I still remember, in the minutes before my twins’ birth more than three months premature, the neonatologist’s answer to my question, “what are their odds of being okay?”
“Twenty percent,” he said, which I thought sounded good under the circumstances. When a child is in danger, you’ll take any hope you can get. We then spent 78 days in the neonatal intensive care unit (NICU), and after that countless sleepless nights with their apnea & bradycardia alarms going off, twice-weekly visits from a physical therapist, and trips to the hospital for difficulty breathing.
“Birth injury” is a marketing message for a lot of lawyers. It was a part of my law practice before my twins were born and, for me, it’s a calling. I can still remember the attending obstetricians sending my wife home five times in the week before they were born. We knew something wrong, but they didn’t want to believe it.
If your baby showed signs of an injury at birth — like if your baby had seizures, or had special treatment in the NICU like extra oxygen, surgery, or head cooling — help may be available. Labor and delivery mistakes are sadly common and the consequences are devastating. I’ve helped families recover millions of dollars in settlements for birth-related malpractice, and have retained as experts some of the best obstetricians, neonatologists, placental pathologists, pediatric neurologists, and lifecare planners in the country. We are intimately familiar with obstetrics, and what fetal heart rates should indicate a problem, how shoulder dystocia should be managed when a baby gets stuck, when an emergency c-section should be ordered for fetal distress, when cerebral palsy was avoidable, and why babies are referred to head cooling for hypoxic-ischemic encephalopathy or to extracorporeal membrane oxygenation (ECMO) for meconium aspiration. The medicine isn’t a challenge to us; it’s what we do every day.
Many Doctors Downplay The Medical Danger Of Childbirth
The birth of a newborn involves not just a complex physical process but also a complex chemical process. The baby has to learn to breathe, to switch using fetal hemoglobin in the low-oxygen environment provided by the placenta to using adult hemoglobin in the high-oxygen environment provided by the lungs. When a baby is in distress, they often begin that switch, but if the baby is still inside the mother, the consequences can be just as catastrophic as when an adult can’t breathe.
Even a typical childbirth can cause temporary injuries like plagiocephaly (flat head syndrome) or torticollis (twisted neck). Obstetricians, laborists, delivery nurses, and midwives are all specially trained to recognize when there’s a problem during child birth, like fetal distress or shoulder dystocia, and to treat it appropriately. But, because the process is typically smooth, many health care providers become lackadaisical — or downright hostile to mothers who report a problem — and so they don’t recognize or act on the warning signs.
Once a baby has been delivered, the medical care can’t just stop. Many times, the pediatric wards or the neonatal intensive care units fail to recognize developing issues with newborns, such as infections, sepsis, and jaundice.
The Three Main Types Of Labor And Delivery Malpractice
There are a wide variety of medical malpractice claims relating to pregnancy and birth. For example, in addition to normal negligence and medical malpractice laws, the federal Emergency Medical Treatment and Active Labor Act (EMTALA) holds hospitals liable if they refuse to admit women in active labor into the Labor & Delivery wards. But, in my experience, there are three main types of birth injury lawsuits.
1. Failing To Treat Fetal Distress
As described above, in a typical childbirth the baby transitions from low oxygen in the womb to high oxygen in normal air without serious problems. Even when something goes wrong, like a placental abruption or decreased heart rate variability, there is usually a window of opportunity in which the baby can be born without any serious complications or injuries.
The problem comes when the obstetricians, nurses, or mid-wives fail to recognize the signs of a problem, like by misreading the fetal monitoring strips, and so not diagnosing fetal bradycardia, decelerations, or low fetal heart rate variability. Other times, these health care providers recognize the problem but fail to take action, like immediately inducing labor or ordering an emergency cesarean section.
That delay in birth can lead to a situation in which the baby needs air but is still inside the womb, increasingly causing hypoxia (a lack of oxygen) and acidosis (increasing acidity of the blood). That, in turn, can lead to brain damage, often called “hypoxic ischemic encephalopathy.” That brain damage takes many forms, including intraventricular hemorrhage periventricular leukomalacia, which are bleeding in the brain.
Cerebral palsy is a general term used to describe a variety of related brain and nervous system conditions. (Read the National Institute of Health’s page on cerebral palsy here.) Most cerebral palsy is not caused by malpractice in the birth process, but malpractice in delivery can cause cerebral palsy, particularly spastic quadriplegic or dyskinetic palsy.
The American College of Obstetricians and Gynecologists (“ACOG”) has guidelines on when and how that action should be taken but, as I have written about on this blog, the ACOG guidelines don’t properly reflect the medical science, and in these lawsuits we often have to prove that the ACOG guidelines don’t go far enough to protect newborns. Other times, when the ACOG guidelines have been violated, the defendants pay an expert to claim that an “undiagnosed stroke” was the cause of the injury, and we have to prove that theory to be medical nonsense.
Learn more about Cerebral Palsy and Medical Malpractice, or about The Causes of Cerebral Palsy.
2. Treating Shoulder Dystocia With An Improper Technique
The birth canal is very narrow, so narrow that, even with extremely premature newborns that weigh than two pounds, mothers still have to push hard and doctors sometimes still have to use an episiotomy to cut part of the vaginal wall to let the baby out.
Thus, newborns of all sizes — and particularly macrosomic babies — can get stuck at the shoulders during birth, with the shoulder catching on the mother’s pelvic bone, even if they’re head-down and not in the breech position. Prolonged labor, premature rupture of membranes, and unusual birth positions can make dystocia more likely. These sort of birth complications are common, and so doctors are specifically trained to handle them. Some techniques involve manipulations, like the McRoberts maneuver (pulling the mother’s legs towards her abdomen) and Wood’s Corkscrew (rotating the baby’s shoulders), and other techniques involve medical tools, like forceps and ventouse (vacuums). Sometimes, medicines like oxytocin are administered to induce labor. In certain circumstances, an emergency c-section is warranted, even though the baby has already presented in part.
In the context of a shoulder dystocia, medical malpractice takes one of two forms. First, if the appropriate maneuvers and techniques are used, but not fast enough, then the baby can be deprived of oxygen and suffer brain damage. Second, if the delivering doctor uses improper techniques (like yanking or pulling on the baby’s head or otherwise applying force to the neck), then the baby can be injured. These includes can include fractures of the clavicle, humerus, and even the spinal cord or vertebrae.
Perhaps the most common problem after shoulder dystocia is a brachial plexus injury. The brachial plexus is a bundle of nerves that control the muscles from the shoulder down to the hand, including the arm, forearm, wrist, and fingers. An injury to this area can causes permanent injuries like paralysis or numbness of the shoulder, arm or hand, loss of functional range of movement, shortness in the affected arm (like Martin Sheen, who himself was born with a brachial plexus injury), altered positioning of the rotator cuff and shoulder blades, and atrophy of the connected muscles. (Read the National Institute of Health’s page on brachial plexus injuries here.)
In these cases, the defense is often premises on the idea that “natural forces” are sufficient to cause a brachial plexus injury, even though there’s no medical science to support that theory.
Learn more about Erb’s Palsy and Shoulder Dystocia.
3. Negligent Management Of High-Risk Pregnancies Involving Pre-Eclampsia or Placenta Previa
The third most common form of birth malpractice relates to the management of the pregnancy prior to the actual delivery. Pregnancy induces a significant stress on the mother’s body, sometimes causing serious complications like pre-eclampsia or HELLP syndrome (an acronym for Hemolysis, Elevated Liver enzymes, and Low Platelet count). Other times, mothers have pre-existing conditions like diabetes or develop gestational diabetes in the course of the pregnancy. Other times, complications related to the flow of nutrients through the umbilical cord to the baby develop, like placenta previa or twin-to-twin transfusion syndrome.
Most of these pregnancy complications can be managed, but they are often overlooked by obstetricians who are not as familiar with the diagnosis as a specialist like a maternal-fetal medicine physician. Sometimes, the condition is recognized but no treatment is prescribed, exposing the mother and baby to unnecessary risk.
In these cases, the defendants often blame the mother for her condition, or claim that the mother failed to bring it to their attention. We’re familiar with that practice and we know how to expose the doctor for their finger-pointing.
Learn more about Induced Labor Malpractice.