Understanding A Birth Injury Claim

I have heard this story, in one form or another, from many of my fellow attorneys far more often than I care to mention:

The trial will start inside of a month. I represent a family including a very young child with spastic quadriparetic cerebral palsy in an action for medical malpractice filed against a number of doctors and a hospital. The gravamen of the action is a failure to timely deliver the baby thereby resulting in brain damage. I have taken over 20 depositions including the parties, witnesses, and treating healthcare providers. I have prepared and opposed motions and have made numerous appearances at hearings before the court. I have retained and designated nearly a half dozen medical experts and consultants, some of whom are charging me upwards of $1000 per hour. I have over 500 hours of my time, not to mention another $150,000 or so, into this case. I’m about to spend another $50,000 to $75,000 on expert depositions – mine and the dozen or so defense experts. I’ve come to the sobering realization that despite all of my effort and a substantial investment of my own resources over the last few years, my client’s case appears to be falling apart and the future of my client and my firm’s financial health are at jeopardy.

Where did I go wrong?

A coda common to these stories and that haunts the client and lawyer who endeavored to pursue such claims can be summed up as follows:

“If only I knew better at the beginning about what I was getting myself into.”

The conundrum confronted at the outset is that most attorneys do not have the resources to afford a medical consultant, whether a nurse or physician, to be readily available to apply their specialized knowledge and training to assist in the screening of a potential claim that in the end may prove to be without merit. An attorney in this position, who is unversed and inexperienced with the applicable medicine and law, may quickly accept the case and commence litigation that soon becomes a legal quagmire and financial drain. A failing case then breeds regret, robs the attorney’s incentive and drive, and exacts a heavy financial and emotional toll as both the attorney and the clients struggle to free themselves of it.

The goal is to determine, with a reasonable measure of confidence, whether a potential birth injury warrants further investigation and expense. For this, the attorney must have a basic knowledge and understanding of the medicine and its interplay with the law.

Understanding the Injury Recoverable Under The Law

In most personal injury matters, an effective initial case evaluation should first consider the nature and extent of the recoverable damages at issue. This is particularly true when screening a potential medical malpractice claim. Defining the injury and its economic value is a priority. When first approached with such a claim, you must remain mindful of the Medical Injury Compensation Reform Act (“MICRA”). MICRA as codified in part under California Civil Code section 3333.2 limits the recovery for non-economic losses such as pain, suffering and emotional distress recoverable in a medical malpractice case to a cap that started at a maximum of $350,000 in the year 2023 and has been increasing by $40,000.00 every year thereafter. A separate cap can apply to the physicians, hospital or an unaffiliated care provider if each was negligent and contributed to the child’s injuries.

In those cases in which negligent medical care allegedly caused the wrongful death of the child, the mother and father are limited to a single total maximum recovery limit for the loss of their child. Here, MICRA imposes a cap on the recovery for non-economic damages to a maximum of $500,000.00 starting in the year 2023 and has been increasing by $50,000.00 every year thereafter. Again, this cap can apply separately to a physician, hospital or an unaffiliated care provider depending on whether each was negligent in their care causing the death of the child.

In contrast to those matters that are limited strictly to the recovery of non-economic losses, the birth injury case involving a child who suffers from serious and permanent neurological injury requiring around-the-clock medical care and treatment throughout the child’s life span usually entails massive economic losses. These economic losses may arise out of the cost of full-time in-home nursing care, multiple hospitalizations, care by physician specialists, medications and equipment for a child with a near normal life expectancy. While on its face, a cost-to-benefit analysis based solely on this set of facts alone may warrant a decision to accept the case for further review, some additional answers usually attainable at the outset would give you a greater level of confidence in that decision.

Vetting and Examining the Available Sources of Information

In the universe of legally meritorious birth injury cases, a large subset is predicated on an allegation that a full-term baby, who was experiencing an acute lack of oxygen in utero, suffered brain damage caused by an unreasonable delay in performing a cesarean section or an assisted vaginal delivery. The principal sources of information to determine if a prospective matter may fit this set of circumstances are the parents and the medical records pertaining to the prenatal care, labor and delivery of the mother (including the fetal heart monitor strips) and the neonatal care of the infant. These specific sources are usually available when the potential claim first presents itself. They must be carefully mined as part of the initial screening process. You should interview the parents with a targeted set of questions and procure and review the medical records. In many instances, the parents may already have or are able to obtain some if not the entirety of the medical records directly from the hospital and healthcare providers. When examining these sources, you should watch for information supporting the medical diagnoses of Hypoxic Ischemic Encephalopathy (“HIE”) and Cerebral Palsy. HIE is a consequence of an acute asphyxia of the fetus typically brought on by circulatory problems diminishing the exchange of oxygen and carbon dioxide in the fetus. Cerebral Palsy is the permanent neurologic disability that will often evolve from HIE. Evidence of HIE and Cerebral Palsy is a strong indicator of a potentially significant brain injury that may require medical care and management over the child’s life span.

The Initial Client Interview

Parents are often a wealth of information that may be helpful in determining if their baby sustained HIE:

• Whether the baby was delivered by an unscheduled cesarean section, forceps or vacuum.
• A change in the plans from a vaginal delivery at the start of the admission to an unplanned cesarean section or a delivery that was expedited with the use of forceps or a vacuum applied to the baby’s head, especially performed as an emergency, can be the result of an acute non-reassuring fetal condition indicative of HIE.
• Whether neonatal resuscitation was performed immediately following delivery and the baby’s length of stay in the Neonatal Intensive Care Unit (NICU). Prolonged admissions to the NICU following neonatal resuscitation such as intubation and ventilation which exceed a couple of weeks also suggest a serious injury to the child secondary to oxygen deprivation.
• The timing of onset of seizure activity. The onset of seizures that occur shortly after delivery may indicate a recent insult to the brain that can qualify as a symptom of HIE.
• The administration of therapeutic hypothermia for the baby also known as cooling. Perhaps one of the most important pieces of information to determine if the baby sustained HIE is whether the baby underwent therapeutic hypothermia also referred to as whole body or head cooling therapy within 6 hours after delivery and lasting for approximately 3 days. The principal purpose of therapeutic hypothermia in this context is to reduce the severity of any permanent brain damage that can evolve from HIE. Most hospitals have strict written protocols restricting such treatment to babies that meet the criteria for acute HIE. Therefore, performing therapeutic hypothermia on a baby would likely serve as compelling proof that the baby sustained HIE.
• Genetic or metabolic abnormalities ruled out. Parents should also be asked about the results of any genetic and metabolic testing of their baby. If such testing excluded genetic and metabolic abnormalities, there is a greater likelihood that the cause of the injury is hypoxia.

What to Look For in the Medical Records

Assuming that pertinent parts of the mother’s and child’s hospital records are readily available, you should search for the following:

• Fetal heart monitor strips. The fetal heart monitor strip is an electronic record containing tracings documenting fetal heart activity and maternal contractions in real time. While fetal heart monitor strips are difficult to interpret by the untrained eye and should be evaluated by an appropriate expert, they often contain annotations inputted by nurses, physicians and midwives caring for the mother during her labor. These annotations usually set forth the healthcare provider’s interpretations of the fetal heart activity. Terms such as “late decelerations,” “variable decelerations,” “minimal variability,” “Category II,” and “Category III,” if found in the last several hours of the strip prior to delivery, should heighten your suspicion for an onset of fetal distress potentially caused by hypoxia.
• Delivery Summary. This record, which would be found in the mother’s hospital chart, documents the events during the delivery of the baby and will contain the Apgar score. The Apgar score is a method of assessing the clinical status of a newborn by assigning a score of 0, 1, or 2 for each of 5 different categories: color, heart rate, reflexes, muscle tone and respiration. This scoring is typically conducted at one minute of life, five minutes of life and ten minutes of life. Obstetricians and neonatologists generally agree that a five minute Apgar score of 7-10 is reassuring of a good outcome for the baby. For purposes of initial case screening only, however, a five minute Apgar score ranging between 0-3 is further information that should lead you to suspect asphyxia as the cause of injury.
• Operative Report. In this record, the obstetrician memorializes the events and observations during the cesarean section and will usually document the reasons for and findings made during the procedure such as fetal intolerance of labor, the umbilical cord wrapped around the baby, referred to as a nuchal cord, a detached placenta or the presence of meconium. Such information would provide additional insight on the nature and cause of the injury to the baby.
• Umbilical Cord Gas Lab Report. At the time of delivery, the obstetrician will preserve a portion of the umbilical cord containing fetal blood. That blood contained in the specimen is then sent to the lab for analysis. The analysis will set forth the level of acidity in the fetal blood identified as the pH and Base Excess or Deficit. Values that are abnormal and consistent with extraordinarily high levels of acidity in the fetal blood will qualify as objective evidence of a metabolic condition consistent with hypoxia.
• Placental Pathology Report. The obstetrician can send the placenta for a pathology evaluation. In that event, the pathologist will perform a gross and microscopic examination of the placenta and generate a report of the finding. While a normal placental exam can often result in the delivery of a baby suffering from HIE, the pathology evaluation may reveal evidence of a placenta that either partially or fully separated from the uterine wall. Such evidence could point to hypoxia as the cause of injury to the baby. On occasion, the pathology evaluation could also reveal evidence of a diseased placenta that may be subacute or chronic in nature. The significance of such information in terms of cause and timing of onset of injury is usually difficult to determine at the screening phase of the case but should be more closely examined if the case is accepted for a more thorough evaluation.
• Brain Imaging Reports. During the baby’s admission to the NICU, imaging of the baby’s brain such as CT Scans, ultrasounds, and MRIs are often performed to define the areas and extent of injury to the brain. The radiologist will dictate a radiology report setting forth the material findings on these studies. Reports that mention injury to the parts of the brain such as the thalamus, basal ganglia or deep grey nuclei are strong indicators of HIE. It is not uncommon, however, to encounter a radiology report in which no abnormalities of the brain are detected notwithstanding the fact that the baby has clearly sustained HIE. These false negatives are usually a consequence of the ability of the radiologist who may not be well versed in detecting subtle findings consistent with HIE. Thus, for purposes of the initial screening, caution should be exercised when relying on a radiology report on a brain MRI that detects no abnormalities when all or most other indicia corroborates HIE.

Conclusion

It warrants emphasizing that confirmation of HIE as the injury, standing alone, does not automatically establish negligence. Moreover, HIE is not the only injury that can result from substandard medical care during a patient’s prenatal, perinatal and postnatal course. The strategy here, though, should give better guidance to determine whether a potential claim justifies the emotional toll, the effort, and the financial demands of pursuing a lawsuit. The ultimate goal, most importantly, is a recovery for the child and the family that will make a significant and positive impact on their lives.

*Edited from the original article authored by Jin N. Lew, Esq. and published in Consumer Attorneys of California FORUM magazine Vol. 48; No. 6; November/December 2018