Cerebral palsy is a disorder that is very strongly associated with medical malpractice. There is a very simple reason this association and it has nothing to do with the ambitions of malpractice lawyers. Cerebral palsy is often the direct and immediate consequence of negligent care provided by doctors and/or hospital staff during childbirth. Cerebral palsy is not a genetic disorder like autism or Down syndrome.
Rather, cerebral palsy is more accurately described as an “injury” (e.g., a broken leg) that is actively caused by some adverse event during pregnancy or childbirth. The primary role of obstetrical healthcare is to prevent adverse events from harming the mothers and babies. This does not mean that doctors are at fault anytime a baby is harmed by complications during pregnancy or birth. However, the simple reality is that a large percentage of bad outcomes are the result of errors and negligent care on the part of doctors and hospitals and this is particularly true in the case of cerebral palsy. Each year in the U.S. approximately 10,000 babies are born with cerebral palsy. Although there is no way to know for sure, most experts estimate that as many as half (5,000) of these cases are caused by preventable medical negligence.Legal Elements of Cerebral Palsy Malpractice Claims
To bring a valid legal claim against a doctor or medical professional for medical malpractice a civil plaintiff must be able to prove 3 basic elements:
- The existence of doctor-patient relationship.
- The doctor “breached the standard of medical care” by doing something that was not consistent with accepted standards of good medical practice in the field.
- The doctor’s breach of standard medical care was the direct and proximate cause of the injuries to the patient.
In cerebral palsy malpractice cases the primary focus is on the 2nd element. Cerebral palsy is caused by injury to the baby’s brain from oxygen deprivation during gestation or delivery. As mentioned above, the oxygen deprivation is the result of some complication or adverse event during pregnancy or during labor in delivery. In a cerebral palsy malpractice case the critical question is whether the doctor’s actions with respect to the adverse event or complication were reasonable and appropriate based on accepted practices.
The precise focal point of this question will usually depend on the underlying theory of the plaintiff’s claims. The vast majority of CP malpractice claims are based on allegations that the doctor (and/or hospital) somehow botched a difficult labor and delivery process. Of course in order for these theories to work plaintiffs need to show that there was something the doctor could have done differently that would have avoided the injury to the baby. Almost all cerebral palsy cases are based on the premise that the baby could have been safely delivered with a timely emergency C-section.
To actually prove this 2nd element in court plaintiffs need more than just a sound theory. The only way to successfully prove that a doctor was negligent is by getting an expert opinion from another doctor. In fact, plaintiffs are not even allowed to file medical malpractice lawsuits without first getting another doctor to sign a certificate confirming that there is evidence of medical negligence.Cerebral Palsy and Negligent Prenatal Care
Most cases of cerebral palsy are directly linked to an adverse event during labor and delivery. However, cerebral palsy can also result from complications that arise during pregnancy. Most of these potentially dangerous complications can be successfully treated or managed with proper prenatal medical care. Unlike complications during delivery, problems during pregnancy tend to develop much slower giving doctors more time to intervene and prevent harm to the baby. So long as a complication is promptly identified it can almost always be safely managed. The real threat to the baby occurs when complications go undiagnosed. This is why basically all cerebral palsy malpractice cases based on prenatal care are based on failure to diagnose theories. The critical focus in these cases is whether the doctors could have and should have diagnosed the complication and taken steps to avoid the injury to the baby.
The pregnancy complications that are most frequently involved in cerebral palsy cases based on negligent prenatal care include:
- Maternal Infection: Certain infections in pregnant women can invade the placenta or otherwise disrupt the supply of oxygen to the fetus when left untreated. Recent studies have revealed that maternal infections are actually one of the leading prenatal causes of cerebral palsy. Maternal infections are easily and effectively treated with antibiotics but diagnosing them promptly can sometimes be tricky.
- Fetal Macrosomia: Fetal macrosomia is potentially dangerous condition where the baby is too big vaginal delivery. Macrosomic babies must be delivery by C-section to avoid injury. However, measuring the size of the baby inside the womb is notoriously difficult and macrosomia is one of the most frequently misdiagnosed prenatal conditions.
- Placenta Problems: The placenta is a key organ that develops inside the uterus and attaches to the umbilical cord. The placenta is responsible for delivering oxygen and nutrients from mother to fetus. There are a handful of potential complications that sometimes occur with the placenta and can cause cerebral palsy. The 2 placenta conditions that come up most often in failure to diagnose malpractice cases are placenta previa and placental abruption.
- Manning v. Pecos Valley of New Mexico (New Mexico 2018) $73 million: this is a classic example of a cerebral palsy case based on negligent prenatal care. The OB/GYN office in this case completely failed to perform one of the most basic aspects of prenatal care: measuring and tracking the size of the baby. Specifically, the doctors failed to ultrasound exams or perform clinical measurements to determine fetal size throughout the pregnancy. As a result, the doctors failed to diagnose fetal macrosomia which would have prompted a C-section. The baby got stuck in the birth canal during delivery and suffered severe oxygen deprivation before he could be extracted. He was diagnosed with cerebral palsy. A jury in New Mexico awarded $33 million in compensatory damages + $40 million in punitive damages for a staggering total award of $73 million.
- Smart v. Barsoum (Pennsylvania 2018) $1 million: mother goes to her OB/GYN at 35 weeks for routine checkup. Lab work shows very high protein levels in her urine which is a key indicator of preeclampsia but the results somehow get overlooked or discounted and she is sent home. A few days later the preeclampsia triggers severe swelling in her legs and she goes to the emergency room. Doctors perform an emergency C-section but the baby has already suffered oxygen deprivation and is diagnosed with cerebral palsy. The case settled prior to trial for $1 million.
- M.F. v. Orange Regional Medical (California 2018) $8.9 million: the OB/GYN office in this case failed to properly diagnose placental abruption which should have prompted an immediate emergency C-section. As a result of the delay in diagnosis and response the baby was deprived of oxygen for an extended period of time causing a severe type of brain injury called hypoxic-ischemic encephalopathy (HIE). The baby was eventually diagnosed with spastic cerebral palsy. The case was settled for $8.9 million.
When cerebral palsy is the direct result of improper medical care, it usually takes place in the labor and delivery room. As many as 20-25% of all cerebral palsy cases are directly linked to oxygen deprivation and brain injury occurring during labor and delivery. Human childbirth is a very difficult process that can be acutely hazardous for the baby. Until the moment of birth when a baby starts breathing on its own, it remains dependent on the delivery of maternal oxygen through the umbilical cord and placenta. However, the normal functioning of the placenta and the umbilical cord are under constant threat during labor. Anything that disrupts or constrains the delivery of oxygen to the baby, even for just a few minutes, can potentially injure the baby’s delicate brain. The neurologic damage from this sort of momentary deprivation of oxygen is what eventually leads to a lifetime of cerebral palsy.
When it comes to delivering babies, the primary function of doctors and hospitals is not to simply get the baby out. Babies can be delivered at home without a doctor or nurses or monitoring equipment. The reason for delivering babies in a hospital with doctors is because it is safer. The doctors and hospital staff are there to prevent babies and mother from being harmed during labor and delivery. Safeguarding the baby from the constant threat of oxygen deprivation is what doctors and nurses get paid to do during childbirth. This does not mean that anytime a baby suffers oxygen deprivation it necessarily means the doctors and nurses failed to do their job. Even when the labor and delivery team do their jobs perfectly they cannot always prevent harm to the baby. However, in most situations, harm to the baby can be prevented with careful and effective medical care.
Malpractice during labor and delivery tends to be very fact specific and much like a fingerprint no 2 cerebral palsy malpractice cases are exactly alike. However, the nature of the malpractice in cerebral palsy cases can be grouped in several common categories which are described below.
- C-Section Delays: No matter what the situation, most cases of cerebral palsy can theoretically be prevented with a timely emergency C-section. Labor and delivery teams at a hospital can perform an emergency C-section in a matter of minutes. This means that if the baby’s oxygen supply is disrupted an immediate emergency C-section can prevent injury to the brain and cerebral palsy. For this reason the majority of cerebral palsy malpractice cases revolve around a failure or delay in performing an emergency C-section.
- Forceps Errors: Obstetrical forceps are like a pair of salad tongs with metal cup spoons on the ends. Doctors use forceps in a difficult vaginal delivery to grip the baby’s head and pull them out of the birth canal. Using forceps requires an extremely high level of skill by the doctor. When used improperly or without the requisite skill level obstetrical forceps can easily damage the baby’s head. External head trauma can potentially cause neurologic damage and trigger cerebral palsy.
- Fetal Monitoring Errors: Electronic fetal monitoring (EFM) strips, or other types of EFM devices, are one of the most tools in the labor and delivery room. EFM devices monitor the baby’s heart rate during labor which provides doctors with critical early warning signs of when a baby is under stress during labor. An experienced doctor should be able to read and interpret the EFMs to identify when a baby may be suffering from oxygen deprivation. The problem is that EFM give a lot of false alarms so doctors often tend to ignore them until it is too late.
- Umbilical Cord Issues: Along with the placenta, the umbilical cord acts as the baby’s lifeline for the delivery of maternal oxygen until they start breathing independently. Umbilical cord prolapse and other umbilical complications that can occur during labor can disrupt the baby’s oxygen supply. Doctors are expected to monitor for these complications and take immediate action when they arise. Monitoring failures or delayed responses are often the basis for cerebral palsy malpractice.
- Hamilton v. Sampson Community Hosp. (Kentucky 2018) $18.2 million: plaintiff-mother had a normal pregnancy and was admitted to the hospital for full-term delivery. Pitocin was given to induce labor and she received a drip epidural for pain. The Pitocin triggered hyperstimulation of the mother’s contractions and she claimed that the hospital staff and doctors negligently failed to reduce or stop her epidural drip which hindered her ability to push. As a result, the baby became stuck and suffered oxygen deprivation. The baby was eventually diagnosed with quadriplegic spastic cerebral palsy (the most severe form of spastic CP). After a 7 day trial, the jury in Barren County took just 45 minutes to decide for the plaintiff an award $462,917 in past medical expenses; $9,000,797 in future medical expenses; $1,505,940 in impairment of earning capacity; $6,500,000 pain & suffering.
- West v. Gerson (Pennsylvania 2017) $350,000: this is a classic case of negligent failure to take appropriate action in response to fetal monitor warnings. Mother was pregnant with twins when her fetal membranes prematurely ruptured at 32 weeks. Doctors stalled labor to allow for lung development. Due to abnormal tracings, a biophysical profile was ordered which demonstrated that one of the twins had been under prolonged distress. Despite all the indications of danger, the defendant doctor did not order an emergency C-section until the fetal heart rate dropped to a dangerously low 60 bpm. When the 2nd twin was finally delivered she had suffered severe oxygen deprivation and had to be resuscitated. She was eventually diagnosed with HIE-induced cerebral palsy. Plaintiffs received $350,000 under a pre-trial settlement agreement.
- Dixon v. United States (Florida 2017) $33 million: this case is another example of doctors failing to perform an emergency C-section the face of clear warnings from fetal monitoring strips. After inducing labor the fetal monitoring strips were “non-reassuring” prompting nurses to stop the Pitocin drip and call in the doctor. When the doctor arrived the fetal heart monitor was showing a “category 3” hear rate. Plaintiff’s expert testified that “category 3” indicated a serious lack of blood and oxygen to the fetus requiring an immediate delivery. Instead of doing an emergency C-section the doctor restarted the Pitocin and had the mother continue pushing for several hours while he was in and out of the room while delivering another baby. By the time the baby was eventually delivered it had suffered prolonged oxygen deprivation and diagnosed with a severe case of spastic cerebral palsy requiring 24-hour medical care. The jury awarded $33 million in damages.