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 birth injury occurred:
These factors either alone or in combination are indicators that the birth 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:
Birth injury cases are extremely difficult cases. The doctor or health care provider, through its counsel, will throw several road blocks in your path.
The most obvious of those road blocks in Virginia is the Virginia Neurological Birth Injury Act which precludes suit against a health care provider who has delivered a baby wherein there is damage to the brain or spinal cord during the birthing process as a result of oxygen deprivation or mechanical injury. Mechanical injury would mean the use of forceps or a vacuum assist device.
If your case is governed by that Act, then you must pursue your claim under that Act and that deprives the child of any malpractice claim against the health care providers.
In addition, as part of the defense of any birth injury case, a common defense is that the injury occurred in utero. That in utero injury could have been a result of some problem with the placenta or other problems resulting in oxygen deprivation to the baby.
During most births the mother is hooked up to a fetal monitor which monitors the heart rate of the baby. That fetal heart rate monitor is a very useful device but physicians in the defense of a birth injury case will frequently use it against you. If the fetal heart rate monitor shows no cause for concern, then the health care provider will argue that even though the baby was born with brain injury there was no reason for the physician to be concerned. If the fetal heart rate monitor does show a reason for concern, then the physician will argue that red flag was raised so late in the process that the physician could not perform a C-section and save the baby from brain injury.
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 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:
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 in evaluating the birth injury.
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.
For more information about birth injury cases see the pages on Wikipedia.