structural malformation of the brain, genetic factors, infection, or other metabolic conditions.
Every doctor and nurse knows that a fetus may be compromised acutely or chronically for ten minutes, two hours, or two days. The stress may be persistent or intermittent. The hypoxia or ischemia may be mild, moderate, or severe. It may be partial or complete. One fetus may have adequate reserves and compensate; another may be chronically stressed and not compensate. One may sustain global brain damage, another may have focal damage. One may suffer an intracranial bleed, another may not.
Every doctor and nurse is taught that potential neurological injury can result when hypoxia progresses to asphyxia. This knowledge must play an important role in shaping the timing of delivery. Clinicians must remove the fetus from a hostile intrauterine environment while there is still a window of opportunity to intervene before irreversible brain damage develops.
Granted, doctors are not responsible for preventing malformed or genetically damaged brains. However, doctors and nurse routinely use electronic fetal monitoring to help them detect abnormal FHR patterns and nonreassuring signs that pose a serious threat of irreversible neurologic injury to the fetus. Proper interpretation of a strip may even enable clinicians to prevent damage even when catastrophic events occur without warning, such as uterine rupture, placental abruption, or cord prolapse, provided that the delivery is taking place in a hospital that has the facilities and personnel readily available to perform an emergency cesarean section. Time is of the essence when a fetus is in a hostile intrauterine environment.
Lawyers can help parents evaluate the EFM strips and the clinical record in each case to determine whether the obstetrician failed to timely diagnose and respond to fetal distress and whether the brain damage could have been prevented with timely intervention. The search for clues to determine the etiology and timing of brain injury requires careful consideration of all maternal and fetal conditions, acute or chronic, that were capable of interfering with normal gas exchange between the fetus and mother.
Parents should ask any lawyer who agrees to evaluate a potential birth trauma case if he or she is familiar with the clinical markers that can help to establish the etiology and timing of the events that caused brain damage or death. The selection of clinical markers and the weight given to each variable to determine the timing and/or etiology of irreversible brain damage will vary from expert to expert and from specialty to specialty (i.e., obstetrician, pediatrician, neonatologist, pediatric neurologist, placental pathologist, or pediatric neuroradiologist).
In every potential case, lawyers must consider whether the clinician truly had a legitimate reason for delaying the delivery, whether timely and appropriate tests were performed to confirm fetal well-being during the delay, and whether the parents were advised of the options between a vaginal delivery or a cesarean section. After all, according to ACOG, 87% of the infants delivered at 30 weeks survive, and 81% of the survivors are free of major morbidity. ACOG Technical Bulletin, Preterm Labor, Number 133 - October 1989. The percentages increase to 95% survival at 32 weeks, with 90% surviving free of major morbidity.
Thus, an attorney evaluating a potential claim of negligence will consider whether the responsible physician or nurse: (1) performed EFM when necessary; (2) recognized abnormal, alarming, concerning, suspicious, ominous, variant or nonreassuring FHR patterns; (3) attempted appropriate interventions to eliminate the abnormal FHR and increase oxygen delivery to the fetus; (4) recognized signs of progressive hypoxia and developing acidosis; and (5) expedited delivery during a time period where irreversible brain injury or death could have been prevented.
Please Note:
This web site is not intended as legal advice on cerebral palsy, and is not a substitute for obtaining guidance from your own legal counsel about cerebral palsy litigation. It provides general educational information about the standards of care and causation issues that can arise in obstetrical malpractice and cerebral palsy litigation. Readers of the articles contained within this web site should not act upon the cerebral palsy information without first consulting with a lawyer who is experienced in evaluating and litigating cerebral palsy and obstetrical malpractice cases. Mr. Apfel is admitted to practice law in Maryland and the District of Columbia. When Mr. Apfel is asked to participate in cerebral palsy
litigation filed in other states, he will associate with, and act as co-counsel with, an attorney licensed in that state who is familiar with the local laws and procedures.
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