Medical Malpractice Birth Injuries

Brien Roche

Medical malpractice birth injuries are seen in a number of forms and in some cases may be the result of medical malpractice by the doctor.

Cerebral Palsy

Cerebral palsy has been thought to be a product of oxygen loss during the birthing process.  We now know that “cerebral palsy” may flow from the birthing process.  It may also begin in utero, i.e. before birth. In addition it could be that the injury is a product of some post-birth failure to resuscitate.

The term cerebral palsy is non-specific.  All it means is a palsy or tremor that flows from the largest segment of the brain.

The symptoms themselves can involve not only the brain but also the entire central nervous system. It frequently involves delays in movement, learning, hearing, seeing and thinking.  The symptoms can involve fine motor skills or may even result in being unable to walk. 

A small number of babies develop cerebral palsy as a result of brain infections or head injury from trauma. 

Treatment

Some recent advances in terms of the treatment have shown that the use of stem cells from a baby’s cord may promote healing and better muscle control for young children that are showing symptoms of palsy.  

Although there is no cure for palsy, there are varied methods of  treatment.  The sooner the treatment the better the chances are of a good recovery.  Some forms of treatment are physical, occupational speech therapy.  Some children have seizures and those can be controlled by medicine.  Surgery is an option to correct tight muscles.

The National Institute of Neurological Disorders and Stroke (NINDS), which is a branch of of the National Institute of Health, maintains a website on cerebral palsy which is an fine source of info. Call, or contact us for a free consult.

Shoulder Dystocia Causes Brachial Plexus

The American College of Obstetricians and Gynecologists states this occurs where delivery calls for additional obstetric maneuvers following the failure of gentle downward traction on the fetal head to accomplish delivery of the shoulders. 

A second way to define shoulder dystocia is any event where the baby’s shoulders have difficulty getting through the mother’s pelvis. 

Plexus

Shoulder dystocia is what may produce brachial plexus injuries which are also called Erbs Palsy. Sometimes there can arise some issue as to the connection between the brachial plexus injury and the phenomenon of shoulder dystocia. A fairly comprehensive study from Johns Hopkins states that permanent brachial plexus injuries were almost always associated with shoulder dystocia. The defense contention to the contrary probably has little merit. Volpes Treatise on Pediatric Neurology confirms this association. 

Children with these types of injuries have a physical deformity that affects them throughout their lives and as such these injuries are quite devastating.The injury itself involves the tearing of the nerves on the affected side of the upper body.

See the page on Wikipedia.

Brachial plexus injuries occur at the juncture of nerves that begin in the upper spine and travel through the neck, shoulder and arm to the hand. Damage to these nerves can result in a loss of feeling. In some cases, there can be complete paralysis in the arm, shoulder and hand area.  Most of these injuries resolve within six months of birth.  However, some are long lasting and crippling.

Causes

Most of these are caused when the doctor applies excess force during birth in response to what is seen as shoulder dystocia.  This is simply a failure of one of the babies’ shoulders to follow the head during the course of the birth.  One shoulder may become trapped either on the mother’s pubic bone or in the hollow of the mother’s tail bone. 

There are a number of ways to dislodge the baby’s shoulder from such blockage.

There are a number of factors that may place a baby at risk of dystocia:

• large size
• maternal diabetes
• mother that is overweight
• mother’s history of shoulder dystocia
• early second stage of labor

Role Of The Doctor

The role of the doctor in the birthing process is to see the risk factors and to disclose them to the mother. That way the mother can make an informed choice about having a vaginal birth or a C section.

Of the factors above the weight of the baby may be of the greatest import.  One common marker of fetal size is what is called fundal height which is the distance from the pubic bone to the top of the  uterus measured in centimeters.  This is noted during each pre-birth visit.  The number of centimeters should relate to the number of weeks of the pregnancy.  At 20 weeks the fundal height should be 20 centimeters.  A deviation of more than two requires some further checking to measure if the fetal weight is correct. Call, or contact us for a free consult.

Another risk factor is maternal diabetes.  This is something that all pregnant women should be tested for. 

It can happen that the dystocia is induced by the doctor during the course of birth.  This can result from a forceps or a vacuum assist birth.  By using these tools the doctor speeds up the travel of the baby through the pelvis and thereby prevents the normal folding and twisting  of the shoulders. This increases the risk.

Another result of shoulder dystocia is loss of air and/or blood flow to the brain during the birth.

If you or a loved one has had a child with brachial plexus injury or shoulder dystocia with long term damage, contact us

Hypothermia in Hypoxic Birth Injuries

Hypothermia is a mode of treatment for brain injured infants shortly after birth. This has been shown to produce good results as far as reducing the risk of death or grave neurological damage. The cooling blanket is applied to the head or body and is designed to reduce the body heat. Ideally these infants should receive the treatment within six hours of birth.

There are several factors to be looked at as to which babies may improve from this type of treatment. Number one is the presence of grade II or III encephalopathy based on the Sarnat Scale.

Medical Malpractice Birth Injuries Defenses

Birth injury cases are very tough cases. The doctor, through counsel, will throw many 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 where there is damage to the brain or spinal cord during the birthing process as a result of loss of oxygen or mechanical injury. This form of injury is from 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 claim against the health care providers.

Defenses

In addition 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 from oxygen loss to the baby.

During most births the mother is hooked up to a fetal monitor which records the heart rate of the baby. That is a very useful device but doctors in the defense of a birth injury case will use it against you. If the fetal heart rate 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 doctor to be alerted. If the fetal heart rate shows a reason for alarm, then the physician will argue that red flag was raised so late in the process that she could not perform a C-section and save the baby from brain injury.

Medical Malpractice Birth Injuries-NEACP

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 factors must be met before birth related loss of oxygen or blood flow can be  the cause of the brain damage or cerebral palsy:

• the 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 factor most often relied upon by the defense is the first.  When the lab report reflects that the NEACP cord blood gas criteria has been met then a doctor will find it tough to defend the case. Having said that there is a lot of data that shows that many infants with HIE were born with a pH value greater than NEACP criteria.

In addition there is data both from animal and human studies that confirm that brain damage is not a given when a baby has a loss of oxygen or blood flow.  This may be reversible.  The overall risk to the baby is a function of the length and how severe the loss of oxygen and/or blood flow is.

Medical Malpractice Birth Injuries-Apgars

The defense will also attempt to rely upon Apgar scores.  Apgar scores are five factors used in rating a baby.  These are heart rate, respiratory effort, reflex irritability, muscle tone and color.  Each of these is scored from 0-2 with the total score being a highest of 10.  The Apgar scores are taken at one minute after birth, five minutes after birth and then in some cases  10 minutes after birth.  The use of Apgar scores in terms of judging cerebral palsy or brain damage to an infant is misplaced because this scoring system can help predict the chances of survival in groups of infants, but will not predict whether an single infant will survive or do well.  There are,  however, several other factors that are better to rely on than Apgar scores in showing that a baby was exposed to some harmful 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

Medical Malpractice Birth Injuries-Contact Us

Brain damage to an infant during the birthing process varies from baby to baby.  What may damage one child may not affect another child.  What must be looked at is the entire picture in judging birth injury. Call, or contact us for a free consult.
See also an article on brain damage on this site.