Birth Injuries

Evaluation of a "Birth Injury" Case, Part II

Any attorney contemplating a birth-injury case must anticipate the defenses, both legitimate and illegitimate, that can be raised in such claims. Indeed, an intelligent decision to undertake a birth-injury claim cannot be made without an examination of all the various factors that make it more or less likely that the claim will succeed. These factors can be clinical, scientific and theatrical. In this issue I will speak only to the clinical and scientific factors that play an important role in the prosecution and defense of birth-injury claims.

The clinical management of a pregnancy or delivery is not unlike the clinical management of other conditions in disease and in health. While almost invariably, an anticipated or expected course exists, there are also anticipated or expected variations from the usual course. There are melodies and there are variations. A skilled and careful listener should readily recognize the harsh note or a change in key or rhythm.

Similarly, a pregnancy has a usual course. Gestation is generally 40 weeks and the course of gestation is considered normal unless the period of gestation is significantly shorter or longer. However, even if the period of gestation is either significantly shorter or significantly longer, a healthy, normal baby usually is born. A post-dates (prolonged) gestation at 42 weeks, plus, is a pregnancy at greater risk than a pregnancy at 40 weeks gestation but it is, nevertheless, the case that the overwhelming majority of post-dates children at 42, 43 and even at 44 weeks gestation are born without permanent adverse consequences. The same can be said of children who are born prematurely. The advances in neonatal medicine now make it possible to predict that the majority of children born at 26 weeks gestation will survive without permanent harm.

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