Evaluation of a Birth Injury Case (Part 1)

It is safest to establish early on that the nature and timing of the injury in the given case is consistent with the injury having occurred at or about the time of birth. If, for example, an infant is born with Apgars of 8 and 9 and crying vigorously when born, and at one year of age is diagnosed for the first time as suffering cerebral palsy, one can safely assume this cerebral palsy did not result from an event occurring within a few hours prior to birth. Indeed, the Committee on Obstetrical Practice of the American College of Obstetrics and Gynecology has published guidelines for those factors to be considered in the assessment of whether an injury has resulted from birth asphyxia. These guidelines are set forth at ACOG Committee Opinion No. 197, which is available from the American College of Obstetrics and Gynecology and can be obtained by writing to ACOG, 409 12th Street, SW, P. O., Box 96920, Washington, DC 20090-6920. Though the American College of Obstetrics and Gynecology and others have emphasized, among other criteria, the significance of there being evidence of multiple vital organ system dysfunction, not all agree that such dysfunction is required. Moreover, evidence of whether certain criteria were present or not may have been overlooked or not recorded and requisite tests may not have been performed. For example, nurses notes may record that there was blood in the urine which would be evidence of acute tubular necrosis (renal dysfunction) yet the pediatrician attending the child may have not noted the condition. The discharge summary and progress notes might be entirely silent with respect to the occurrence of this renal injury.

If an infant seems to be born intact and a year later is noted to have cerebral palsy, the brain injury was probably not asphyxic and occurred from other causes at some point in the prenatal course or occurred as a result of an event but took place following the birth. Whereas, the causes of a prenatal brain injury remain somewhat obscure because they are generally unwitnessed events, one can be fairly confident that a brain-damaging event occurring after delivery will not go unnoticed. Indeed, with the exception of strokes, orembolic events, the kind of ischemic hypoxic state needed to create an injury to brain tissue is unmistakable. It would generally incorporate the features of shock. There would be a period of time during which the child was unconscious, hypoxic, hypotensive, and/orhypoglycemic and/or hypothermic, etc. Parents would invariably be aware of such an event and, if such an event occurred during the course of the hospitalization, it would have been witnessed since a child suffering from such an event would not recover without some form of intervention.

Even where the signs of an asphyxic injury occurring in the immediate antenatal (pre-birth period) are present, your evaluation has just begun. Low Apgar scores do not prove that a child suffered significant oxygen deprivation. Clear evidence of oxygen deprivation is provided, however, by arterial blood gas analysis of the cord blood specimen. Cord blood gases are often not obtained . However, it is usually the case that children who are born seriously ill have an arterial blood gas done in the early neonatal period (within the first few hours of life). It is possible to establish by the character of the deficits seen at a blood gas taken two or even three hours or more after birth the extent of oxygen deprivation which must have been present prior to birth. This is true because the metabolism of glucose in the absence of oxygen produces lactic acid. The contribution of lactic acid to a condition ofacidosis can be estimated by determining how much carbon dioxide is present in the specimen. If the carbon dioxide levels are low but profound acidosis remains, such acidosis is due to lactic acid and not carbonic acid (a byproduct of metabolism in the presence of oxygen).

Even where the child shows evidence at the time of birth of multi-organ system failure, low Apgar scores and acidosis, these cases are still defended by experts for hire. These hired-guns find in placental slides or in the esoterica of nucleated red blood cells or other lab values measured after birth the basis for asserting that no asphyxic brain injury occurred because the injury developed during some narrow window of time over which the defendants had no control, e.g. before labor began. It is for this reason that we here recommend obtaining placental slides and having such slides reviewed early on in our birth injury cases even where the original reading of such slides by the hospitals involved in the case were negative. In addition, it is necessary to examine a full set of records, both maternal and infant, including fetal monitoring strips which, in general, are not stored with the charts and must be requested separately from the obstetrics department.

Though a local obstetrician may be willing to assist in the review of the matter off the record, such an off the record consultation can have unfortunate consequences if there is undue reliance placed upon the opinions given. It is key to identify potential defenses during the initial screening process. For this, a maternal fetal specialist and/or perinatologist may be essential for anticipating potential defenses and determining whether such defenses, legitimate or not, are suggested by the medical course and available data.

A review of ultrasounds, MRI’s and CAT scans early on is of great assistance even where reports of such studies in a given case seem to be supportive of the general theory of the case and the mechanism by which injury is thought to have occurred. The report of the studies may not contain sufficient information to accurately define the full scope of tissue involved or the state of acute change (cerebral edema, etc.) which is present. Though among the most challenging of the cases, a well-handled birth injury case not only brings final relief to the devastating economic challenges such children present, but also materially reduces the probability that those persons involved will commit the same errors in future.

All articles in this blog are the collaborative effort of attorneys Jerry Meyers, Brendan Lupetin, and Gregory Unatin.

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