Articles Posted in Birth Injuries

Learn about birth injury lawsuits and how to maximize the value of these claims for your child.

Last week, I summarized a recent bench trial in a birth injury case.  I find these bench trial decisions to be extremely useful and informative. They provide a unique perspective on what facts and testimony really matter in a birth injury case. In a jury trial, you just get a verdict. You do not get any meaningful explanation as to what mattered and why. Appellate opinions focus on the law and not so much on the resolution of factual issues. These bench trial decisions are like detailed case studies that allow us to see how the facts were presented by each side, how the expert testimony was weighed, and exactly how the fact-finder reached their decision.

So I looked for another birth injury case with the judge as the decider of fact. I found Coleman v. United States, 200 F. Supp. 3d 1350 (M.D. Ga. 2016), another Memorandum Decision from a birth injury bench trial in federal court.

The plaintiffs filed suit on behalf of themselves and their injured child, J.D. The healthcare providers involved in this birth injury case were employees of a federally funded health clinic in Albany Georgia. The federal government assumes liability for malpractice claims against federally funded clinics, so the United States was the named defendant.

This week I was reading through recent appellate decisions from birth injury cases across the country and I came across a unique written decision from the federal court in Chicago in Zhao v. United States 2019 WL 3956412 (S.D. Ill. 2019).

This was a fairly typical birth injury case in which the baby suffered nerve damage due to a failure to diagnose fetal macrosomia and the mishandling of shoulder dystocia during delivery. What makes this case somewhat unique is that unlike most birth injury cases that get tried by juries, this case was resolved with a bench trial in the U.S. District Court for the Southern District of Illinois (because it was against the United States in this case).

At the end of the trial, the judge awarded the plaintiff $8.2 million in damages, but more importantly he wrote a very detailed Memorandum and Order basically analyzing the entire case.

Fetal macrosomia is a medical term that means fetal weight at birth is greater than 4000 grams (8 lbs. 13 oz). Compared to the size of other newborns of the same gestational age, this is considered excessive fetal growth. Your doctor will be concerned with the baby’s probable weight at delivery for a few reasons and should want more testing to be done.

Fetal macrosomia is a serious condition in pregnancy. It is well recognized in the medical literature that a major concern in the delivery of a macrosomic baby is shoulder dystocia and the attendant risks of permanent brachial plexus palsy. It requires close monitoring and frequent visits to the doctor’s office. But the reward is a healthier baby at delivery and sometimes a healthier mother, too.

Why is Fetal Macrosomia Important?

Medically induced cooling of the brain can help treat damage. This relatively new procedure — the FDA approved it a little over 10 years ago —  provides the opportunity to treat babies who are suffering from hypoxic brain damage as a result of perinatal asphyxia.

We don’t totally understand exactly why brain cooling works although there are many theories that make perfect sense that are floating around out there.  But, ultimately, who cares why it works.  It appears to work on not only the brain but other vital organs that have been harmed from oxygen deprivation.

At this point, I don’t know why any hospital with a NICU would not have the ability to use cooling to protect an infant from brain damage.

Women experiencing typical pregnancies are not offered the option of inducing labor at 39 weeks.  That might change.

A recent study funded by the National Institutes of Health (“NIH”) suggests that electively inducing labor 1 week before the due date decreases the risk of complications and lead to a safer delivery.  New mothers whose labor was induced in week 39 (instead of waiting for labor to begin naturally) were less likely to require a C-section and had lower rates of preeclampsia and other complications.  The research also established inducing at 39 weeks did not increase the chances of stillbirth or other severe complications compared to mothers who were not induced.  The detailed results of this pivotal NIH study were just published in the New England Journal of Medicine: Labor Induction versus Expectant Management in Low-Risk Nulliparous Women.

malpractice-7It was previously believed that early induction of labor significantly increases the likelihood of an emergency cesarean delivery in response to complications.  This made many doctors reluctant to induce any time before 40 weeks, but no comprehensive study had ever been done before.  The Pregnancy and Perinatology Branch at NIH funded the study in an effort to fill this data gap.

A neonatal stroke (also called a perinatal stroke) is defined as an interruption of blood flow to an infant’s brain that occurs between 20 weeks gestation and first 28 days after the child is born. Neonatal strokes can be ischemic or hemorrhagic. Ischemic neonatal strokes are caused by some form of blockage in the blood vessels. Hemorrhagic strokes occur when blood vessels rupture and bleed.

What causes a newborn to have a stroke?

Neonatal strokes are the result of some event within the body that suddenly disrupts the normal flow of blood to the baby’s brain. In adults, the underlying causes leading to a stroke are usually high blood pressure, diabetes or some other condition.

In June 2018, a study was published in the Canadian Medical Association Journal which shows there has been an alarming increase in the rate of birth injuries resulting from forceps-assisted deliveries.  This does not surprise me because our obstetrician experts have been telling us for years that the new generation of obstetricians does not have the skill to use forceps.  If too much pressure or force is used, forceps can cause injury to both mother and baby.

What Are Forceps?

Obstetrical forceps are a surgical tool used by OB/GYNs to assist in difficult vaginal deliveries.  The forceps look like large plyers with metal spoons at the ends.  The spoons are used to basically grip the baby’s head so that the doctor can then manually maneuver the baby through the birth canal.  Sometimes, birth injury lawyers unfairly vilify forceps. But forceps are a very effective weapon with the right obstetrician.  The problem is they require a high level of skill and experience by the doctor.

Caput succedaneum and cephalohematoma are similar – but distinct – birth injuries that cause a baby’s head to swell. They are typically not serious and will heal themselves over a relatively short period.

My Child Has Caput Succedaneum and I’m Worried

For most concerned parents, you should know that caput succedaneum and cephalohematoma are not a big deal if they are not coupled with a brain bleed or other cerebral insult. So many people reading this are parents who have been told their child has caput succedaneum. When it is your newborn child — and I have four myself — it is easy to panic. But the good news is that in the vast majority of cases, caput succedaneum ends up being insignificant.

Infant torticollis is a condition in which the neck alignment of a newborn baby is abnormally twisted forcing the chin to point upward while the head tilts to one side.  This condition is sometimes referred to as “loxia” or “wryneck.”

Torticollis is most frequently caused by physical trauma during childbirth.  Approximately 1 out of every 250 babies born in the U.S. are affected by infant torticollis.

Many believe that torticollis is an injury that stems from a difficult delivery — which is often avoidable if the doctor meets the standard of care — that is also responsible for the brachial plexus palsy.

I stumbled across a just brutal 9th Circuit opinion in S.H. v. United States earlier this year. This case reversed a $10 million verdict in a birth injury case, finding that the foreign country exception bars plaintiffs’ Federal Tort Claims Act (“FTCA”) malpractice claims against the military doctors who treated the mother and child.

law-and-justice-300x200Facts of S.H. v. United States

A U.S. Air Force Master Sergeant is transferred to Spain.  I don’t know if he wanted to go to Spain but it does not really matter, right?  He was ordered to go to Spain.  Before leaving for Spain, they go to Andrews Air Force Base so the military can verify that the family is medically suitable to travel overseas.  At Andrews, he and his wife learn they are pregnant with their third child.  She had experienced two prior preterm deliveries and a miscarriage in the past.

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