Brain damage in birth injury cases are complex matters that require skilled legal and medical review for the proper presentation of a medical malpractice case. Birth related brain damage can be caused by decreased oxygen and/or blood flow to the infant’s brain. This kind of resulting brain damage is referred to as hypoxic ischemic encephalopathy (HIE). These cases can involve instances where there is near total loss of delivery of oxygen and/or blood flow or, on the other hand, can involve partial prolonged loss of oxygen delivery and/or blood flow. The near total cases occur suddenly after such events as a uterine rupture, a tearing away of the placenta or a near total compression of the umbilical cord. On the other hand the partial prolonged loss of blood or oxygen to the brain occurs over a period of time and can be due to such events as a partial obstruction of the umbilical cord.
There are several things that may assist in determining exactly when the injury occurred:
- Fetal heart tracings are the best indicator of when the injury occurred. If these tracings show a sudden decrease in heartrate to less than 110 beats per minutes, a condition called bradycardia, that is a good indication of a discreet event that may cause brain injury. However, a slow progressive downturn in the heart rate may likewise be indicative of injury.
- Blood gas test results.
- Radiological films
- HIE that was evident at birth or during the first hours of life.
- Early onset of seizures.
These factors either alone or in combination are indicators that the injury resulting in brain damage or cerebral palsy occured during the birthing process and were not due to some other cause.
Other potential causes of brain damage or cerebral palsy are:
- coagulation disorders
- genetic disorders
Likely Defenses in Brain Damage Cases
The defense will likely rely upon a publication of the American College of Obstetricians and Gynecologists called Neonatal Encephalopathy and Cerebral Palsy (NEACP) which asserts that four essential criteria must be met before birth related loss of oxygen or blood flow can be identified as the cause of the brain damage or cerebral palsy:
- the umbilical cord arterial blood pH must be less than a certain amount
- there must be an early onset of encephalopathy
- the cerebral palsy must be of the spastic quadriplegic or dyskinetic type
- the exclusion of other causes
The above referenced criteria that is most often relied upon by the defense is the first. When the laboratory report reflects that the NEACP umbilical cord blood gas criteria has been met then a defense doctor will find it difficult to defend the case. Having said that there is substantial data that shows that many infants suffering from HIE were born with a pH value greater than NEACP criteria.
There is overwhelming data both from animal and human studies that confirm that brain damage is not automatic when a baby experiences a loss of oxygen or blood flow. The condition may be reversible. The overall risk to the baby is a function of the duration and the severity of the loss of oxygen and/or blood flow.
The defense typically will also attempt to rely upon Apgar scores. Apgar scores are a combination of five criteria that delivery room personnel use in rating a baby. These five criteria are heart rate, respiratory effort, reflex irritability, muscle tone and color. Each of these five criteria is scored from 0-2 with the total score being a maximum of 10. The Apgar scores typically is taken at one minute after birth, five minutes after birth and then in some instances 10 minutes after birth. The reliance on Apgar scores in term of evaluating cerebral palsy or brain damage to an infant is misplaced because this scoring system can estimate the probability of survival in groups of infants, but will not predict whether an individual infant will survive or do well. There are, however, several other indicators that are far more reliable then Apgar scores in establishing that a baby was exposed to some damaging event during the birth process.
- early onset seizures
- evidence of HIE at birth or during the first 24 hours of life
- neonatal blood-gas pH of less than 7.2 during the first hours of life which confirms metabolic acidosis
- neurological studies confirming edema or basal ganglia pathology.
- abnormal muscle tone
- poor feeding
- altered levels of consciousness
- symptoms of encephalopathy during the first week of life.
- meconium-stained amniotic fluid
- abnormal fetal heart rate
- need for intubation and assisted ventilation at birth
Brain damage to an infant during the birthing process is variable from baby to baby. What may be devastating to one child may not be devastating to another child. What must be looked at is the entire clinical picture.
Contact a Medical Malpractice Attorney
If you have a case involving brain injury to an infant that you believe occurred during the birthing process, contact us and your case will be given the consideration and review that you deserve.
See also fetal heart rate misdiagnosis and other articles on this site dealing with birth injuries.