There is a distinction between a complication and negligence. Pregnancy itself is fraught with natural complications which are unavoidable, but negligence involves a breach in the standard of care by the medical professionals who’ve been trusted to provide a safe delivery. Complications themselves are not medical malpractice, but the following bullet-points of negligence are. Negligence, or malpractice, often occurs during childbirth when one or more of the following occurs:
- There is a lack of awareness of the complications that should be obvious to any adequately-trained and responsible healthcare provider who manages pregnancy, labor, delivery, and the postpartum period.
- Not having a response plan in cases in which a complication is anticipated.
- Ignoring warning signals for future, imminent or on-going complications.
- Improperly addressing complications.
- Inadequate follow-up of a patient warranting appropriate surveillance.
- Desertion (lack of availability to an established patient during ongoing events).
Babies are tough. It takes a lot to hurt them, but negligence in managing labor and delivery is enough to do this, because these processes are a balance between a forceful physiologic passage (birth) and the survival of the passenger (baby). A complication throws a wrench into the works, but today’s standard of medical care safeguards—to the extent possible—that passenger. Negligence, on the other hand, partners with complications to stack the deck against the baby.
In his 1856 poem, Maud Muller, John Greenleaf Whittier wrote, referring to the protagonist’s life burden:
“For of all sad words of tongue or pen,
The saddest are these: ‘It might have been!'”
Preventable birth injuries are unfair to both the baby and his/her entire family and can be a lifelong, relentless alternate life to that envisioned by the parents. The affected child has a lifetime of affliction, often outliving parents, worsening societal obligations. These are the considerations that form the basis for compensation—fair compensation—for preventable injuries that have replaced what “might have been.”
Types of Birth Injury
Neurological Injury (Neonatal Encephalopathy)
Normal labor consists of contractions of the uterus (womb) that are organized not only rhythmically but in a vector force—outward—to push the baby through the birth canal. During these contractions, blood flow in the uterus (and at its interface with the placenta) stops, giving the unborn baby a brief period of hypoxia (low oxygen), which then resolves when the uterus relaxes between contractions. Every baby has its own “reserve” of how much hypoxia stress can be withstood, and babies that are compromised even before labor or that become fatigued during labor may show signs of incomplete recovery with deterioration to follow. When this happens, metabolic acidosis occurs (pH of the fetal blood goes lower), and its severity is directly tied to neurological injury. Today a baby’s pH is officially determined by drawing blood from the umbilical artery at birth.
Fetal heart rate tracings offer an unofficial glimpse into fetal acidosis. The heart varies in its rate of contractions from moment to moment. This is normal function of the sympathetic and parasympathetic branches of the autonomic nervous system—that part that regulates homeostasis (i.e., the balancing of physiologic processes to maintain stability of metabolism). The value of fetal heart rate tracings is that when they are documented as normal, one can reasonably assume that adequate oxygenation of the baby’s brain is occurring.
When is Neurological Injury a Result of Negligence?
In 2003, the American College of Obstetricians and Gynecologists, together with the American Academy of Pediatrics, issued it controversial joint ACOG/AAP template of evidence for acute intrapartum hypoxia in a large series of cerebral palsy cases. This proved a bane to plaintiff’s attorneys because it concluded that:
“no case of cerebral palsy could be solely explained by an acute intrapartum hypoxic event…” and that “there are nearly always antenatal pathologies or other events that would have contributed to a cerebral palsy outcome.”
The burden of proof shifted from injury during birth to allowing a baby previously injured to suffer an intolerable labor challenge. In a way, the spirit of the fight for the baby’s and family’s rights didn’t change, because either way there was a preventable component—totally in the prior way of thinking, “more likely than not” in the post-2003 ACOG/AAP world.
Every baby has his/her own reserve, beyond which will stress the system and jeopardize survival. Although severe harm could have evolved before labor and delivery, further challenging an injured child is negligent. While those who argue all the harm is done before birth, there is the disturbing fact that fetal heart tones can progress to demonstrate dysfunction of the autonomic cardiac influences from the baby’s brain in real time, indicating lack of perfusion and establishing cause and effect: intolerance to labor causing dangerous, deficient changes in brain oxygen, which of course is a time-sensitive urgency.
Therefore, neurological injury is considered negligence in the following circumstances:
- Allowing labor to begin or inducing labor when there is documented a prior abnormal stress testing (oxytocin challenge test, in which limited stimulation of contractions is initiated to observe for non-reassuring fetal heart rhythms) and/or an abnormal prenatal profile of combined ultrasound abnormalities and non-stress/stress testing.
- Allowing labor to continue during times of non-reassuring fetal heart rate rhythms (unless delivery is imminent).
- Allowing the augmentation of labor during times of non-reassuring fetal heart rate rhythms; continuing labor augmentation during times of non-reassuring fetal heart rhythms. This increases the pool of defendants, because every hospital has a labor protocol that mandates cessation of augmentation/induction in the presence of non-reassuring fetal heart rate rhythms.
- Failing to perform Cesarean “rescue” of an unborn baby with non-reassuring fetal heart rate rhythms (specifically, late decelerations and loss of beat-to-beat variability), unless delivery is imminent.
Traumatic Birth Injuries
Birth is a natural process, but when excessive force is used or when the constitution of the baby makes passage through the birth canal too forceful, trauma can occur. The most common causes of trauma during the birth process are breech presentation, large-for-gestational age (LGA) babies, and small-for-gestational age (SGA) babies.
The normal most-frequent presentation for delivery is with the baby delivering head first. This is called “vertex” presentation. Anything else is termed a “breech” presentation, and breeches at term constitute 3-4% of all presentations at term.
The advantage of a vertex presentation is that the head is the largest part of the baby to navigate the constraints of the birth canal, so that when the head delivers easily, the rest of the baby is likely to follow (except for shoulder dystocia—SEE BELOW).
When the head is not first, ever-larger challenges to successful passage ensue during the birth process. A head that might have difficulty even in a vertex presentation—when breech–may cause the head to get stuck inside the mother’s pelvis, with the rest of the baby—including a compressed umbilical cord—hanging out of her. Efforts to deliver such an “after-coming” head increase the risk of mechanical damage due to forces used by the attendant in a desperate situation, i.e., skull fracture, intracranial bleeding.
Even when such forces of a frantic attempt at delivery are not imposed externally, forces on the baby’s head internally—before the birth canal has fully elasticized to allow smooth passage—can result in a sudden compression/decompression of the fetal head with uncertain results. Therefore, the decision to deliver a known breech vaginally is fraught with danger, especially since the only reliable measure of success is successful delivery, but after the fact. Randomized trials have shown that neonatal complications are higher in planned vaginal versus planned cesarean breech birth.
Estimates of fetal size are relied upon to make the decision for vaginal delivery of a breech baby, but estimates are notoriously unreliable, since the algorithms used to compute measurements become vary untrustworthy nearer to term.
Since all breech presentations simply mean non-vertex, there are a variety of them based on how the baby is positioned: buttocks first, single leg first, both legs first, an arm first, a shoulder first, etc. A baby that is transverse, with no presenting part, is also a breech, and requires internal manipulations to force the baby into a manageable vaginal delivery, risking mechanical damage. Limbs or shoulders that present also require manual manipulation, and force can cause limb fractures or brachial plexus nerve injury.
A successful delivery requires a “dilating wedge” to dilate the cervix (mouth of the womb) for exit. In a breech, the buttocks can do this, but it’s not as complete a dilation as with the head, so all breech births risk head entrapment of the after-coming head, either because of an absolute disproportion between the head parameters and the maternal pelvic measurements; or a relative disproportion, e.g., incomplete dilation.
LGA: Large-for-Gestational-Age (“macrosomia”)
LGA: Large-for-Gestational-Age (“macrosomia”) babies are defined as having weight estimates over 4,000 gm (8# 13 oz)—less if the mother is diabetic. Some use 4,500 gm (9# 15 oz) as the cut off, since this is the point at which injury probability rises. The mother’s pelvis stays the same but the baby keeps growing, so size matters. If the baby is too large to enter the maternal pelvis, delivery won’t occur. If the baby is small enough to navigate the maternal pelvis, delivery should occur. However, there is a gray zone of “relative” incongruency between fetal head or fetal shoulders and the maternal pelvis, problematic at the pelvic outlet (the last part).
This may result in situations in which the attendant feels committed to delivery and braves the use of forceps or vacuum extraction. Alternatively, a head that is “tight” in the vagina may deliver fine if allowed enough time of Stage 2 of labor (after complete cervical dilation), but non-reassuring fetal heart tones, more common in macrosomic babies, mandate an expedited delivery. Skull fractures, scalp avulsions, and intracranial hemorrhage result from such drama.
SGA: Small-for-Gestational-Age infants are either premature or they have had development difficulties due to impaired placental circulation/impaired growth—intrauterine growth restriction (IUGR).
- Prematurity is any baby before 36-37 weeks—generally before the lungs are mature enough to handle the outside world and breathe the air effectively. The fetal skull in a premature baby is very flexible and risks damage by the natural compressive/decompressive forces of delivery, manual handling in a Cesarean delivery, or forceps/vacuum head trauma.
- IUGR: Impaired growth can occur in any baby which is not properly nourished/oxygenated by the placenta. A placenta can fail to satisfy the customary needs due to diabetes, cocaine/methamphetamines, smoking, hypertension, and other vascular injury within it. An IUGR SGA baby is particularly vulnerable to the stresses of normal labor and have very limited reserve to tolerate it.
Both premature and even term SGA babies have limited reserve to stress and can sustain neurological injury.
The baby’s shoulders, when pushed against the pelvic outlet bones a certain way, can jam up and prevent the rest of delivery. Unfortunately, the baby’s head is out during this time and the clock is ticking. Also, umbilical cord compression and fetal neck vessel compression (cerebral venous obstruction) can cause asphyxia and neurological injury. (See above). The highest risk for shoulder dystocia is a history of having suffered a shoulder dystocia with a previous pregnancy.
Brachial Plexus Injury
Another risk is damage to the brachial plexus of nerves that control the arm. Excessive pulling on the head to effect delivery during this true emergency can stretch these nerves and injure them irreparably.
When is Traumatic Injury the Result of Negligence?
Trauma is a mechanical phenomenon, and preventable when warnings are not heeded. Therefore, traumatic birth injuries are considered negligence in the following circumstances:
- Allowing an LGA baby to continue laboring with evidence of a relative disproportion between him-/herself and the mother’s birth canal. Babies too large to pass will become exhausted and their reserve will fail, leading to neurologic injury; or will deliver traumatically. Evidence of a baby too large for his/her mother includes protracted labors and arrest of descent (stopping all progress altogether). Once past 6 cm dilation, lack of progress for 4 hours in a laboring woman with adequate contractions and with ruptured membranes is evidence of a protracted labor; or alternatively, longer than 6 hours in an augmented/induced labor (again, at or beyond 6 cm, adequate contractions, and ruptured membranes. Labor dysfunction in LGA babies also portends for shoulder dystocia, although most shoulder dystocia occurs without any risk factors. Nevertheless, if there are risk factors that are ignored (e.g., previous shoulder dystocia) and a shoulder dystocia results in asphyxia/neurologic injury or brachial plexus injury, it is difficult to defend.
- Allowing vaginal delivery with a protracted labor and a maternal history of previous shoulder dystocia. Having no logical stepwise plan of progressive maneuvers in the case of a shoulder dystocia.
- Choosing to deliver a breech baby vaginally in spite of the following concerns:
- Mother’s first baby—that is, an “unproven” pelvis.
- Baby is other than a frank or complete breech.
- Prior C-section.
- Fetal anomaly.
- Estimated fetal weight > 2000-2500 gm.
- Gestational age < 36 weeks.
- Requires induction.
- Lack of experience in vaginal breech delivery.
- Choosing to ignore contraindications for vaginal delivery in spite of ultrasound implications of an LGA baby, necessitating risky operative (forceps/vacuum) delivery. When the estimated fetal weight is > 4,500 gm (>4,000 gm in diabetic mothers).
- Improper use of forceps and/or vacuum. Like any medical device, there are safeguards for their proper use. For forceps, the higher the fetal head in the birth canal, the more the likelihood of fetal head trauma and serious soft tissue trauma to the mother. Current standard of care includes criteria for forceps applications that, when breached, constitute negligence.
- Fetal head trauma includes skull fracture, subdural, epidural, and intracranial bleeding.
- Maternal trauma due to exceeding the elasticity of the tissue of the vagina, rectum, and other tissues can result in hemorrhage immediately and lifelong sexual and pelvic pain after delivery.
Infectious injuries are prevented prenatally. Failure to identify infections can jeopardize a baby’s development, reserve, or successful delivery. Amnionitis is infection of the uterine cavity housing the baby and placenta.
- Group-B strep
- Herpes simplex
When are injuries due to infection the result of negligence or malpractice?
- When the recommended screening tests for Group-strep and Toxoplasmosis are not done or done improperly.
- When patient reports of decreased fetal movement are ignored.
Attacks on the baby can occur before or after birth.
Meconium: when a baby is stressed in the uterus (it is theorized), an attempted reflexic gasp for breath depresses the diaphragm and can squeeze out the intestinal contents into the amniotic fluid. The lungs are collapsed, so neither a real breath nor aspiration of the material— “meconium”—can take place. However, when the first effective breathing occurs at delivery, any meconium in the throat can enter the lungs and the chemical nature of it is very toxic, causing pneumonitis, a life-threatening pneumonia.
ABO Incompatibility: this is a concern when the mother is Rh-Negative and the father is Rh-Positive, a recipe for bad blood mixing. It is primarily a concern with a second pregnancy, because these two blood types are separated until delivery, when the baby is safely out of harm’s way. A blocking antibody shot of Rho(D) immune globulin can be administered to defuse this immunological melee. Negligently ignored (or immune globulin not given), the second baby can lose red blood cells to attack by antibodies before birth, which is life-threatening.
When are toxic injuries due to negligence?
- When meconium is noted in the amniotic fluid before delivery and the well-established protocols are not followed to minimize pneumonitis. (Meconium at the time of delivery is normal—everything gets squeezed in a delivery.)
- When the blood type of an expectant mother is not determined in the first trimester and the fetus shows signs of severe anemia in the uterus (“hydrops fetalis”).
- When Rho(D) immune globulin is not given to an Rh-NEG mother when the father is Rh-POS.
Simplistically, birth injury boils down to this question: Was it preventable?
Birth injuries happen by sheer accident, unforeseen misfortune, or sudden mishaps of pregnancy, labor, and delivery. However, any adequately trained healthcare professional should be able to prevent all preventable injuries, and when he/she does not, it is negligence and subject to discovery. These unfortunate instances require a thorough review of the medical records to determine whether the injuries were the result of natural complications or negligence. For help with your legal case, contact medical malpractice lawyer, Prosper Shaked today. Prosper Shaked Accident Injury Attorneys PA offer free legal consultations on new cases. Call 305-694-2676 today to schedule your consultation and learn more about your right to pursue a medical malpractice or wrongful death claim.