2019 Edition

Birth Injury Litigation: An Expert’s Guide

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D E B O R A H J . G A N D E R

BIRTH INJURY LITIGATION

PHYSIOLOGY

FACTORS COMPLICATING LABOR & DELIVERY

INLET: Top part of the true pelvis. The widest part of the baby's head must go through the pelvic inlet.

ISCHIAL SPINES: (Very important in evaluating the stations of the baby's head.) Stations are above and below this bony prominence. (Also the narrowest measurement in the female pelvis).

BIPARIETAL DIAMETER: Narrowest part of the baby's head (has to get through the pelvic inlet).

•When the bony part of the baby's head reaches the level of the spine, it has a very important obstetrical meaning. It means (1) the widest part of the baby's head has negotiated the pelvic inlet (the obstruction at the pelvic inlet) (2) this is zero station (the presenting part of the head has reached the `spine' and it is engaged). For every centimeter above the spine, you have a minus station (-1,-2,-3). For every centimeter below the spine, you see a plus (+1,+2,+3). At zero station or higher, assisted delivery by forceps or vacuum extraction should not be done. These would be "high forceps" or "high vacuum extraction". Contraindicated and negligent care to do it at zero or above — in the minus numbers).

Ischial Spines and Stations

HIGH FORCEPS: When forceps are used when baby is at zero or a minus station — contraindicated and negligent care.

HIGH VACUUM: When vacuum extraction is used at zero or a minus station — contraindicated and negligent care.

FLEXION: When normal vacuum extraction is used at zero or a minus station — contraindicated and negligent care.

CONJUGATE DIAMETER: Distance between the front projecting portion of the surface of the sacrum to the back of the pelvic bone. This should be evaluated as part of prenatal examination to determine if inlet has enough room for labor and delivery. Measured as the distance between base of thumb and end of middle finger. If not done, sloppy prenatal care. Also, are spines sharp or blunt? Should be known before delivery.

DESCENT: Should be about 2 hours in first baby — less time in second or later baby. Baby comes down, not in a straight line, but rather in a curve that reflects the curve of the pelvis (very important in forceps delivery).

CURVE OF CARUS: Curve of the pelvis that the child follows in descent.

ASYNCLITISM: Baby's head tilts front or back unevenly and slows down labor. Corrected by allowing labor to continue, stimulate labor, or use forceps to correct it (not a real bad thing, just slows down labor because baby's head is presenting diagonally. Very common).

UTERUS HAS 3 PARTS FOR LABOR PURPOSES:

(1)UPPER PART OF UTERUS: Strong muscular part that causes the muscle contractions and pushes the baby down.

(2)LOWER UTERINE SEGMENT: Thins out and stretches out to allow baby's head to come through (in usual c-section the incision is made here; so thin that must be careful not to cut baby).

(3)CERVIX: Part that opens in the vagina. Opens with the forces of labor pushing it from above and with some chemistry. •Certain rate of opening of cervix in a normal labor.

PURPOSE OF EXAMINATIONS IN LABOR:

1. Dilation of cervix (expressed numerically).

2. Thinning of cervix ( expressed in percentages). When completely thinned out or "effaced," it is thin as paper).

3. Is baby's head fitting and coming down? (Look at Station)

Example: 90/3+1

Cervix is 90% thinned out, open (dilated) 3 centimeters, and head is 1 centmeter below the spines. Patient usually would be expected to deliver.

C/C+3 = Completely dilated, completely effaced (thinned out), and head is +3 (3 centimeters below spine) and ready to deliver.

PLACENTA: Attached somewhere to wall of uterus. Maternal blood comes in, pools, and transfers oxygen to the baby through the umbilical cord. Baby's waste products go out the umbilical cord, to the placenta, and is absorbed by the mom. Placenta is a huge endocrine [ ] organ and acts as the lungs until the moment of birth.

UMBILICAL CORD: To be wound around neck of baby is normal. "Nuchal Cord" is normal. At least one wind is common in 25% of pregnancies. Two or three winds is not unusual. The winding comes from baby's movements in uterus before it gets into delivery mode. [But see below]

NUCHAL CORD: Important because as baby comes down the birth canal the cord can tighten and block blood flow to baby from mother. Monitor will show "fetal distress," such as variable decelerations. 1 in 4 infants is born with a nuchal cord. It is not necessarily a problem, but can make a cord problem worse.

VARIABLE DECELERATIONS: Real sharp spikes on monitor where it goes down and up, or may be a sharp spike down that stays down. Usually related to cord compression, but can also be related to head compression.

LATE DECELERATIONS: More gradual descents and slower rise than variables. Usually indicate a failing placenta. This child is running out of reserves!

CROWNING: Presenting part of baby's head is visible at the vagina without manually separating the tissue during contraction. Described as 25 cent piece or 50 cent piece, or 2 to 3 centimeters of crowning.

EXTERNAL ROTATION: Baby's head rotates to line up with the shoulders (as it is being born). https://www.youtube.com/watch?v=5gSAzw-iP0Q

ROTATION: sagittal suture — mid part of baby's head. (ex. 45 degrees or greater, or `up and down').

Types of Decelerations

Rule of 60s

Variability of the Heart Beat

SHOULDER DYSTOCIA:

*In a normal delivery, the shoulders are already beyond the obstructions of the bone.

BRACHIAL PLEXUS PALSY: ("HERBS PALSY") —Caused by pulling up or down on shoulders when they are stuck; causes stretching of neck and tearing of nerves in the brachial plexus. Paralysis of arm. Floppy arm that is rotated and the hand flips up.

WAITER'S TIPPING POSITION: The way the hand falls in Herb's or Klunkey's Paralysis.

If you have brachial plexus palsy, you can assume that in most cases there has been excessive force applied in the delivery. Some articles in literature (defendants) say this can happen in utero, too.

Most children do very well and will spontaneously heal and get full function back in 12-18 months. If injury lasts beyond 18 months, you can assume it is a permanent injury.

FORCEPS

FORCEPS: Safe when properly used, if mom is exhausted or baby is in a bad rotational position. Helps avoid cesarean section.

TRIAL FORCEPS: Not sure if forceps will deliver so must be prepared to do an immediate c-section. (Low forceps or mid forceps are not a bad thing).

CONVERGING FORCEPS: Crossed, and as the handles squeeze they compress the baby's head. They can injure the baby's head causing skull fracture, cutting baby's head or paralysis of facial nerve, or injury to jaw.

DIVERGING FORCEPS: As OB pulls on the forceps the blades come apart and are only held on baby's head by pressure of the mom's soft tissue. Very safe delivery.

Can get forcep injuries (fx skull, tail bone, soft tissue injuries) from pulling at the wrong axis (Curve of Carus).

MISAPPLIED FORCEPS: Should be applied down the sides of the head (along cheek), not front to back. (Look for sagittal suture) — Can penetrate the spine, brain, or crush the skull, can cut or scrape the face, eyes or nose, traction injuries with avulsions (rips) of the nose or part of the head.

Forceps being too high on the ear usually are why skulls get crushed.

STANDARDS

ACOG — has updates every month (recommendations, not standards).

MANUAL OF STANDARDS: Hospital information, time for c-section standards for monitoring.

Always request the hospital’s internal policies and procedures.*

ALWAYS 2 PATIENTS IN LABOR

Mom AND Baby

The obstetrician is responsible for both.

Improper forceps can tear the uterus, the bladder, or the vagina

TYPES OF BIRTH INJURIES

Numerous things can go wrong doing labor and delivery and result in birth injuries.

Failure to Timely Deliver

Most Common (usually by c-section)

Worrisome fetal heart tracings that indicate a child is being oxygen deprived and may in fact be becoming acidotic.

Significant organ damage can result, and the usual long-lasting results are seen as brain damage and significant motor deficits.

Child may be so damaged she will be considered “permanently vegetative.”

Vaginal delivery despite worrisome strips can be within the standard of care IF it was expeditious and seemed likely to be imminent when the strips started showing concerns;

However, the more likely method of delivery under those circumstances is by cesarean section.

Delay (anticipate and prepare)

Takes a while to get the Operating Room set up if the mother can deliver vaginally and relieve the oxygen

deprivation in the meantime, that is acceptable.

As soon as there are signs on the tracings indicating a cesarean section is likely to be needed, the doctor needs to call for an operating room to be set up so no further time is lost if things get more critical.

(Don’t send your anesthesiologist to prep a “non-emergent” patient.)

Shoulder Dystocia

One or more shoulders gets jammed against the pubic bone and does not deliver.

Several methods of relieving the impacting, but NONE include “fundal pressure.” Applying fundal pressure is below standard care and will

only serve to further jam the baby against the bone.

If the child is forced through the canal, a shoulder dystocia can quickly become a brachial plexus injury.

This can quickly become a hypoxic or anoxic event: you cannot pull the baby out; the baby cannot breathe because its chest is compressed by maternal tissue; the umbilical cord can't circulate, so you have a period of maybe two to four minutes to deliver the baby before you get asphyxic damage.

Asphyxic damage after shoulder dystocia is very common.

The doctor must have a plan in mind and execute it quickly. The doctor/midwife must know the warning signs of shoulder dystocia (what to look for) and know what to do when it happens

Placenta previa

Occurs when the placenta grows beneath the baby, blocking the opening to the cervix. (Like a stopper over a drain.)

The child cannot be delivered vaginally because it would perforate the placenta and cause the mother to potentially bleed to death.

The child also loses her oxygen supply with a hemorrhaging placenta and can herself suffer a grave hypoxic injury.

Whether the mother has a late-term placenta previa (they can be present early in pregnancy and move off of the cervix later, no longer posing a problem) should be identified by sonogram at least as of the 28th week (NEVER an unexpected situation if Mom had proper prenatal care).

Mom’s file should be documented accordingly and she should be instructed to inform all health care personnel with whom she comes in contact so that no one attempts a vaginal delivery.

Maternal bleeding when the mother has a placenta previa is an obstetrical emergency.

The child must be delivered by cesarean section immediately

EVIDENCE TO GATHER

Mom’s prenatal records (a lot of prenatal sonography can give early warnings of problems, or rule out pre-labor and delivery causes of problems), including the “Biophysical Profile”

Hospital records for the mother and child (prenatal, labor and delivery, and NICU)

Fetal Heart Tracings (EFM Strips) The strips tell a well-documented story about when and where, and for how long,

things were going badly for the child;

Base Excess (Normal is +3 to -3) Twelve or higher indicates acute injury during labor that resulted in severe

metabolic acidosis

pH Level (7.2 or lower indicates acute injury during labor (Acute Intrapartum hypoxia).

The lower the score, the greater the damage. 7.0 or lower is considered “severe acidosis”)

Make sure you get the reading for when it was FIRST taken, not the one taken after the child had been administered oxygen;

Make sure you get the umbilical artery line

MRIs (get every MRI taken in the neonate period)

Secondary hospitals to which the child was transferred (AND transport records).

Follow-up visits for child.

As the case progresses, you will want her school records and any “Individual Education Plans” the school system has instituted to help her deal with her disability.

LIABILITY

Look first at the obstetrician and labor and delivery nurse. If something went wrong, it likely went wrong on their watch while labor was progressing.

Use obstetrician and nurse experts you trust to give you an honest opinion, even if that means telling you this was a bad outcome but not malpractice.

Red Flags to Look for in Records

If neither your obstetrician nor nurse finds malpractice, you should probably have it looked at by a neonatology expert before you turn it down.

Failure to timely resuscitate or to timely administer antibiotics can result in devastating post-birth injuries.

Pathologist

Failure to timely report life-threatening fetal lab results can be the basis for liability

NURSING LIABILITY

Always look at their failure to invoke the Chain of Command if what the doctor ordered (or failed to respond to) put the mother or child at risk.

Nurses have an independent duty to question the medical decisions of the doctor if they put the patient(s) at risk, and to go to their charge nurse for help.

If the doctor will not listen to the charge nurse, both the labor and delivery nurse and charge nurse have an obligation to go to another obstetrician and seek assistance.

Nurses are not passive players in labor and delivery.

Be sure you get the hospital policies and procedures as they likely will have a specific protocol laid out for invoking the chain of command.

Question her in deposition about what specific information she gave the doctor (I told the doctor she was a 9+ centimeters and had not progressed to full dilation for over an hour, but said ‘let’s just watch.’

DOCTOR LIABILITY

Hypoxia or Anoxia: Start with the Strips. The developing damage will show on the strips, and you will need to correlate that with the labor records to see where/what the doctor was doing at those times.

If the child was born with a shoulder dystocia-caused injury, get the prenatal records, including sonograms that estimate fetal size, to see if the obstetrician or nurses had warning about the child’s size, particularly in relation to the mother’s size.

Question the Doctor in Deposition about what specific information the nurse(s) gave him.

“If the nurse had told me she was at rim and not progressing, I would have come in immediately and called a cesarean section.”

OR the nurses may have told the obstetrician by phone that the mother had moderate bleeding (not always an emergency), but without telling him she had a placenta previa (always an emergency).

DAMAGES

Fortunately, infants can suffer some very serious complications in labor and delivery and still go on to do well. For those who do not rebound, however, the damages usually are catastrophic.

PEDIATRIC NEUROPSYCHOLOGICAL EVALUATIONS

Can provide objective evidence of brain injury that is not obvious from the outside

Normed testing validated on tens of thousands of people over many decades

Gold Standard for Adults is “Halstead-Reitan” Battery. Some people substitute the “Heaton” or “Russell” norms These take into account age, gender, and other criteria

Variety of tests that are “mixed and matched” for children, depending on age and language ability

Most of these are protected from disclosure by copyrights and the professional code of conduct for psychologists.

If the opposing counsel wants the raw data, it can only be sent to another psychologist.

Specific tests for younger children

Built-in “malingering” detectors

Stress of timed testing can reveal injuries that are not obvious in short encounters of casual talk

Inability to tolerate frustration becomes pronounced Your neuropsychologist can explain this psychological component of

the injury and that it is a known result of brain injury, not evidence of an uncooperative or belligerent person

Some tests are not protected by copyrights, and it can be powerful to have your client videotaped trying to perform those.

I.Q. Testing is limited to intelligence whereas Neuropsychological Testing is more focused on function and ability Have a neuropsychologist explain this

Many people who do not score high on I.Q. tests still are very successful because of work ethic or creativity (both of which a brain injury affects)

Can recommend employment options and explain why “typical” employment (given the education she would have been expected to achieve) is no longer viable

Neuropsychologist will observe the child’s behavior toward the examiner as well as toward the measures utilized

Evaluate: child’s motivation, how he/she manages frustration, level of cooperation, social interaction, and behavior.

PEDIATRIC MILESTONES

Published by APA

Parents

Pediatrician

Therapists

Special Needs Educators

DAY IN THE LIFE COMPARISON

Do a Day in the Life Video of your client interacting with a “typical” child of the same age and gender.

The juxtaposition will be dramatic and heart-wrenching.

OUT OF POCKET EXPENSES

Medical Bills

Past

Liens, co-pays, deductibles, even interest on credit cards

Future

Have doctors, therapists, or office managers testify to cost of recommended procedures, therapies, and medications

Life Care Plan

Incredibly important in big cases

Relies on treating doctors, but also looks at “global patient” Doctors can have tunnel-vision for their own specialty

Gets feedback on recommendations

Puts together a report that prices the recommendations Economist uses these items and prices to create the overall economic

report of damages

Explains why these items are reasonable, necessary, and make a big difference in your client’s function and quality of life Equestrian therapy

Respite care

Explain why it is critically important to pay for stability and security (through an established service or agency) rather than paying a lower rate for “a friend of a friend.”

VOCATIONAL REHAB PLAN

Very important in large cases to explain why someone can no longer work in their previous job capacity, and/or will not be able to advance

Can recommend possible employment opportunities still available

Gives rates of pay for former occupation and expected advancement if no injury, and also gives the pay rate (including advancement) for the jobs now available

Economist will use these numbers to price the loss of future earning capacity

OPPONENT’S VOC REHAB PLAN

Cross-examine on whether the “available jobs” take into account all of your client’s deficits, including speech, language abilities, executive function, hand dexterity, and all else.

Thank you.