This is the first in a series of three articles about how medical experts determine when a newborn brain injury occurred. This article will explain how birth injury lawyers use medical imaging to determine the timing of a brain injury. The second article in this series will deal with umbilical cord blood gas analysis. The third will discuss fetal heart rate changes.
If your baby has been diagnosed with cerebral palsy or similar neurological injury, one of the questions you may have is whether the injury could have been prevented. To a great extent, this depends on when your baby was injured. If the brain injury happened during labour and delivery, while you were under the care of your medical professionals, there may be grounds for a claim.
When can a baby suffer a brain injury?
A newborn with signs of neurologic injury can suffer that injury any time during pregnancy, during labour and delivery and during the first days and weeks of life. Lawyers representing injured children must prove when the injury occurred.
How can you tell when the brain is injured?
There are essentially three ways that doctors can look at the newborn brain. They can use:
- An Ultrasound (US) scan;
- A CT scan, or
- An MRI scan.
Scans of the newborn brain are generally read by neuroradiologists. Each method allows observations to be made about the brain that can help diagnose the cause of any injury as well as the timing of injury. Each method has advantages and disadvantages that lawyers who represent injured children need to understand.
Using these imaging techniques will also reveal whether any injury occurred well prior to labour and delivery or around the time of labour and delivery. Where it is claimed that injury occurred because of a poorly managed labour, the imaging of the newborn brain needs to support that timing. For a more detailed look at the different types of neuroimaging, take a look at the article by BILA founding member, Joe Miller: Neuroimaging: What is it and how can it help my baby’s birth injury lawsuit?
How the brain gets injured
The ways in which the fetal or newborn brain gets injured leaves well-recognized patterns of injury. In addition to identifying patterns of brain injury, imaging can also establish whether the injury occurred long before labour (a “chronic” injury) or at or around the time of labour (an “acute” injury).
Where the injury is chronic, the injury is not caused by poor management of labour and delivery. Where the injury is acute, it may be due to poor management of labour.
Acute vs Chronic brain injury
Acute brain injury develops or evolves in ways that help to prove timing. It is well recognized that where there is an injury to the fetus during labour, the imaging of the newborn brain in the first 24 hours of life will appear fairly normal (although there are exceptions).
Between 24 hours and 48 hours of life, a brain that has been injured around the time of birth will begin to show some evidence of swelling, called “edema”. That brain swelling reaches a peak at about 3 to 5 days of age and then begins to disappear over the next few days, leaving evidence of permanent injury. By 7 to 10 days of age the final injury is clear on imaging.
The evolution of injury described above is what allows experts to comment about the timing of injury. Where the evolution follows this pattern it proves, with a high degree of certainty, that the newborn’s brain injury occurred at or near the time of birth.
Days not minutes
Imaging of the newborn brain provides an estimate of the timing of injury within a matter of days as opposed to pinpointing the injury to within minutes. That is, where the evolution of injury described above is present, the neuroradiologist can say that the injury occurred during a fixed “window of opportunity”, sometimes as narrow as 3 days.
In order to be more specific about when during that window of opportunity the injury occurred, to narrow it down to a period of hours or even minutes, it is necessary to turn to experts in other fields, including obstetrics and neonatology.
When combined with a metabolic acidosis in cord blood (described in the second article in this series) and changes in the fetal heart rate (described in the third article in this series), a strong case may emerge.
Want more information?
If you want more information about newborn birth injuries, or have questions about a possible birth injury claim, you may want to read a copy of our book; Birth Injury Lawsuits: A Parent’s Guide.
The members of the Birth Injury Lawyers Alliance wrote this consumer education guide to help parents understand their rights and their child’s rights when faced with an injury caused by medical negligence. This is the only legal guide in Canada written specifically for parents of children injured during childbirth.
The book is available to download on our website for free. If you would like a print copy, the book is for sale on Amazon (all proceeds go to charity), but we will send you a copy at no charge, if you call us, toll-free at 1-800-300-BILA (2452).
* image courtesy of kidshealth.org
John McKiggan, QC has represented clients in pediatric and adult injury claims that have resulted in multi-million dollar awards. In recognition of his accomplishments, John has been honoured by his peers, who elected him president of the Atlantic Provinces Trial Lawyers Association. He has also been named Queen’s Counsel, a designation recognizing exceptional professional merit. John has been selected for inclusion in the Best Lawyers in Canada in the field of personal injury law, he is listed in the Canadian Legal Lexpert Directory and has been named a local litigation star by Benchmark Litigation Canada.
