Child Injury Laws - By Jonathan Rosenfeld

Given the state of our high-tech delivery rooms, it might seem contradictory that most major birth injuries occur as a result of simple human communication problems.

We like to assume ALL doctors know exactly what they’re doing, at all times. Especially during the high-stress experience of labor.

But study after study has proved that teamwork breakdowns are more threatening to a baby’s health than anything else - simply because there’s so much to keep track of, at such a risky time.  

In 2008, a group of 16 hospitals called “the Premier Alliance” tried to change that, by implementing what they called “care bundles.” Care bundles are a series of protocols that apply to a singular birth event, and work best when used a team, in tandem.

“What we were trying to do is to make care delivered in the birth process more effective,” said Susan DeVore, Premier’s chief operating officer. “Our goal is to get [the injury rate] to as close to zero as possible, with zero being the only acceptable number.”

Care bundles can apply to any number of birth situations, but they’re most often used for two events: The decision whether or not to use pitocin to induce labor, and the use of vacuum extractors in more difficult vaginal deliveries.

In the case of a vacuum extraction birth, a “care bundle” would consist of:

• An in-depth discussion of between the doctor and patient about the risks and benefits of the procedure
• A documentation of the conversation
• An exam to ensure that the baby’s properly positioned
• Plans for emergency staffers to be on call, should a C-section be required

According to a recent Wall Street Journal article, Premier Alliance experienced an eleven precent drop in birth injuries since it started its care bundle programs.  It also reduced the number of babies with insufficient oxygen by 31 percent.

Recently, the federal government awarded $3 million each to two groups working on improving obstetrical safety - St. Louis-based Ascension health, and Minneapolis-based Fairview Health Services.

“I have a mental checklist now of what to do,” said Dr. Paul Burstein, a doctor at an Ascension Health hospital in Milwaukee. “It’s given me more confidence. And I know other members of the team are on the same page.”

Related entries from Child Injury Laws blog:

Lights, Camera, Baby Delivery! Are Parents Entitled To Film The Birth Of Their Children?

Is the rush to induce labor, jepordizing the safety of mother and baby?

Are Cesarean Sections Helping Or Hindering The Health Of Mother & Infant?

Birth Asphyxia: A Doctor's Delay, A Lifetime Of Medical Complications

As medical malpractice lawyer, who has worked on cases involving cerebral palsy, I've noticed a good deal of confusion regarding all aspects of CP.  

Like many medical conditions, it seems like the more we study this troubling condition, the more questions we have.

I've tried to draw out some particularly useful information from trusted sources to address many of the issues I come across in cerebral palsy cases.

What is cerebral palsy?

Cerebral Palsy (CP) is a condition (CP is sometimes referred to as a group of symptoms) that can affect the brain and nervous system functions including movement, posture, learning, hearing, seeing, and thinking.  It is caused by brain injury or abnormal development of the brain that occurs before, during, or shortly after birth (brain damage occurring after age 5 is not considered cerebral palsy). 

Most problems occur in the womb, but problems can happen anytime during the first two years of life as the child’s brain develops.  It is estimated that almost 800,000 children and adults in the United States are living with symptoms of cerebral palsy.  And, the CDC (U.S. Centers for Disease Control and Prevention) estimates that every year about 10,000 babies born in the United States will develop cerebral palsy.  

What are the types of cerebral palsy?

There are actually several different types of cerebral palsy:

• Spastic – muscle stiffness and movement difficulties (occurs in 70% of children with CP)
• Athetoid (or dyskinetic) – involuntary and uncontrolled movements (occurs in 20% of children with CP)
• Ataxic – disturbed sense of balance and depth perception (occurs in 5% of children with CP)
• Mixed - (usually spastic and athetoid types are combined and may also involve severe mental retardation)

Symptoms assciated with cerebral palsy

Signs and symptoms of cerebral palsy usually present themselves during infancy or preschool years.  Symptoms can vary significantly between people and range from minor clumsiness to severe spasticity (muscles are continuously contracted).  In addition, the disability symptoms associated with cerebral palsy can be limited to one limb or one side of the body, or they can affect the whole body. 

Symptoms of CP usually become evident before a child has reached the age of two, but they can begin as early as three months.  Brain damage does not worsen after the damage has occurred; however, the symptoms may change as the individual grows and matures.

Symptoms include:

• Spasticity (stiff muscles and exaggerated reflexes)
• Rigidity (stiff muscles with normal reflexes)
• Joint contracture (joints are tight and do not open up all the way)
• Too stiff or too floppy muscle tone
• Ataxia (lack of muscle coordination)
• Athetosis (slow, writhing movements)
• Difficulty walking (walking on toes, crouched gait, scissors-like gait, wide gait)
• Tremors
• Delays in reaching motor skills milestones (sitting up alone, crawling)
• Favoring one side of body (reaching with only one arm, dragging one leg while crawling)
• Excessive drooling or difficulty swallowing
• Delays in speech development or difficulty speaking
• Difficulty with precise motions

Oftentimes, the brain problems that lead to cerebral palsy conditions can also cause additional neurological problems such as:

• Difficulty with vision and hearing
• Intellectual disabilities or mental retardation
• Speech problems (dysarthria)
• Seizures
• Abnormal touch or pain perceptions
• Dental problems
• Urinary incontinence

Causes of cerebral palsy

Oftentimes, the exact cause of cerebral palsy is unknown because it usually stems from an abnormality or problem in brain development before the child is born.  Factors that can cause problems with brain development include:

    •    Oxygen deprivation (hypoxia)
    •    Fetal stroke
    •    Genetic defects
    •    Bleeding in the brain
    •    Infant infections (encephalitis, meningitis, herpes simplex infections)
    •    Maternal infections (ex. rubella)
    •    Traumatic head injury
    •    Severe jaundice

Risk Factors and Prevention of Cerebral Palsy

CP affects 2-4 of every 1,000 infants and premature babies are at a slightly increased risk of developing cerebral palsy (CP is 10 times more common in premature infants).  Moreover, CP is more common in low birth weight infants (less than 3.3 pounds). 

A study in the American Journal of Obstetrics and Gynecology that looked at the times of delivery of two million neonates in California over fourteen years suggests that night births are linked to an increased risk of brain disorders such as epilepsy, cerebral palsy, and encephalopathy. 

Babies born between 10 p.m. and 4 a.m. were 22% more likely to develop cerebral palsy and other brain conditions because of lack of oxygen during delivery.  The authors suggest that medical errors and poor staffing in hospitals overnight may account for the higher incidence of brain problems.    

In many cases, the exact cause of CP is unknown, which makes prevention difficult.  However, if you are having a baby, there are steps you can take to lower the risk of CP.  These efforts include:

• Maintaining a healthy diet
• Proper prenatal medical care
• Review medications with your doctor
• Controlling diabetes, anemia, hypertension, seizures, and nutritional deficiencies during pregnancy
• Vaccination against diseases
• Practice good child safety (prevent head injuries)

Treatment for cerebral palsy

There is no cure for cerebral palsy.  However, many children benefit from physical therapy and special education.  Treatment is based on the individual’s symptoms and the need to prevent complications.  Usually, the earlier the treatment begins, the better chance the child has of overcoming disabilities or learning new ways to accomplish tasks. 

Treatment plans should include a team of professionals (doctor, dentist, social worker, nurses, therapists (occupational, physical, and speech), and specialists for specific symptoms.  Treatment plans can include self and home care, special education and schooling, glasses, hearing aids, muscle/bone braces, walking aids, wheelchairs, surgery, and medications to address seizures, spasticity, drooling, and tremors. 

The good news is that most children with CP survive into adulthood.  Long-term care may be required depending on the severity of symptoms, but a comprehensive care plan can help the individual be as independent as possible and reach their highest potential.  

Research efforts are underway to improve the treatment and diagnosis of cerebral palsy, but ultimately, prevention is the key for curing CP.  Researchers at Duke University are looking into stem cell therapy to treat cerebral palsy patients.  They are hoping that the stem cells can help regenerate cells in the brain that never developed because of lack of oxygen during birth, which could alleviate symptoms.  

If your child is diagnosed with cerebral palsy, there are support groups and circles that can help you cope with CP and its effects.  The following organizations offer good resources:

• NINDS
• United Cerebral Palsy
• U.S. Centers for Disease Control and Prevention

In addition, your doctor should be a good source for local community groups.  Cerebral palsy requires long-term and loving care.  You should encourage your child’s independence and take an active role in advocating for your child.  If you do not think your child is receiving the best possible care, you should speak up on your child’s behalf.  Proper care for cerebral palsy requires that each and every professional treating your child work together to ensure the best outcome for your child.  

Resources:

Seer Press News: Cerebral palsy more likely to develop in babies born during night time, study says

Seer Press News: Stem cells for treatment of cerebral palsy

HealthCommunities.com: Cerebral Palsy Signs and Symptoms

Mayo Clinic: Cerebral Palsy

Merck: Cerebral Palsy

Cerebral Palsy Lawyers FAQ

NCBI: Cerebral Palsy

National Institute of Neurological Disorders and Stroke (NINDS): Cerebral Palsy Information Page

Kids Health: Cerebral Palsy

When many of us consider 'medical malpractice' we commonly associate cases involving: surgical errors, birth injuries or a series of medical mistakes made by a doctor or medical professional. 

Rarely do we considered the circumstance where medical care was simply not provided at all or when treatment was delayed so significantly that the patient suffered harm related to the delay.

Particularly when patients are taken to an emergency room, it is the responsibility of the hospital to do triage on each patient and assess their medical needs to determine if the patient has a true "emergency" that requires immediate medical attention or perhaps has a situation that is not quite as pressing.

We recently discussed a situation involving delayed emergency room care in California where a two-year-old girl was forced to wait more than five hours when her family brought her to the emergency room for treatment related to an infection.  By the time doctors finally got around to providing the girl with the care that she needed, the Streptoccus A infection has progressed throughout the girls body.  While the girl was able to survive the ordeal, the delayed medical care is responsible for the amputation of her hands and feet.

In response to this medical error, the girl's family filed a medical malpractice lawsuit against the hospital and physicians group who staffed the nursing home where she was originally brought for care.  Recognizing the significance of the delayed medical care-- and the possibility of saving the girl's limbs with a more timely intervention, the hospital and physicians group has agreed to settle this matter for an estimated $10 million.

Is delayed medical care, medical malpractice?

As a medical malpractice lawyer, who handles cases involving serious injury or death from delayed medical care in a hospital, nursing home and immediate care setting, I see two primary reasons for these type errors: insufficient patient assessments and inadequate staffing levels-- where medical facilities may simply not have proper staff to care for the patient needs. 

From a triage standpoint, nurses and doctors should be tuned in to the subjective complaints and testing results when determining the patient's immediate need for medical care.  Staff needs to appreciate that when a patient presents themselves with certain conditions, they need to be addressed immediately.  Similarly, while not every medical facility can be expected to be able to provide quality patient care in every situation, a proper triage should be able to determine the patients needs and a transfer to a more specialized medical facility when necessary.

Related:

Family of Sacramento girl who needed amputations after ER delay is awarded $10 million, October 28, 2011, The Sacramento Bee

Medical Malpractice Lawsuit Alleges That Delayed Treatment Resulted In Baby's Amputations

Diagnostic Accuracy of Stroke Referrals From Primary Care, Emergency Room Physicians, and Ambulance Staff Using the Face Arm Speech Test (pdf) Stroke 2003, 34:71-76

Interval between decision and delivery by caesarean section—are current standards achievable? Observational case series (pdf) BMJ VOLUME 322 2 JUNE 2001

A jury in Nebraska recently found an obstetrician guilty of negligence in the way she handled the delivery of a baby in 2008.  

At issue in the medical malpractice trial was how the obstetrician handled a fairly common problem encountered by physicians when delivering larger babies--- shoulder dystocia, when the baby's shoulder gets stuck on the mother's pelvic bones.

Rather than adjusting the mother's positioning on the delivery table and applying pressure to the mother pelvic area, the obstetrician attemped to deliver the child by pulling on the child's head.  

The force put upon the child's head is believed to have ruptured and severed the delicate nerves in the area of the known as the brachial plexus-- an area of nerves in the neck and shoulder area that control movement in the arm and hand.

Now a toddler, the child has very limited use of her arm due to the injuries to her nerves in the bracial plexius.  

After hearing the evidence regarding the delivery practices and the child's past and future disability, the jury awarded $1.8 million to compensate the child for past and future, pain and suffering, medical care and lost wages.

Read more about this brachial plexus (Erb's Palsy) injury lawsuit here.

As a lawyer who works on cases involving children's birth injuries, I am glad that this jury was able to appreciate the fact that this obstetrician had other options to safely deliver this child as opposed to the manner in which she did.  

Physicians and midwives who encounter situations involving the delivery of larger babies need to anticipate potential problems-- like shoulder dystocia--- and both consider if a vaginal delivery is appropriate in the first place and then be prepared to deftly maneuver abies though the birth canal.

Related:

NINDS Brachial Plexus Injuries Information Page

Restoration of sensory function and lack of long-term chronic pain syndromes after brachial plexus injury in human neonates (pdf) Brain 2002

Doctor's Error May Be Responsible To For Development Of Erb's Palsy Or Brachial Plexus Injury

High birthweight and shoulder dystocia- the strongest risk factors for obstetrical brachial plexus palsy in a Swedish population-based study (pdf) Acta Obstet Gynecol Scand 2005: 84: 654--659

Are Cesarean Sections Helping Or Hindering The Health Of Mother & Infant?