Premature Baby, Brain Bleeds – Lawsuit?
Can a lawyer prove that that injuries from prematurity or premature birth were caused by medical malpractice?
Prematurity (or premature birth) can absolutely be caused by medical error. For a long time, however, lawyers did not take cases involving premature babies. In fact, many still do not. The thinking is prematurity is unavoidable and unpredictable. This is wrong. In many instances, premature birth is avoidable with proper care. The flip side is that premature birth can be caused, or accelerated, by improper or negligent care. Moreover, premature babies who were destined to be born premature can also suffer brain injury from medical error.
A good example of a premature birth leading to a lawsuit is failing to place cerclage. A cerclage is a stitch placed in the cervix to help keep the cervix closed during the pregnancy. In most cases of cervical incompetency, a cerclage works. What is meant by “works”? Well, it depends on what studies you read. But there is widespread agreement that in certain circumstances (i.e., an ultrasound indicated cerclage in a singleton pregnancy) a cerclage can extend the pregnancy to avoid delivering a “micropremie.” A micropremie is a baby who is born weighing less than 800 grams. Even with the best care, these babies can suffer brain bleeds, periventricular leukomalacia (PVL), developmental delay, autism and cerebral palsy.
If an obstetrician or perinatologist fails to place a cerclage when one is required, and a baby is born severely premature as a result, this could give rise to a lawsuit.
Bradley is born almost 4 months premature and develops cerebral palsy
On March 17, 2015, Bradley Green was born at 25 weeks gestation. His birth weight was 681 grams. He was a micropremie. Unfortunately, Bradley really struggled after he was born. He spent 166 days in the NICU. There, he was diagnosed with grade 3 and grade 4 brain bleeds. As a result of those brain bleeds, Bradley was diagnosed with cerebral palsy right around his first birthday.
Naturally, Bradley’s mother, Ms. Green, felt that something was not right. So, she called Lawyer A to investigate her case.
Lawyer A investigates whether Bradley's brain bleeds and cerebral palsy were from medical malpractice or premature birth
Lawyer A began by obtaining all the medical records. Her office had extensive experience handling birth injury lawsuits. For almost two years, Lawyer A investigated Bradley’s case. In the end, the decision was that Bradley’s premature birth and brain bleeds were unavoidable and not the result of any medical error. Lawyer A sent Ms. Green a letter detailing why she and her law firm were rejecting the case. But none of it made sense to Ms. Green.
To cope with the difficulties of raising a child with Bradley’s disabilities, Ms. Green joined an online support group. One of the members of the support group had been represented by the lawyers at Wais, Vogelstein, Forman & Offutt – the lawyers who make up Birth Injury Cold Case. This member urged Ms. Green to contact to WVFO to see if the case could be solved. At first, Ms. Green decided not to contact WVFO. She asked herself: “If one law firm turned me down, why would another law firm be able to help?”
Eventually, in early 2018, Ms. Green reached out to WVFO. A new investigation was quickly underway.
The Birth Injury Cold Case solves the case
The Birth Injury Cold Case team was able to get the records from Lawyer A. Thankfully, the records were complete, and no records were missing. The lawyers at WVFO began theorizing the case. It became apparent that Bradley’s injuries were solely attributable to his prematurity. His brain damage was not caused by an intervening medical error. It was caused by his prematurity. Therefore, the question became whether Bradley’s premature was caused by medical error or medical negligence.
Ms. Green had a complicated obstetrical history. She had three prior pregnancies. Her first pregnancy ended in a miscarriage in the first trimester. She delivered a beautiful baby girl the second time around. For the pregnancy right before Bradley, she went into pre-term labor at 21 weeks gestation. Sadly, her baby died two hours after being born.
For her pregnancy with Bradley, Ms. Green sought the care of a high-risk obstetrician (or perinatologist). This OB, Dr. Smith, worked at an academic hospital in a major urban center. Dr. Smith obtained all of Ms. Green’s prior prenatal records and was aware of her past obstetrical history. Shockingly, and in violation of the standard of care, Dr. Smith did not put Ms. Green on 17-P or progesterone.
Progesterone is a steroid that helps prevent premature birth. According to the medical literature, progesterone prevents pre-term birth in women with a prior history of pre-term birth between 20 and 36 weeks gestation.
The standard of care has required the use of progesterone in patients like Ms. Green for 8 to 10 years. Again, there was no explanation as to why Dr. Smith did not start Ms. Green on progesterone.
How did Lawyer A miss this issue? We do not know, and it does not matter. However, this is a great example of how Birth Injury Cold Case solves these cases.
A lawsuit is filed on behalf of Bradley
In May of 2018 a lawsuit was filed on behalf of Bradley. The care at issue was unacceptable. As such, the defense put up little fight. the case settled in early 2019 for an amount of money that should ensure that Bradley will have the highest level of care for the rest of his life.
CASE CLOSED.
