Like their laboring mothers, newborn infants are at a heightened risk for a number of significant complications. Some of these are from malpractice. Some are not. One of the most serious is hypoxic-ischemic encephalopathy (HIE) or perinatal encephalopathy. This brain injury is caused by a lack of oxygen during birth.Perinatal Encephalopathy
This term perinatal encephalopathy means "brain damage of unknown etiology from the birth trauma." It is an unbelievably broad term that includes every premature baby and infant who get low Apgar scores. It also includes a lot of children that have no significant injury, that will ultimately never impact their lives.
This broad term includes a ruptured uterus, obstructed or twisted umbilical cord, trauma or separation of the placenta, and a whole host of other things that we know and don't know about. One of the big concerns is hypoxic-ischemic encephalopathy because of how important oxygen is to a newborn.Hypoxic-Ischemic Encephalopathy
Hypoxic-ischemic encephalopathy is more specific and is cause for greater concern. The term hypoxia refers to a lack of oxygen to organs or tissues. Ischemia is a restriction of blood and the oxygen it carries that creates tissue or organ damage. Encephalopathy is a term for brain injury. Hypoxic-ischemic encephalopathy is a consequence of a deficit of oxygen supply to the brain. Potential complications from HIE run the gambit of awful: brain damage, death, and cell damage and death in an infant's central nervous system.
HIE is a broad-based term that refers to the loss of oxygen from anything, including drowning, carbon monoxide poisoning, etc. But the focus here is the loss of oxygen when kids need it the most: before and after birth. A fetus can be permanently brain damaged or killed as a result of oxygen deprivation and lack of blood flow to the fetal brain during the antepartum, intrapartum, and postpartum period.
Regrettably, there are a lot of situations during childbirth where doctors need to be vigilant to make sure there is a free flow of blood and oxygen to the infant's brain. Obstetricians, nurses, nurse practitioners, and nurse midwives need to be aware that conditions such as eclampsia, a prolapsed or compressed umbilical cord, ruptured uterus, or placental abruption can cause oxygen loss that can cause permanent brain injury or kill a child. Abdominal trauma, high uterine pressures, hyperstimulation of the uterus, high blood pressure, or seizures in the mother may also lead to a lack of blood and oxygen reaching the baby’s brain.Cause and Effect with HIE
Perinatal hypoxic-ischemic encephalopathy (HIE) occurs in .3% of .full-term births. Approximately 15%–20% of these infants die. One in four develops neurological injuries that include mental development delays, learning disabilities, seizures, epilepsy, physical movement development delays, cerebral palsy, and speech problems or delays. The remaining 55%-60% of children with perinatal hypoxic-ischemic encephalopathy do quite well.
So there is no question that HIE is extremely variable from child to child. Brain insults that seem on the surface to be seemingly similar in two different children may completely spare one child and cause a lifelong injury to the other. Why is this? No one knows. Some theorize that modern medicine cannot accurately quantify the scope of the magnitude of the impairment in utero. So "seemingly similar" may not be because we just do not have the tools to measure the real extent of the brain insult with HIE.
- Answers to frequently asked HIE questions
What causes HIE in the first place? There are a few primary causes of HIE including separation from the placenta, placental trauma, fetal stroke, eclampsia, complications with the umbilical cord, abdominal trauma, and uterine complications. It is also believed that excessive maternal sedation by anesthesia can cause or contribute to HIE.
When one of these complicating conditions occurs, oxygen is diverted from the child’s brain to the heart and lungs to keep the child alive. Once this begins, brain cells start to die; the longer the brain is without oxygen, the more cells die. As this process continues, the risk of severe and lifelong harm increases literally by the second. The timeline for HIE is short: a child can go from healthy to irreparably damaged in five minutes or less.
The most effective way to monitor and manage the HIE risk factors is the use of a fetal monitor. This device tells a physician about the child’s heart rate and other vital signs that show how the child is doing during contractions and labor.
The reported incidence of birth asphyxia, hypoxic-ischemic encephalopathy, or post-asphyxial encephalopathy in term or near-term infants ranges from 1 to 8 per 1000. Arguably, the real answer is probably lower, an estimated 1.6 per 10,000.
Diagnosis of HIE can be confirmed by a CT scan, MRI, EEG, EKG, or ultrasound. In the past, there has been a limited number of treatments for infants with HIE. Treatments included ventilation, NICU care, minimizing cerebral swelling, and preventing seizures.
Today, body and head cooling have been shown to decrease neurological problems caused by oxygen deprivation. This cooling process involves subjecting the infant to 72 hours of 33.5-degree temperatures. A study published in The New England Journal of Medicine found that this therapy reduced the risk of infant death and decreased the probability of long-term disability.
Children with HIE can require long-term care including rehabilitation, surgery, and possibly life-long aide or accommodation. Families who have children with HIE might be entitled to compensation if the HIE injury resulted from a physician or hospital breach in the standard of care.
Sometimes, there is a real debate about whether a child suffered an HIE injury during childbirth. To figure this out in cases where the doctors question our belief that the child suffered this injury, our medical experts look at the baby and ask questions. Was there asphyxiation during childbirth? Did the child need resuscitation? What were the cord and fetal blood gases and the arterial and venous pH levels? Was there a seizure? Did a brain MRI show injury in the thalamic and basal ganglia areas of the brain? Was there hypotension or metabolic acidosis? Is there an abnormality in the child's tone, reflexes, and level of activity? These are all potential facts that may be used as signals for an encephalopathy.
Below are some HIE settlements and verdicts in recent years. Keep in mind these are not meant to be representative of the average HIE case. They can be a tool in figuring out the settlement value of these cases, but they are just one tool. Prior verdicts alone do a poor job of predicting the value or outcome of future cases. But the verdicts and settlements in successful HIE cases tend to be quite large, and these examples do reflect that.
- June 2017, Florida: $33,153,912 Verdict. A child has HIE secondary to a brain bleed during the birthing process. The blood that should have been supplying oxygen to the brain was instead stuck between the skull and the scalp. As a result, the child suffers tragically permanent brain injuries. At age 18 months, the child was being fed through a peg-tube, could not stand, crawl or support himself; and had a tracheotomy that required suctioning every three to five minutes. The lawsuit, filed against the federal government because the doctors were government employees, alleged that a c-section would have avoided the birth trauma the child endured. The claim also alleges that excessive Pitocin to speed up the delivery was given. Plaintiff's claimed that all of this was evident if they have properly interpreted the message the baby was sending via the fetal heart monitor. The jury obviously accepted this version of the facts, coming back from deliberations with a whopping $29,413,495.91 for the child and the balance to the parents.
- May 2017, Florida: $2,500,000 Settlement. A newborn suffers hypoxic-ischemic encephalopathy, seizures and respiratory failure, hearing loss and developmental delays. Plaintiff's lawsuit alleges that the doctors and nurses failed to timely and appropriately diagnose and treat the child and mother and should not have induced labor at 35 weeks.
- September, 2016, Florida: $4,750,000 Settlement. A newborn baby born at Elmhurst Hospital Center in Queens is in immediate distress. He requires immediate resuscitation. He now has cerebral palsy. His lawyers argued that his CP was the result of hypoxia that could have been avoided if the doctors and nurse had listened to what the child was telling them via his heart rate monitor. They claim that an immediate C-section was the only reasonable choice.
- November 2013, Massachusetts: $4,250,000 Settlement: After presenting with contractions, a woman was admitted to a Worcester County hospital where the attending physician elected to induce labor. After about 24 hours the woman was only 4 cm dilated. Less than 12 hours later the physician determined the woman was fully dilated and should begin pushing. The physician’s decision was quickly overruled after the managing OB/GYN determined the woman was not sufficiently dilated and should stop pushing. However, the woman demanded a cesarean section be performed as she noted the infant’s head was pushing into her spine. Instead of adhering to the mother’s request, the OB/GYN spent 20 minutes trying to convince the woman to save her energy for two more hours of labor. During this predicament, the fetal heart rate monitor was disconnected for 50 minutes as the fetal heart rate variability lessened. A cesarean was not performed until four hours later. Within hours after birth, the infant began to experience seizures. She was ultimately diagnosed with hypoxic-ischemic encephalopathy. The mother sued the hospital and its physicians for negligence. Plaintiff contended that after demanding a cesarean section, the defendants were required to adhere as it was apparent the fetus was distressed. The defendants denied allegations, claiming their actions fell within the standard of care. Defendants also claimed the infant’s brain injury was inflicted before the time, Plaintiff came under their care. The parties agreed to settle for $4,250,000.
- June 2012, Maine: $3,141,825 Verdict: A soon-to-be mother was admitted to a hospital for labor and delivery. Upon her arrival, she began experiencing contractions in more than normal frequency and the fetal monitor was demonstrating fetal distress and lack of oxygen. The nurse midwife spent 45 minutes attempting to deliver the infant before consulting the on-call OB/GYN. It was determined that an emergency cesarean section was necessary. Unfortunately, due to the lack of oxygen, the infant was diagnosed with hypoxic-ischemic encephalopathy, resulting in cerebral palsy and cortical blindness. The mother and father sued the hospital, and the nurse midwife and her practice for failing to consult the OB/GYN when it became apparent the fetus was in distress. Defendant Midwife denied allegations, claiming the infant suffered a condition called Kabuki Syndrome that results in mental retardation. Defendant Hospital denied liability, claiming Defendant Midwife and her practice rented the space from the hospital and are not monitored as if they were employees. The jury found midwife 100% liable for the infant’s injuries and rendered a $3,141,825 verdict.
- October 2011, Michigan: $144,000,000 Verdict: An infant was delivered at William Beaumont Hospital in Royal Oak after her mother was induced for labor. Upon delivery, it was discovered the infant had a fractured left clavicle, was suffering from respiratory distress on top of seizures, and swelling of the scalp. She is now a paraplegic and requires permanent 24-hour care. The mother sued the hospital for malpractice, claiming the defendants failed to determine the size of the fetus before delivery as the fetus was larger than expected because of gestational diabetes. Plaintiffs alleged Defendant failed to recommend a cesarean section, resulting in the infant being crushed in the birth canal. Defendants denied liability. An Oakland County jury ruled in favor of the Plaintiff and awarded an astounding $144,000,000 verdict.
- July 2011, Maryland: $5,500,000 Settlement: An infant, who after delivery weighed just under three pounds and was showing normal APGAR and chord PH scores, had to have umbilical artery and venous catheters inserted. A chest X-ray was taken to confirm placement. But a follow-up X-ray revealed the catheter had advanced into the heart. A third X-ray was performed three hours later showing the catheter had advanced further. An additional X-ray was performed the following morning and confirmed the inappropriate position of the catheter. Soon the infant became hypotensive, but it was not until 20 minutes later that a doctor was called to assess the hypotension. By the time the catheter was removed, the infant had suffered hypotension, bradycardia, and a decrease in cerebral profusion, resulting in hypoxic-ischemic encephalopathy. The mother sued the hospital on the infant’s behalf for failing to reposition the catheter after multiple X-rays revealed the improper location. Defendant denied liability, claiming all actions were within the standard of care. The matter proceeded to trial where a Baltimore City jury ruled a $5,500,000 verdict for the Plaintiff.
- June 2010, Virginia: $800,000 Settlement: A woman was admitted to Reston Hospital for induction of labor. However, there were difficulties in delivery and the physicians elected to use a vacuum extractor. About six hours after delivery the infant began to develop seizures. He was soon after diagnosed with hypoxic-ischemic encephalopathy, resulting in right arm paresis and cognitive deficits. His parents sued the hospital and its physicians for malpractice, claiming they failed to timely perform a cesarean section after excessive use of a vacuum extractor. Plaintiff claimed that due to the failure to perform a cesarean section, the infant suffered insufficient oxygen and blood flow. Defendants disputed liability, claiming the child’s injuries were caused by a perinatal stroke before birth. The parties agreed to settle for $800,000.
These awful birth injuries are not always the result of doctor or nurse's mistake. Awful tragedies sometimes happen and no one is to blame Bad things happen to good people. But, sometimes, far too often, a doctor's error caused the child lifelong injuries.
What happens? Sometimes, the doctors, nurses, and midwives who are responsible for safe delivery of these infants into the world do not adequately monitor the condition of the fetus. Sometimes they wait too long to perform a C-section. When these things happen, the child can suffer lifelong injuries or death. Harm to any child is awful. But, in some ways, this harm is worse. Because it so easily could have been avoided. Parents and families can stay mad forever. And it is impossible to blame them.
Ultimately, what we may be able to do for you is get you and your child compensation for a horrific loss. That is all we can do. But the settlements and verdicts in these cases can be extremely high. Does that make it all better? Of course not. But money can help make a difference for your child.
If you want to investigate your potential child injury claim or if you are a lawyer looking for help evaluating your client's claim, call our birth injury malpractice lawyers at 800-553-8082 or get a free online consultation.More Information
- HIE Frequently Asked Questions
- Medical Malpractice Overview (information on malpractice cases generally)
- An Overview of Birth Injury Lawsuits
- Birth Injury Lawsuits
- Malpractice During Pregnancy That Causes Birth Injuries
- Herpes Encephalitis Lawsuits (an overview)