Kernicterus Medical Malpractice Lawsuits

Kernicterus is a clinical-pathological entity comprised of a constellation of clinical symptomology and pathologic changes, anatomic pathologic changes in the brain resulting from hyperbilirubinemia.

What does that actually mean?  Okay. The majority (approximately 60%) of babies born in the United States have some degree of jaundice. This is the yellowing of the skin, eyes, and tissues.

It is a scary word—jaundiced. But it is rarely a big deal. Jaundice usually goes away within a few days as the liver has a chance to clear the excessive bilirubin from the blood, and the baby goes about normal development. Kernicterus is out-of-control jaundice.

Excessive jaundice, due to increased levels in the blood of a substance called bilirubin (hyperbilirubinemia), can lead to a rare disease known as bilirubin encephalopathy. Infants showing signs of brain dysfunction due to increased bilirubin require immediate treatment to prevent/minimize brain damage. Kernicterus means that there is too much bilirubin in the blood. If this rare condition is properly treated, it can usually be easily managed. Untreated, kernicterus can cause permanent brain damage.

• Kernicterus birth injury news and updates.

Kernicterus Symptoms in Babies

Besides jaundice, the most common symptoms of kernicterus are irritability, abnormal suck response, abnormal tonic, and abnormal muscle tone. Other signs of acute bilirubin toxicity include:

• high-pitched cries and decreased muscle tone with episodes of increased muscle tone causing backward arching of the back and head
• lethargy
• sleepiness and difficulty in arousing
• lack of wet diapers
• not feeding well
• seizures
• generally fussy

Fevers may develop as the damage progresses. Feedings often decrease, leading to the dehydration of the infant, further exacerbating symptoms.

Kernicterus Risk Factors

Every child has a risk of kernicterus. Modern medicine does not have a great lens into why some infants get excessive jaundice and why some do not.

But we do have some clues. Factors that may lead to increases in bilirubin in the blood and causing jaundice include

• blood group incompatibilities between mother and infant, prematurity, bruising (e.g. cephalohematomas and bleeding under the skin of the scalp (caputs)
• infection
• ethnicity (east Asian or Mediterranean descent)
• siblings with jaundice at birth, genetic factors (i.e. deficiency in glucose-6-phosphate dehydrogenase)
• non-optimal suckling/feeding.

Kernicterus Treatment

Treatment for this problem includes phototherapy with bilirubin lights, hydration with fluids, and preparation of the infant for possible blood transfusion.

Feedings should occur every one to three hours to ensure urination and defecation to aid in removing bilirubin from the body. The course of treatment should be immediate for any suspect cases and should not be delayed awaiting further testing.

Kernicterus can be managed if the symptoms are recognized early and treated immediately. Delays in diagnosis/treatment have severe consequences in infants with kernicterus. Infants affected typically require physical and speech therapy and special education.

Medical Malpractice and Kernicterus

What is maddening is that this tragedy can always be avoided if doctors, nurses, and hospitals do the right thing. What is the right thing?  Test for bilirubin levels.

If the baby has obvious jaundice, the National Institute for Health and Care Excellence and the National Institute for Health and Care Excellence guidelines recommend measuring the bilirubin level. This is the standard of care. Treating newborn babies is often complicated. This is not complicated at all. It just requires attentive doctors and nurses.

Even without bilirubin screening, there are many steps that can be taken to prevent this disaster. Nurses and doctors need to remember to examine the newborn for jaundice and be able to distinguish visually between mild jaundice and clinically significant jaundice. This is based on the infant’s age in hours and the need to evaluate risk factors and, if warranted, assess bilirubin levels, appropriately treat, and follow up. In hospital nurseries, this is not always done.

The following list includes some of the most common, preventable, mistakes made by physicians:

• Not treating the child immediately following initial bilirubin results. Like most health conditions, the faster you catch kernicterus, the better. Sure, retest the child if you like. But don’t let that delay treatment. The cost of waiting can be a lifetime of neurological problems for the child.
• Waiting to treat or interruption of phototherapy to determine the risk of a blood transfusion. If tests are required to prepare the infant for transfusion, all tests should be done under phototherapy lights. Again, delay can lead to lifelong injury.
• Not properly examining the infant for signs of kernicterus or the symptoms discussed above. They are not flashing light emergency symptoms but a reasonable doctor should catch them.
• Failing to properly appreciate the test results. Total serum bilirubin is specific to the age – in hours – of the child. Bilirubin must be measured and compared to specific norms by hour. For example, blood work from a one-day-old infant may be found to be normal or high, depending on whether the newborn is 24 hours or 47 hours old. A level of 8.5 is considered high risk in a 24-hour-old baby and low risk for a 47-hour-old baby. Doctors sometimes interpret a test that should be cause for alarm as perfectly normal while the bilirubin levels continue to rise.

Kernicterus Lawsuit Verdicts and Settlement Amounts

Below are some example verdicts and settlements in Kernicterus cases. They are not common.  We went back to update this list in 2024 and did not find more reported verdicts. Most of these cases settle confidentially.

If you read all of these, you will notice the common threads that run through all of these cases when they are successful.  You will also find the same thread in the literature below: follow the guidelines to treat infants with jaundice.

• 2023: Louisiana, $2,500,000 Verdict. The plaintiffs said although their newborn daughter had both major and minor risk factors for developing hyperbilirubinemia, or elevated bilirubin levels, the hospital and its staff failed to take interventional steps for lowering her bilirubin levels and discharged her from the hospital approximately 41 hours after her birth. The plaintiffs claimed that as a result of this negligence, the baby developed kernicterus and Bilirubin-Induced Neurologic Dysfunction, which eventually led to her death.
• 2017: Pennsylvania, $5,850,000 Settlement. The plaintiff, a minor born prematurely at 29 weeks due to maternal complications in Pittsburgh, initially showed stability. However, in the second week of life, the infant’s bilirubin levels spiked. Despite an observable jaundice at 9 a.m. on a Saturday, the bilirubin level was not checked until 4:25 p.m., revealing a dangerously high level of 29. Subsequent tests confirmed persistently elevated levels, but treatment was delayed by over 17 hours. As a result, the plaintiff developed kernicterus, leading to severe spastic diplegia cerebral palsy, rendering the minor unable to walk or speak. The plaintiff argued that immediate treatment upon detecting high bilirubin could have prevented the brain damage. The defendants claimed the conditions were related to prematurity and argued timely intervention was made. The case settled for $5.85 million.
• 2017: Arkansas, $46,500,000 Verdict. A slightly jaundiced child is discharged from the hospital without a follow-up bilirubin test with instructions to return in 10 days. Three days later, the child was lethargic, crying, and in pain. Mom called the doctor, who said to call back the next morning. After several calls, she got in to see the doctor. They gave her a blood test and sent her home. Her phone message to the doctor’s clinic was returned by a nurse who advised the mother to call back the next morning. The mom kept calling and got an appointment. The doctor gave her a blood test and sent the child home. When the blood test results showed the child was in crisis, it was too late. She has a permanent brain injury and is bound to a wheelchair. Incredibly, the defense was that you cannot expect hospitals to have the resources to do the appropriate follow-up in this corner of the state.
• 2013, New York, $24,813,260 Verdict. A one-day-old plaintiff is evaluated and found to be completely normal. He is discharged. Three days later, he returns to the hospital with yellow discoloration of the skin and eyes. The doctors determined that he was suffering from hyperbilirubinemia, which is a severe form of jaundice. Treatment was timely, but the three-day delay proved costly. The child suffered severe brain damage and cerebral palsy. Depressingly, the defendant argued his damages should be less because their expert thought he would die by age 25. After a 12-day trial, the jury voiced its disapproval, awarding compensation of more than $24 million.
• 2012, California, $5,000,000 Settlement. After a normal delivery, the child has a bilirubin level of 5.2. Mother and child are discharged with instructions to be seen within four days. Upon their return, the baby was seen by a medical assistant at a pediatric group. This time, the bilirubin count came back at 15.3 Another test two days later showed a count of 14.6. A normal level is 20. The office called the mother to report the results and said that since the levels were dropping, she could wait for a retest. A few days later, the child stopped breathing, and her skin had turned yellow. Her bilirubin levels were now at 40.1 But, and this is incredible, the lab was to report levels over 30, so it caused the computer to interpret the blank value as noncritical. So the processing lab never calls the central call center. No report on the child’s bilirubin count was provided. The next day, the child deteriorated, and they finally figured it out. But it was too late The little girl is subsequently diagnosed with cerebral palsy due to kernicterus and hyperbilirubinemia. The lawsuit was against both the lab and the pediatric group.
• 2008, New York, $6,000,000 Settlement. A 2-day-old boy has jaundiced skin. A follow-up is scheduled in 5-7 days. Three days later, the boy is taken to the hospital. His skin is still slightly jaundiced. His bilirubin level is 34. Doctors also noticed a hematoma on his scalp and discovered he had brain damage. The boy’s kernicterus birth injury lawsuit alleged that his injury was the result of hyperbilirubinemia, and the doctors should have followed up more vigorously on these symptoms before he was discharged. Defense counsel contended that the 5-7 day follow-up was within the standard of care. The doctors and hospitals’ lawyers still saw fit to offer a compensation payout of $6 million to settle the lawsuit.

Kernicterus Medical Literature

February 2024 – New Study on Untreated Jaundice

A new study examines how severe jaundice in newborns can lead to brain damage called kernicterus if left untreated.

The authors note that over the past three decades, efforts to prevent kernicterus have included national guidelines and evidence-based practices, like universal screening and phototherapy. While these measures have reduced EHB-related deaths significantly in high-income countries, low- and middle-income countries still face challenges due to less developed healthcare systems. The study analyzes data from 1990 to 2019, highlighting the decline in EHB-related mortality worldwide and emphasizing the need for continued improvements in neonatal care.

This study underscores the importance of adhering to updated guidelines for managing neonatal jaundice to prevent kernicterus. In a lawsuit, it can be used to argue that failure to follow established protocols and inadequate monitoring of bilirubin levels in newborns constitute negligence. The study provides evidence that timely interventions, such as universal screening and appropriate use of phototherapy, are crucial in preventing severe outcomes like kernicterus, particularly in at-risk infants. This study can be used to demonstrate the standard of care required and the potential consequences of deviating from it.