Birth Injuries
Evaluation of a "Birth Injury" Case, Part II (continued)

The different approaches in managing pregnancy, labor and delivery that are undertaken for prematurity, post-dates, or other disorders, are crafted in recognition of the specific risks for each individual situation with a view toward reducing or eliminating those risks. Nevertheless, defense experts in birth-injury cases will commonly condemn or trivialize those measures universally employed to reduce the risk of injury to mother and child. For example, electronic fetal monitoring is the standard of practice in the United States. It is the gold standard by which any other form of monitoring must be measured. Nevertheless, defense experts will routinely deride the significance of ominous fetal heart tracings unless an "ominous" meaning is consistent with the defense of a particular health care provider.

Electronic fetal monitoring is a very sensitive indicator of fetal well being. It is however a better indicator of distress than it is of fetal injury. It's value as a monitoring device is based on its great sensitivity. Health care providers who ignore the warning provided by traditional ominous fetal heart monitoring patterns do so at the peril of their patients (and at their own peril in court).

The causation defense of birth-injury cases has evolved over the years and is, in fact, constantly changing. Whereas, once the causation defense was restricted primarily to the type of the injury produced and the condition of the baby at the time of birth, today the defense touts a variety of theories that purportedly enables their experts to not only accurately predict the time when a birth injury occurred, but to always find that time for preventing injury by medical intervention is essentially non-existent. The window of time during which intervention might help is always before or after any defendant had any possible opportunity to act.

The "narrow window" defense has many disguises. These disguises are based on defense experts' claims as to either the mechanism of injury or the timing of injury.

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