Dov Apfel.

Birth Injury Information
Dov Apfel.
Press Release


The Montgomery County Sentinel.

Vol. 144, Issue 13 Thursday, October 21, 1999

A Legal Discussion on Medical Malpractice:

Can cerebral palsy be prevented?

By Dov Apfel

Dov Apfel.
Approximately 3,000 children are diagnosed with cerebral palsy every year in the United States. cerebral palsy is a neurologic condition appearing early in life that can affect gross and fine motor skills in both the legs and the arms (quadriparesis), either the legs or the arms (diplegia), or one side of the body (hemiparesis). Some children diagnosed with cerebral palsy also may develop seizures, have sensory deficits (such as hearing or vision loss), and/or suffer from mental retardation and learning disabilities, Whatever its particular manifestation, children with cerebral palsy have special needs for costly medical and educational services which have the potential to dramatically improve the quality of their lives.

Sometimes the clinical condition of the newborn immediately after birth will alert the physicians and parents to the fact that the baby has suffered a brain injury. In other cases, the parents may not realize that their child suffered a brain injury until the child fails to achieve developmental milestones during the first years of life. Regardless of when the parents find out about their childŐs condition, when they ask physicians for an explanation as to why their child suffered an irreversible brain injury, they are often told that the outcome was unavoidable. However, some parents suspect that the facts and circumstances that led to the brain damage are not being fully disclosed. These parents may decide to retain an attorney to help them to investigate the etiology and timing of their childŐs brain injury to determine whether the cerebral palsy could have been prevented with proper obstetric or neonatal care or earlier delivery.

In courtrooms throughout the United States, lawyers and doctors often debate the causes of cerebral palsy and whether it is preventable. There are several possible explanations. Genetic abnormalities and certain types of metabolic diseases and viral infections are risk factors for cerebral palsy. Some physicians routinely blame unidentifiable, undocumented events occurring before labor and delivery for causing brain damage; others blame low birth weight and prematurity. Some infants sustain brain injuries due to trauma caused by the improper use of forceps and vacuum extractors, or as a result of undiagnosed and untreated bacterial infections. Yet another group of infants who are diagnosed with cerebral palsy suffered perinatal or birth asphyxia. (Asphyxia refers to a sequence of events that begins when blood flow to the brain is reduced (ischemia), or the oxygen content of the blood perfusing the brain falls below normal levels (hypoxia). As the hypoxia or ischemia persists, harmful acids capable of causing brain damage can accumulate in the blood leading to metabolic acidosis.)

The knowledge that potential neurologic injury can result from asphyxia must play an important role in shaping the standard of obstetric care and the timing of delivery. During pregnancy, the developing fetal brain depends on an uninterrupted supply of oxygen and glucose. Thus, every clinician must be on the lookout for signs that the fetus' oxygen or blood supply is being compromised and that the potential for asphyxial brain damage is present. Moreover, it is well-known that the potential for severe and diffuse brain injury increases with the severity and duration of the hypoxia or ischemia. Thus, cerebral palsy may occur in some children because the clinicians failed to recognize and properly manage the underlying maternal or fetal conditions that led to birth asphyxia.

One example of a tool that is available to help clinicians avoid fetal asphyxia and death during the pregnancy is electronic fetal monitoring. The fetal heart rate in both premature and term fetuses manifests abnormalities, such as late decelerations and decreased variability, when the fetus becomes hypoxic or acidotic. Abnormal fetal heart rate patterns can signal a developing crisis for the fetus that can be prevented by timely intervention and expedited delivery. Thus, for electronic fetal monitoring to help doctors and nurses determine whether the fetus is being compromised in utero, doctors and nurses must be properly trained to recognize "abnormal" or "nonreassuring" fetal heart rate patterns. More importantly, they must appreciate the potential dangers associated with specific patterns and expedite the delivery in those circumstances where fetal well-being cannot be confirmed.

Obviously, obstetricians believe that they can take steps to try to improve the outcome of every pregnancy. Why else would they emphasize the importance of prenatal care, order ultrasounds and other prenatal tests of fetal well-being, utilize electronic fetal monitoring during labor and delivery, and expedite delivery -- often via cesarean section -- when there are indications of fetal distress? Specialists in obstetrics, neurology, pediatrics, pathology, and radiology continue to acknowledge that asphyxia can cause cerebral palsy and other permanent neurological complications. Unfortunately, however, cases of cerebral palsy continue to occur because some clinicians fail to recognize and to respond to fetal heart rate patterns suggesting the presence of hypoxia and developing acidosis and to expedite the delivery before the onset of irreversible brain damage.

Thus, it is reasonable for parents to ask lawyers to review the medical records of a newborn - whether full term, low birth weight (less than 2,500 grams at birth), or born prematurely (less than 37 completed gestational weeks) Đ to determine if there were signs of fetal distress during the pregnancy or if the child suffered asphyxia at, or close to, the time of delivery. Some of the questions that may be answered during the evaluation of a potential claim of medical negligence are whether the physician: (1) diagnosed all maternal and fetal conditions capable of interfering with normal oxygenation of the fetus, (2) ordered appropriate tests to assess fetal well-being, (3) recognized the clinical signs of fetal distress, (4) attempted appropriate interventions to eliminate the abnormal fetal heart rate and to increase oxygen delivery to the fetus, (5) recognized signs of progressive hypoxia and developing acidosis, and/or (6) expedited the delivery before the condition causing the fetal distress resulted in irreversible brain injury or death.

To properly answer these questions, lawyers should understand the mechanism of birth asphyxia and how it can cause irreversible brain injury and cerebral palsy. It is also important for lawyers to be familiar with, and to have access to qualified medical experts who are knowledgeable in, a wide range of medical topics, including but not limited to: electronic fetal monitoring, placental pathology, pediatric neuroradiology, antepartum fetal testing, maternal and neonatal infection, and the assessment and management of respiratory distress and other newborn complications.

The economic burden of caring for a child with cerebral palsy is overwhelming. When the evidence establishes that the brain injury could have been prevented, it is reasonable for the parents to resort to the legal system to obtain financial assistance from the negligent parties to help the parents provide long term care for their child.

Dov Apfel is a principal in the law firm of Joseph, Greenwald & Laake, P.A. 6404 Ivy Lane, Suite 400, Greenbelt, Maryland 20770. He can be reached by phone at 301-220-2200, or by e-mail. Mr. Apfel is contacted by lawyers and families throughout the United States to assist them with potential medical malpractice claims involving children who have died, or who sustained irreversible brain damage. He is the former Co-Chair of the Birth Trauma Litigation Group of the Association of Trial Lawyers of America and a member of the Board of the Medical Negligence Section of the Maryland Trial Lawyers Association.

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.
Dov Apfel   •   Levin & Perconti, LLP   •   325 North LaSalle Drive, Suite 300   •   Chicago, Illinois 60654
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