Profile of a Birth Injury Case

By Ralph F. Holmes

For plaintiff and defense counsel, medical liability cases tend to be among the most challenging of tort cases. They are hard fought and resource intensive and require you to master specialized, sometimes arcane medical knowledge. Among these cases, birth injury cases are often the most challenging and consuming. They involve high stake claims for catastrophic injuries, usually that a child suffers cerebral palsy as a result of obstetric negligence. Unlike other medical cases, birth cases demand that you understand the medical science for the diagnosis and treatment of not just one patient, but three: mother, fetus, and child. The cases always involve many experts, sometimes over ten per party. Given their uniqueness and significance, birth cases merit some discussion.

While these cases can present myriad liability questions, the most common claim is that the defendant failed to effect a timely delivery in view of indications of fetal distress disclosed in readings of a fetal heart monitor ("FHM"). The FHM is an extraordinary device, which ultrasonically measures labor contractions of the mother's uterus and the heart rate of the fetus through a sensor located on a belt worn by the mother around her abdomen. The belt is linked to a monitor which contemporaneously prints parallel graphs depicting labor contractions and the fetal heart rate. The characteristics of the fetal heart rate graph individually and in correlation with the labor contraction graph reveal a wealth of information about fetal well-being, including fetal oxygenation. How the fetal heart rate responds to the stresses of the contractions can dictate whether care providers should attempt: 1) further diagnostic testing through the placement of internal devices to measure the internal pressure of contractions, the fetal heart rate, or the oxygenation of fetal blood; 2) resuscitation of the fetus through administration to the mother of oxygen or IV fluids or administration to the mother of medicine to reduce or temporarily stop contractions; or 3) rescue of the baby by caesarian section, vacuum extraction, or forceps delivery. Many birth cases center on the interpretation of the FHM and whether the defendants provided appropriate care in light of FHM indications of fetal well being.

As one might expect, the standard of care experts for both sides almost always are obstetricians and often are published experts who have specialized practices in the field of high risk obstetrics, known as "perinatology." In some cases, claims are made that labor and delivery nurses should have responded to indications of fetal distress and in those cases the obstetrician experts and/or separate nursing experts testify to nursing standards of care.

In many of these cases, the timing of the neurologic injury is contested almost as vigorously as the standard of care. Cerebral palsy is a broadly defined syndrome that arises from lesions of the fetal brain that can be caused by oxygen deprivation and other causes and can develop during the stresses of labor or prenatally. Timing these injuries is often a difficult question and can be assessed by a variety of factors, including: indications of fetal well-being in FHM readings; the presence or absence of maternal prenatal illnesses; the timing and duration of swelling of the newborn brain as shown in radiology studies; the timing of neonatal neurologic sequellae, such as seizures; and the severity and duration of the newborn's lack of oxygenation in the first hours of life. Analysis of the timing issue often requires counsel to engage a pediatric neurologist and/or a neonatologist to interpret neonatal clinical information to correlate it to the timing of the lesions; a pathologist with a specialty in placenta analysis to study placenta tissue slides to rule in or out infection and other disease processes and to identify cellular markers for fetal oxygen deprivation; and a neuroradiologist to study brain radiology films of the newborn to define the brain lesions and to correlate any swelling of the brain with the timing of the lesions. From these and other disparate sources, the timing and sometimes the specific cause of the injury can be assessed.

By definition, these cases involve human tragedies on a large scale. Cerebral palsy always involve neuro-motor impairments and usually, but not always, great cognitive deficits. The child typically faces a life of unending physical, emotional, and social difficulties unimaginable to the rest of us. Usually, the child will require medical support throughout life, including many surgeries. To prepare the damages case, counsel for both sides commonly engage a physiatrist to project the future medical conditions and needs of the child for the duration of his or her life; a life care planner to prepare cost projections for the anticipated care and supports of the child; a vocation rehabilitation expert to project the child's ability to earn an income if no injury had occurred as compared with the current injured state; and an economist to calculate in net present dollars the projected medical costs and reduction in earning capacity.

Given their complexity and the number of experts required, the discovery and preparation of one of these cases often takes well over a year and the trial of one will almost always last weeks and may last a month or more. Among tort cases generally and medical cases specifically, birth injury cases are particularly challenging and demanding.