Like their laboring mothers, newborn infants are at a heightened risk for a number of significant complications. Some of these are from malpractice and 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 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.
Regrettably, there are a lot of situations during child birth 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, placental abruption, abdominal trauma, high uterine pressures, hyperstimulation of the uterus, high blood pressure, or seizures in the mother may lead to a lack of blood and oxygen reaching the baby’s brain.Cause and Effect with HIE
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.
What causes HIE in the first place? There are a few primary causes of HIE including separation from the placenta, placental trauma, 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 in order 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 serious and lifelong harm increases literally by the second. The time line 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.
Between 15-20% of infants born with severe HIE die shortly after birth. About 25% of those that survive are expected to suffer serious neurological damage. This quarter of HIE survivors endures numerous problems including sudden infant death syndrome (SIDS), mental development delays, learning disabilities, seizures, epilepsy, physical movement development delays, cerebral palsy, and speech problems or delays. There are also, miraculously, infants who had HIE who have only minor and even insignificant problems.
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 2012 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 may be entitled to compensation if the HIE injury resulted from a physician or hospital breach in the standard of care.Hypoxic Ischemic Encephalopathy Settlements and Verdicts
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.
- 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 fully 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 prior to 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. An Androscoggin jury found Defendant Midwife and her practice 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 prior to 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 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 prior to 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 life long injuries.
What happens? Sometimes, the doctors, nurses, and midwives who are responsible for safe delivery of these infants into the world do not properly 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
- 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)