Cerebral palsy lawsuit, but not from labor and delivery
Do lawyers focus too much on labor and delivery?
The name of this website is Birth Injury Cold Case. But, the phrase “birth injury” can be misleading. When some people hear that phrase, they think “labor and delivery” injury. While an unacceptable number of babies are indeed injured during the labor and delivery process, many meritorious cerebral palsy and child injury claims arise during other points in time. Some claims arise during the prenatal period. Some claims arise in the neonatal period.
Unfortunately, a lot of lawyers equate “birth injury” with “labor and delivery” injury. As a result, they focus too closely on the labor and delivery process during their investigation. When this occurs, cases can be missed, and they can go cold. Just like the case below.
Samuel is born with hypoxic-ischemic encephalopathy - HIE
Samuel Minor was born on July 7, 2011. At birth, Samuel was not breathing. His Apgar scores were 0, 0, and 1. He required aggressive resuscitation. To help him breath, the neonatologists caring for him put a breathing tube down his throat. Blood from his mother’s umbilical cord showed a significant metabolic acidosis. Because of his condition at birth, and the lab values from the umbilical cord, Samuel underwent total-body cooling for hypoxic-ischemic encephalopathy or HIE.
During the cooling period, Samuel’s legs started to twitch. An EEG was used to diagnose seizures. At 14 hours of life, a neonatal head ultrasound or US was performed. The US showed massive swelling on the brain.
Samuel was cooled for 72 hours. Thereafter, he was re-warmed. A post-cooling MRI of his brain showed significant brain damage. The injury to Samuel’s brain was a “watershed” type injury involving the frontal lobes of his brain. Samuel remained in the NICU for 104 days. In the days leading up to his discharge, Samuel’s parents were told that the prognosis was not good. Samuel was going to have cerebral palsy because of his damaged brain.
Samuel's parents hire a lawyer to investigate why he had HIE
Mr. and Mrs. Minor were devastated at what had happened. Samuel was to be the third (and final) edition to their beautiful family. They felt like something was not right. They wanted answers. So, they called a lawyer just before Samuel’s second birthday to investigate whether a medical error caused Samuel’s cerebral palsy.
Lawyer A had experience litigating birth injury and cerebral palsy type cases. When the case was opened in Lawyer A’s office, they began by ordering the labor and delivery records, Samuel’s newborn records, and the neuroimaging studies of Samuel’s brain.
The story that come from those records was as follows:
Mrs. Minor had a relatively uneventful pregnancy. She had routine prenatal care and went into labor at 38 weeks and 2 days gestation. On the morning of July 7, 2011, Mrs. Minor’s water broke. She packed her bags and went to the hospital. After going through registration, Mrs. Minor was sent to triage. In triage, she was hooked up to two devices – one to measure her baby’s heart rate, and one to measure her contractions. A vaginal exam showed that she was slightly dilated and in early labor. She was also having contractions.
But there was a problem.
Her baby’s heart rate was flat and showing some decelerations.
The nurses and doctor caring for Mrs. Minor tried to get the baby’s heart rate to perk up. They gave Mrs. Minor some juice. Then, the nurses moved Mrs. Minor from side-to-side. Oxygen was given to Mrs. Minor to see if that would improve things. However, nothing worked.
About an hour later, the decelerations in the heart rate became more pronounced and the doctors decided to do an emergency cesarean delivery. As stated above, Samuel was not breathing at birth, and was diagnosed with HIE, brain damage, and cerebral palsy.
Lawyer A tells the minors there was no medical malpractice
Prudently, Lawyer A sent the case to several obstetrical experts. All the experts agreed that the care Mrs. Minor received on the morning of July 7, 2011 was within the standard of care. Furthermore, one expert explained to Lawyer A that because the first head ultrasound showed swelling (also called cerebral edema), that the injury had occurred before Mrs. Minor came to the hospital on the morning of July 7th. Based on this information, Lawyer A informed the family that his law firm could not prove that any negligence or medical malpractice had caused Samuel’s injuries. The Minors were devastated.
Cerebral edema, HIE, brain damage and cerebral palsy
Before moving on to the rest of this story, it is a good time to discuss the role of neuroimaging in general. Over the past decade, neuroimaging (or brain imaging) has become a significant component of proving birth injury and child injury cases. Some experts (and lawyers) believe that if there is cerebral edema on neuroimaging within 24 hours of the delivery, then you cannot prove that a medical error during labor and delivery caused the brain damage. This is the so-called “24-hour rule.”
Interestingly, the 24-hour rule has no real basis in science. You cannot find this “rule” in any medical journal or textbook. In large part, it is just the belief of a small pool of defense-oriented neuroradiologists. For some reason, however, this unproven and unsupported theory has invaded birth injury litigation. Many lawyers are fearful of taking a labor and delivery birth injury case when there is brain edema on an ultrasound within 24 hours after the birth. This could be one of the reasons Lawyer A did not take Samuel Minor’s case.
Birth Injury Cold Case lawyers get the file
In early 2015, Mr. and Mrs. Minor reached out to the Birth Injury Cold Case team – i.e., the lawyers at Wais, Vogelstein, Forman & Offutt. The Minors were able to get a copy of their entire file from Lawyer A. It did not take long before the lawyers at WVFO realized what was missing.
Four days prior to Samuel’s delivery, Mrs. Minor had come to the hospital complaining of decreased fetal movement. At this visit, Samuel was monitored through electronic fetal monitoring. The records, which Lawyer A never obtained, showed that Samuel’s heart rate was non-reactive on this visit. Non-reactive means that the heart rate was not accelerating enough. When a tracing is non-reactive, the standard of care in this setting requires a biophysical profile or BPP. A BPP is an ultrasound test that scores on a scale of 0 to 8. The baby can get two points in four categories. Those categories are: (a) fetal breathing; (b) fetal tone; (c) fetal movement; and (d) fluid levels.
Shockingly, Mrs. Minor did not get a BPP at this visit. The doctors and nurses negligently told Mrs. Minor that the tracing was reactive and sent her home. Suddenly, the case got much easier.
WVFO sent the case to numerous experts. All the experts agreed. Mrs. Minor should have received a BPP on July 3, 2011. The experts also agreed that given what transpired on July 7th, that a BPP on July 3rd would have resulted in an earlier admission and delivery. In that scenario, Samuel would have been a perfectly health little boy.
The case was filed in 2015 and was eventually settled for a sum of money sufficient to help Samuel and his family for the rest of Samuel’s life.
CASE CLOSED.
