Evaluation of a Birth Injury Case III

Any attorney contemplating a birth-injury case must anticipate the defenses, both legitimate and illegitimate, that can be raised in such claims. Indeed, an intelligent decision to undertake a birth-injury claim cannot be made without an examination of all the various factors that make it more or less likely that the claim will succeed. These factors can be clinical, scientific and theatrical. In this issue I will speak only to the clinical and scientific factors that play an important role in the prosecution and defense of birth-injury claims.

The clinical management of a pregnancy or delivery is not unlike the clinical management of other conditions in disease and in health. While almost invariably, an anticipated or expected course exists, there are also anticipated or expected variations from the usual course. There are melodies and there are variations. A skilled and careful listener should readily recognize the harsh note or a change in key or rhythm.

Similarly, a pregnancy has a usual course. Gestation is generally 40 weeks and the course of gestation is considered normal unless the period of gestation is significantly shorter or longer. However, even if the period of gestation is either significantly shorter or significantly longer, a healthy, normal baby usually is born. A post-dates (prolonged) gestation at 42 weeks, plus, is a pregnancy at greater risk than a pregnancy at 40 weeks gestation but it is, nevertheless, the case that the overwhelming majority of post-dates children at 42, 43 and even at 44 weeks gestation are born without permanent adverse consequences. The same can be said of children who are born prematurely. The advances in neonatal medicine now make it possible to predict that the majority of children born at 26 weeks gestation will survive without permanent harm.

The different approaches in managing pregnancy, labor and delivery that are undertaken for prematurity, post-dates, or other disorders, are crafted in recognition of the specific risks for each individual situation with a view toward reducing or eliminating those risks. Nevertheless, defense experts in birth-injury cases will commonly condemn or trivialize those measures universally employed to reduce the risk of injury to mother and child. For example, electronic fetal monitoring is the standard of practice in the United States. It is the gold standard by which any other form of monitoring must be measured. Nevertheless, defense experts will routinely deride the significance of ominous fetal heart tracings unless an "ominous" meaning is consistent with the defense of a particular health care provider.

Electronic fetal monitoring is a very sensitive indicator of fetal well being. It is however a better indicator of distress than it is of fetal injury. It's value as a monitoring device is based on its great sensitivity. Health care providers who ignore the warning provided by traditional ominous fetal heart monitoring patterns do so at the peril of their patients (and at their own peril in court).

The causation defense of birth-injury cases has evolved over the years and is, in fact, constantly changing. Whereas, once the causation defense was restricted primarily to the type of the injury produced and the condition of the baby at the time of birth, today the defense touts a variety of theories that purportedly enables their experts to not only accurately predict the time when a birth injury occurred, but to always find that time for preventing injury by medical intervention is essentially non-existent. The window of time during which intervention might help is always before or after any defendant had any possible opportunity to act.

The "narrow window" defense has many disguises. These disguises are based on defense experts' claims as to either the mechanism of injury or the timing of injury.

Legitimate defenses exist within the mechanism of injury defense. For example, a completed embolic stroke occurring in utero is a rare but unheralded event and the injuries caused by it are not preventable. True congenital brain disorders such as trisomy 21 are sometimes preventable by prenatal and/or genetic counseling and testing but are not a result of the labor process. However, it is popular today for a defense expert to claim that intrauterine infection "chorioamnionitis" causes injuries in utero by a mechanism that cannot be identified by health care providers prior to injury occurring and that such injuries cannot be prevented. This, in my view, is an illegitimate claim.

The scientific evidence for brain injuries resulting from an infection in the amnion is limited. [Neurologic sequelae of streptococcal infection are beyond the scope of this paper.] It is important to be aware, however, that authors such as Grether and Nelson, have claimed in the literature that chorioamnionitis is a risk factor for neonatal outcomes commonly attributed to birth asphyxia.(1)

Fortunately, in August of 1999, a massive retrospective cohort study published out of the University of Texas, Southwestern Medical Center, Dallas, Texas, provides strong evidence to the contrary. A total of 101,170 term infants were analyzed. Fully 5% of the infants were born to women with chorioamnionitis (5,144). After adjustment for confounding factors, it was clear that neurologic morbidity was not related to maternal infection during labor but rather was significantly related to other labor complications.(2)

Next: Evaluation of a Birth Injury Case Part IV

 

¹ Grether, J.K., Nelson, K.B., "Maternal Infection in Cerebral Palsy in Infants of Normal Birth Weight," JAMA 1997; 278: pp. 207-11.

² Alexander, J.M., McIntire, D.M., and Leveno, K.J., "Chorioamnionitis in the Prognosis for Term Infants," Obstetrics and Gynecology, Vol. 94, No. 2., August 1999, pp. 274-278.