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Perinatal means "around the time of birth," and perinatal injuries
are those that occur to a fetus or newborn just before, during,
or after birth. The vast majority of calls we get on such cases
involve babies with central nervous system injuries that become
apparent at or shortly after birth.
The "Causation" Conundrum
In our firm's experience representing injured children there have
been many cases where we could persuasively prove that the health
care provider was negligent, so that two of the three key elements
of proof - negligence and injury - were clearly established.
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ACOG's "Plausible Link" Criteria
ACOG suggests the following criteria must be present
before a plausible link between perinatal asphyxia and neurologic
injury can be made:
- Profound metabolic or mixed acidemia (pH less than 7.00)
on an umbilical cord arterial blood sample, if obtained;
- Persistent Apgar score of 0-3 for longer than 5 minutes;
- Evidence of neonatal neurologic sequelae, eg, seizures,
coma, hypotonia; and
- One or more of the following: cardiovascular,
gastrointestinal, hematologic, pulmonary, or renal system
dysfunction.
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It is frequently the third element - "causation" -
that makes these cases risky, complicated and extremely expensive.
In cases of brain injured infants, proof of a cause-in-fact relationship
between the health care provider's negligence and the neurologic
injury (commonly including cerebral palsy), is always a challenge
for both sides. Plaintiff's counsel must establish the causal
link between the negligence and the injury, and defense counsel
will attempt to disprove or cast doubt on that link by offering
alternative causation explanations and possibilities. A common
scenario is an infant diagnosed with cerebral palsy following
a labor in which the fetal heart monitor recording shows one of
the classic fetal heart rate patterns that call for possible intervention
(i.e., decreased variability, repetitive late decelerations, prolonged
variable decelerations, sinusoidal rhythm, tachycardia, or bradycardia),
but where the labor is allowed to progress too long, resulting
in oxygen deprivation (hypoxia/ ischemia /asphyxia) to the fetus.
Another common scenario is the post-delivery failure of the nurse
practitioner, pediatrician, or neonatologist to adequately resuscitate
a severely depressed newborn so that the oxygen deprivation continues
and, presumably, injury is the result.
The "Other Cause(s)" Defense
Defense counsel often say that there was some pre-existing
injury, completed before labor ever began, which was the very
reason the fetus exhibited the abnormal fetal heart pattern in
the first place.
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Even if the defendant was negligent, the argument goes, it did
not make any difference because the outcome could not have been
changed even with the best of care. To support this position the
defendant will point out that 90% of all children with cerebral
palsy were not asphyxiated during labor or delivery, and that
most children who sustain hypoxia during labor or delivery do
not have cerebral palsy or neurologic injury. Defense counsel
can argue with a considerable weight of medical evidence that
even where both asphyxiation during labor and cerebral palsy are
seen together in the same child, that does not establish a cause-in-fact
relationship between the two.
In many cases, when one reviews
the medical records, a number of risk factors for cerebral palsy
may be found, all of which are candidates for the "other cause"
defense. Some of these include maternal mental retardation, maternal
albuminuria during pregnancy, maternal diabetes, maternal infections
(which are often not detectable clinically), breech presentation,
inborn metabolic disorders, prematurity, genetic defects, drug
abuse or effects, intrauterine growth retardation, injury from
maternal trauma, meconium aspiration in utero, trauma from appropriate
or inappropriate use of forceps, inadequate resuscitation after
delivery, newborn infection, blood disorders, and others. Defense
experts will usually point out that the most common cause of cerebral
palsy is "idiopathic," meaning medical science just does not know
the cause. Experts for obstetrician-
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