How do I know if my child has been a victim of medical malpractice?

Birth injuries are a type of complex medical malpractice claim.  Virtually anything that goes wrong during pregnancy or labour and delivery can raise questions about the quality of medical care.

The only way to know if a malpractice claim exists is to properly investigate the facts and medical-legal issues involved. If you or your family have questions or concerns about the medical care you received during pregnancy or the birth of your child, a BILA lawyer will be able to advise you of your legal rights and whether a claim should be advanced.

Each has its own particular set of facts and challenges that set it apart from others. It would, therefore, be impossible to describe every single scenario that might give rise to a birth injury claim.  In general, here are the types of birth injury/medical malpractice claims BILA lawyers will accept:

A. Cerebral Palsy and other Neurologic Injury Caused by Delayed Delivery

Sadly, a common type of birth injury claim is one involving neurologic injury to a newborn caused by the failure of the obstetrical team (doctors, nurses, midwives) to intervene or expedite delivery in the face of fetal distress. If the baby is incapable of tolerating the intrauterine environment for whatever reason, an urgent delivery by caesarian section or other means may be necessary. The failure to deliver the baby promptly in these circumstances can lead to oxygen deprivation, a condition known as hypoxia.

Here is an infographic describing HIE:

Severe or prolonged hypoxia can lead to decreased blood supply to the baby’s organs, called ischemia, and can result in permanent injury to the baby’s brain and other vital organs. Hypoxic-ischemic encephalopathy or HIE is a condition involving injuries to a baby’s brain caused by lack of oxygen (“encephalopathy” simply means brain sickness). Babies with these types of injuries may later develop permanent neurologic conditions such as cerebral palsy (CP) or other cognitive and developmental problems. Although CP has a variety of other causes, a significant number of CP cases, in absolute terms, can be attributed to impaired oxygenation during labour and delivery.

A number of factors can lead to this type of injury. These include, but are not limited to:

  1. Umbilical cord compression;
  2. Abnormal uterine contractions, particularly those occurring too frequently or lasting too long;
  3. Shoulder dystocia
  4. Low blood pressure in the mother (maternal hypotension):
  5. Rupture of the uterus;
  6. Placental abruption;
  7. Excessive pressure on the baby’s head during uterine contractions.

The obstetrical team is charged with monitoring fetal and maternal well-being during labour and delivery. They can monitor the baby’s well-being using a variety of surveillance techniques, including electronic fetal heart monitoring (EFM). EFM will invariably give clues about how the baby is tolerating the contractions and the stresses of labour. If a baby is deprived of oxygen, this will cause changes in the heartbeat; these changes will be evident on the EFM tracing.

Warning signs on EFM tracings must be heeded by the obstetrical team. The failure to intervene in the face of worrisome changes on the EFM tracing can result in serious injury to the baby, including HIE. Such medical errors can form the basis of a successful birth injury claim.

BILA lawyers will often accept cases in which the obstetrical team failed to expedite the delivery despite what should have been apparent concerns from the EFM tracing and other clinical information. In other words, the failure to perform an urgent or emergency c-section or to deliver the baby by other operative means may give rise to a birth injury claim.

B. Failure to Progress During Labour and Delivery

Likewise, a birth injury claim may be warranted where the obstetrical team failed to perform or arrange a timely c-section or other operative delivery despite an excessively lengthy labour. During childbirth, the obstetrical team should monitor the rate of dilatation of the mother’s cervix as well as the position of the baby and the rate of descent of the baby down the birth canal. In some cases, the labour may be excessively slow to progress; in other cases, there may be no progress at all.

There are a variety of reasons to explain the failure of labour to progress: there may be mechanical issues related to the baby’s position or presentation; the baby’s head may be too large for the mother’s pelvis; or, the uterine contractions may not be effective in pushing the baby out through the birth canal.

Regardless of the reason for the lack of progress, the obstetrical team must be vigilant in assessing progress and deciding when to intervene. In some circumstances, steps will need to be taken to either augment the labour or else deliver the baby operatively on an urgent or emergent basis. Sometimes, a vaginal delivery will simply not be possible; in those cases, the obstetrician must strongly consider a caesarian section and the failure to do so may constitute negligence.

Thus, allowing the labour to continue for a long time without progress may give rise to a birth injury claim. This is particularly the case if the second stage of labour (after full cervical dilatation) is prolonged. In a prolonged second stage of labour, the waves of contractions, together with the mechanical forces of the mother’s pelvis on the baby’s head may lead to injury over time. Most full term, healthy babies have the ability to withstand the rigours of childbirth, called “reserve”. However, if the labour is excessively long, these reserves become depleted and the baby may decompensate, resulting in neurologic injury or death.

Labours that last too long can injure the mother’s uterus as well. Some women experience post-partum haemorrhage following an unduly prolonged labour. If severe enough, this can lead to the need to surgically remove the uterus (hysterectomy) and even death. In addition to preventing further pregnancies by hysterectomy, this operation also brings on premature menopause.

C. Oxytocin Use

BILA lawyers frequently handle cases involving the imprudent use of oxytocin. Oxytocin, also known as Pitocin or Syntocinon, is a medication commonly used to initiate or augment labour and expedite delivery. Oxytocin accomplishes this by stimulating the uterus. In so doing, oxytocin causes the uterus to contract more frequently and with greater intensity, thereby causing more rapid cervical dilatation and descent of the baby in the birth canal. When properly utilized, oxytocin is a valuable and important tool for the obstetrical team. Problems arise when too much oxytocin is used or when the obstetrical team fails to recognize that the oxytocin is negatively impacting the health of the baby or mother.

As previously mentioned, a normal, healthy baby is usually able to tolerate the stresses of labour, including the stress of uterine contractions. Problems may arise, however, if the contractions become too frequent, a condition known as tachysystole or uterine hyperstimulation. Oxytocin is a medication that is known to cause hyperstimulation of the uterus when used in excess. Too much oxytocin can result in waves of contractions that effectively reduce the baby’s oxygen supply. Without enough time to recover between contractions, the baby begins to deplete its reserves. If this continues, the baby’s reserves become dangerously low and the baby will decompensate, eventually resulting in hypoxic-ischemic injury.

Given the potential for oxytocin to hyperstimulate the uterus, it is imperative that the obstetrical team carefully administer oxytocin and monitor the dosage and the mother’s and baby’s response. If there is evidence of uterine hyperstimulation or worrisome changes on the EFM tracing, oxytocin should be tapered or discontinued to prevent injury to the baby and the mother.

In addition to the indirect impact of oxytocin on the baby’s oxygen supply, oxytocin may also directly result in rupture of the uterus, a condition that poses a grave risk to mother and baby.

In short, the imprudent use of oxytocin may form the basis of a birth injury claim and BILA lawyers are frequently consulted on such cases.

D. Shoulder Dystocia

In a normal vaginal delivery, the baby’s head emerges first, followed shortly thereafter by the shoulders. In rare cases, one or more of the baby’s shoulders may be trapped beneath the mother’s pelvic bone, preventing delivery. This is known as shoulder dystocia. Without an effective and rapid response by the obstetrical team, shoulder dystocia can lead to serious injury to the baby’s arm and shoulder. In rare cases, it can also lead to brain injury and death.

Trapped beneath the mother’s pelvic bones, the baby’s shoulder is vulnerable to tugging forces. Pulling on the baby’s head or neck in an effort to free the shoulder may cause damage to a delicate cluster of nerves in the baby’s arm, known as the brachial plexus. Brachial plexus injuries can result in Erb’s Palsy, a permanent neurologic condition. Children with Erb’s Palsy may have lifelong disabilities, including paralysis in the affected arm.

In extreme cases, the failure to deliver the baby because of shoulder dystocia can lead to oxygen deprivation and asphyxia.

Given the potential complications from shoulder dystocia, the obstetrical team must respond quickly and skillfully. There are a number of manoeuvres the obstetrical team should perform in the presence of shoulder dystocia. Each of these manoeuvres is intended to free the shoulder from the mother’s pelvic bone. These manoeuvres include the McRobert’s Manoeuvre, whereby the mother’s legs are flexed and her thighs are brought towards her abdomen. The obstetrician can also reach inside the vagina in an effort to manually rotate the baby’s arm free, a technique known as the Wood’s Corkscrew Manoeuvre. The obstetrical team can also press down on the mother’s lower abdomen in an effort to push the baby’s shoulder clear of the pelvic bone.

If the obstetrical team fails to carry out one or more of these manoeuvres in a timely and skillful way and the baby suffers harm, this may form the basis of a birth injury claim.

In some cases, the obstetrical team should be prepared for the possibility of shoulder dystocia or other mechanical problems. This is particularly true when the baby is large or there are other physical reasons to expect a difficult delivery. Risk factors include:

  1. Baby is past the expected date of delivery;
  2. Lengthy labour with slow descent or progress;
  3. The baby is large for gestational age;
  4. Gestational diabetes;
  5. Small or petite mother;
  6. A mother with a narrow pelvis.

In some cases, the failure of the obstetrical team to anticipate a difficult vaginal delivery and recommend alternatives i.e. c-section, may form the basis of a birth injury claim.

E. Negligence in Antenatal (Prenatal) Care

Obstetrical malpractice is not limited to medical errors made during labour and delivery. There is a duty of care throughout the course of the pregnancy. This includes the duty of the obstetrician to properly monitor the expectant mother and her baby during pregnancy and to manage any issues that arise.

It goes without saying that negligent antenatal (prenatal) care can result in injury to the mother or baby. In some cases, where there is inadequate screening or counselling for genetic abnormalities such as Down Syndrome (Trisomy 21), parents may be deprived of their right to decide if they want to proceed with the pregnancy at all. In other cases, the failure to properly manage maternal problems such as high blood pressure or diabetes can lead to serious complications that put the life of the mother and baby at risk.

Good antenatal care requires the use of various modalities and screening tests to assess the health of the mother and baby. This means regular fetal surveillance and assessment by way of blood tests, ultrasonography, EFM, and, in certain circumstances, amniocentesis and genetic testing. If a baby is born with genetic abnormalities or conditions that were not adequately screened for during the pregnancy, the parents may have a claim for the extraordinary costs of caring for and raising that child.

It is likewise essential that the health of the mother be regularly monitored during pregnancy. Maternal blood pressure, in particular, must be carefully monitored and controlled. Failure to do so may lead to preeclampsia, a condition characterized by high blood pressure and damage to the mother’s kidneys. Preeclampsia is a serious condition that may be a threat to the life of the mother and baby.

Maternal glucose levels should be routinely monitored throughout the pregnancy. Approximately 3-10% of all pregnant mothers will develop some degree of gestational diabetes, a condition characterized by diminished insulin response resulting in increased blood sugar levels. Without appropriate screening, diet and medical management, gestational diabetes can result in complications for the mother and her baby. For example, gestational diabetes may result in a baby who is too large for a safe vaginal delivery. Untreated, gestational diabetes may also increase the risk of preeclampsia, seizures and stillbirth.

F. Negligence in Neonatal Care

BILA lawyers also accept cases involving substandard neonatal care, which involves the care a baby receives after delivery. Depending on the baby’s condition at birth, a wide range of care requirements may come into play. If the delivery was difficult or complicated, a neonatal team may be required to resuscitate and treat the baby immediately at birth. The failure to have that team present at the time of delivery may raise questions about the quality of care.

A baby who is born after a difficult delivery may require ongoing care in a critical care setting such as a neonatal intensive care unit (NICU). The baby may require ultrasound, CT or MRI brain imaging. The baby may require transfer to a paediatric hospital. If the baby has suffered a hypoxic-ischemic brain injury, treatment with hypothermia (cooling) and other forms of management may be necessary to minimize the harm. Should the baby develop seizures, these will need to be quickly treated to avoid further neurologic injury. All of these very complex issues may be the subject of a birth injury claim.

G. Negligence in C-Section or Operative Delivery

A variety of problems can occur during a c-section or operative delivery (i.e. forceps, vacuum). In some cases, the outcome from the operative delivery may raise questions that warrant  investigation by a BILA lawyer.

A negligently performed c-section may result in injuries to the mother, including injuries to her bladder, uterus, blood vessels and other vital organs. Lacerations and injuries to the baby are also possible.

Delivery by forceps likewise carries risks to both mother and baby. Negligent use of forceps may result in injuries to the mother’s bladder, urethra and perineum. Risks to the baby include cranial fracture, facial fracture and lacerations or injuries to the facial nerves. In rare cases, the baby may suffer brain injury or death.

H. Death of Mother or Baby

In some cases, the process of labour and delivery, or complications during pregnancy may result in the death of the mother or baby. These heart-wrenching cases usually involve the same issues seen in cases of maternal or fetal injury. The issues of standard of care and causation must be investigated in order to determine if a valid malpractice claim exists.