INFORMATION ABOUT
BIRTH TRAUMA MALPRACTICE

We hope that the questions and answers presented here will assist you in familiarizing yourself with some of the main issues and terms associated with Birth Trauma Malpractice. While the material below attempts to answer common questions in this area, State and local laws may significantly modify the facts set forth. Because all legal problems are unique, nothing provided here is a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

WHAT IS TRAUMATIC BRAIN INJURY?

"Traumatic brain injury" is a general term that simply refers to injury to the brain. Although the term can describe any type of brain injury, for example injury that occurs during a car accident, it usually is used to refer to injury to the brain of an infant or newborn. In this context, the term "traumatic birth injury" is more commonly used. This kind of injury may be due to medical malpractice.

ARE THERE DIFFERENT TYPES OF TRAUMATIC INJURIES IN INFANTS?

Yes. Traumatic injuries can broadly be classified as "mechanical" or "anoxic." Depending on the category, the injury in the infant may not be apparent at first.

Mechanical injuries usually involve a physical touching of the infant's body. For example, the doctor or midwife might tug on the infant's arm during the birthing process. This might result in a problem called "Brachial Plexus Injury" which would cause the arm and hand involved in the tugging to have limited development and strength. Another example of mechanical trauma is injury to the infant's skull during birth. This trauma may cause subsequent damage to the brain of the infant.

"Anoxic Injury" refers to injury to the brain as a result of decreased oxygen supply. This can happen by a number of mechanisms during pregnancy and/or delivery. It is important to pay attention to what is going on during the entire pregnancy, up to and beyond birth of the baby. Even a small detail can be important in explaining why your baby has a problem. The reason for a traumatic brain injury may not be obvious at first. Details during the pregnancy and delivery can be very important and relevant.

PREGNANCY AND HAVING A BABY SEEM VERY COMPLICATED. HOW COULD I EVEN START TO UNDERSTAND IF MY BABY'S INJURY IS SOMEHOW RELATED TO A PROBLEM WITH THE CARE I AND/OR MY BABY RECEIVED?

You are correct in that the entire process seems overwhelming. That is why it is important for you to concentrate and think back over the potential causes of your baby's injury. Any one of a number of factors due to your doctor's, midwife's or the hospital's negligence could be a factor in your baby's brain damage. Problems may develop during basically 3 stages: (1) during the pregnancy; (2) during labor; and (3) after birth. It is a lot easier to think of what you went through if you think of each one of these periods separately.

COULD YOU GO THROUGH SOME OF THE THINGS TO THINK ABOUT DURING EACH OF THE STAGES?

Of course. First, let's think about some of the problems during pregnancy that may affect your baby. The doctor must accurately calculate your due date (sometimes called EDC - estimated date of confinement). This is based on the first day of your last menstrual period. If this is not properly calculated, intrauterine growth of the fetus will not be monitored correctly thereby putting the baby and mother at risk for a serious problem. Previous complications during pregnancy and/or delivery may put the baby and mother at risk during the present pregnancy. Examples of previous problems would include cervical incompetence, premature labor and delivery, forceps delivery, and C-section. Your doctor should obtain this information by speaking with you and/or reviewing your previous medical/obstetrical records.

The doctor and his staff also have a duty to discuss genetic problems and provide counseling. Viruses and sexually transmitted diseases, as well as urinary tract infections must be treated to prevent injury to the developing fetus. Vaccine administration to the mom may also be necessary.

The mother should be monitored, whether considered high risk or not, for diabetes, high blood pressure, and vaginal bleeding. Uncontrolled high blood pressure can result in fetal brain damage. Diabetes causes overly large fetuses which the causes complications during delivery. Blood should be tested for elevated glucose around 24-28 weeks of gestation. A difficult delivery due to a large fetus in the birth canal can result in cerebral palsy or other anoxic injury to the baby's brain, brachial plexus syndrome, and other nerve damage such as Erb's Palsy among other problems.

Vaginal bleeding during the pregnancy may be a sign of premature labor or a problem with the placenta. (The two major placenta problems are "placenta abruptio," where the placenta separates from the uterus, and "placenta previa," where the placenta implants too low in the uterus). Placental problems interrupt blood and oxygen supply to the fetus that can result in brain damage. The mother could also die from excessive bleeding, so any bleeding during pregnancy should be immediately reported and must not be ignored or "brushed off" by the doctor or staff.

Other problems during pregnancy include deliveries past the due date (EDC), which are associated with perinatal death, and multiple gestations which are associated with prematurity and low birth weight. These latter situations are associated with cerebral palsy and mental retardation among other developmental problems.

There are other problems during labor that can affect your baby. The use of Pitocin, a drug frequently used to stimulate labor by causing the uterus to contract, can deprive the fetus of oxygen. This deprivation of oxygen can result in brain injury to the baby and/or may cause the uterus to rupture, especially in women that have had a previous C-section. When labor starts too early (i.e., before the EDC), it is referred to as "pre-term labor." If this cannot be controlled medically by the doctor, the baby is born premature. Prematurity is a leading cause of brain and developmental impairment. Another problem to think of during labor is the "premature rupture of the amniotic membranes" (PROM). If these membranes rupture more than 24 hours before delivery, life-threatening infection or death can result to the mother and/or fetus. Close monitoring, antibiotics, and possibly even a C-section are required.

Finally, problems after birth may result in death or neurologic damage if not quickly recognized and treated. These include infections, overly high bilirubin levels which can result in seizures (kernicterus), bleeding, anemia (low blood count), shock, prematurity, and congenital anomalies (such as abnormal connections between the chambers of the heart, or between the heart and lungs to name a few).

WHAT CLUES SHOULD I LOOK FOR THAT THERE MIGHT HAVE BEEN A PROBLEM WITH MY PREGNANCY AND/OR DELIVERY?

In general, think about what occurred during your follow-up throughout the pregnancy. Concentrate on what was said to and around you by the doctors, nurses, and staff. Terms at the time of delivery such as meconium staining, breech delivery, fetal distress, and abnormal heart rates including but not limited to decelerations are frequently used at the time of labor. These terms reflect different problems that tend to be serious and can be associated with fetal neurologic injury, brain injury, and death. Also, forcep and vacuum deliveries that may be used to help deliver the baby, can cause serious injury to the baby if not used correctly.

ARE THERE ANY SIGNS OF FETAL LACK OF OXYGEN TO THE BRAIN DURING LABOR AND DELIVERY?

Yes. Seizures in the first 24 to 48 hours of life may be a sign of fetal lack of oxygen. Infants are given a score, called an Apgar Score, at birth and 5 minutes later. This score is based on a number of factors. A low score may be an indication of fetal lack of oxygen to the brain during labor and/or delivery. Other signs of a problem due to poor oxygen supply to the fetus include weakness, decreased levels of arousability, breath holding (apnea), difficulty feeding with poor suck and swallow, and abnormal muscle tone. Also, at birth, the blood in the umbilical cord may be tested for acid in the blood. Too much acid will make the blood acidotic that can be a sign of lack of oxygen to the fetus. The test to check the acid level in the blood is referred to as the "cord pH." A low cord pH means there is too much acid in the blood.

IS THERE ANY WAY THAT THE HEALTH OF THE FETUS CAN BE MONITORED TO PREVENT TRAUMATIC BRAIN INJURY?

There are a number of tests that your doctor can perform to monitor the progress of the fetus. You must communicate all questions and concerns to your doctor and/or his staff to make them aware of a potential problem. Some tests that are done include a thorough physical exam, blood and urine tests, ultrasound, tests on the amniotic fluid (amniocentesis), and stress tests to determine how you and the fetus will do during the stress of labor.

DO I HAVE TO HAVE AN ATTORNEY?

Yes. In order to prove negligence, you will need to retain experts to testify on your behalf about what occurred, from a technical sense. The negligent party will then retain its own experts to contest everything that you say. The attorney will be able to help you find experts and cross-examine the other party's experts as well. It would be most difficult, if not impossible, for a non-lawyer to handle a newborn malpractice case.

HOW DOES MY ATTORNEY GEY PAID?

Most attorneys review potential malpractice cases on a contingent or percentage fee basis. This means that the attorney's fee will be usually a percentage of the amount recovered on your behalf. If there is no recovery, then you will usually not owe any fee to the attorney. Most attorneys will even advance the expenses needed to bring the case to trial, and then get reimbursed for those expenses from the recovery. All of these details regarding the fee and cost arrangements should be worked out with your attorney in advance, before any work is done on the case. You should review all of these details completely with the attorney and have the fee arrangements put into writing.

DESSEN, MOSES & ROSSITTO is happy to assist you in any legal matter that involves either Pennsylvania or New Jersey, the two states in which our attorneys routinely practice. If you wish to contact us for more information concerning this field of law or any other in which we practice, please send us an E-mail message and we will be happy to try to assist you.

LINKS TO OTHER INTERESTING INFO

DND Press
Learning Disabilities Association
Special Education Resources on the Internet
United Cerebral Palsy Association

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INFORMATION ABOUT BIRTH TRAUMA MALPRACTICE