Kreisman Law Offices Professional Corporation
Birth injury lawsuits are brought because of the catastrophic damage to an infant during or immediately after childbirth. One of the more significant injuries to a baby is cerebral palsy. Cerebral palsy is described as a group of disorders of the development of movement and posture, causing activity limitations that are associated with injury to the developing fetus or infant brain. Motor disorders of cerebral palsy are often accompanied by disturbances of sensation, cognition, communication, perception, behavior and seizure disorder.
When a child is damaged at birth by the negligence of an obstetrician, gynecologist or other medical practitioner, these defendants often turn to the American College of Obstetricians and Gynecologists (ACOG) and their supporters to defend these cases. Many of the defenses presented are based on published documents that are used by experts in the cases that are unscientific, yet are designed to negate a causal relationship between asphyxia and cerebral palsy.
Asphyxia is a major cause of cerebral palsy (CP), but these experts present testimony that would prevent a plaintiff family from proving that their child’s brain damage was caused by asphyxia.
Surrounding birth injury litigation is the publicity promoted by obstetricians trying to influence potential jurors. The idea is that jury verdicts in favor of a permanently brain damaged child will only lead to obstetricians leaving the practice because they fear being sued. Medical defendants in birth injury cases where CP is the result regularly state at trials that the cause of the CP is unknown, not foreseeable before birth and not currently preventable. That statement comes from medical literature that is often cited by ACOG to support the proposition that a lack of oxygen at birth rarely causes CP. Birth trauma litigation is not designed to freeze out obstetricians but is only a means to both compensate innocent victims and to protect those potential victims of medical negligence.
Parents of children who have been diagnosed with CP should have the right to know whether their baby was exposed to hypoxia (lack of oxygen), ischemia (lack of sufficient blood flow), asphyxia (a combination of biochemical and clinical events that begins with reduced oxygen delivery or blood flow during the time before the onset of labor, during labor and delivery or in the hours and days after the birth).
The parents of a child afflicted with CP should know whether their baby has been exposed to any one of these or in combination with each and whether the window for preventing or minimizing the brain injury to the child was available.
Parents have the right to know correctly and accurately that the healthcare provider was either a cause or not a cause of the sad outcome of CP. Unfortunately, it is widely known that defendants in birth injury litigation have been using junk science with threat of censure and other self-serving criteria to attempt to debunk an honest case of medical negligence that caused the CP in the first place.
Timing is everything in the delivery of a child. In fact, even if a fetus were exposed to asphyxia, there is no certainty that the fetus would develop brain damage. In fact, the fetus would first compensate and redistribute blood flow to the brain, heart and adrenal glands. This compensatory response is a window of opportunity, but it lasts only minutes to hours. So timing is critical. Clinicians need to recognize whether a fetus is at risk or is suffering from asphyxia in order to intervene and save the child from severe and permanent brain damage.
It is well-known that all babies are at risk for irreversible brain injury or death when they experience hypoxia or ischemia immediately before birth, during the birth in process or in the post-partum period. Asphyxia develops when the fetus is exposed to prolonged hypoxia or ischemia.
CP can be prevented in cases where there is asphyxia and hypoxic-ischemic conditions present. There are other causes of CP, such as infection, trauma, coagulation disorders, malformations and genetic disorders, which may not be preventable. Birth injury litigation is viable for the family of a baby afflicted with CP in those instances where the condition was preventable but for the negligence of the medical providers.
Multiple studies around the United States and the world have focused on asphyxia and the timing of events that have led to brain damage in newborns. Regardless of the situation, obstetricians and defendants in these cases where CP is the result defend them on the basis that the events that occurred injuring the child happened before labor and delivery. There are studies that indicate the opposite. One report using modern neuroimaging techniques confirms that the role of the medical providers in labor and delivery was the cause in many cases to the brain injury to the newborn. In fact, one study showed that in 90% of the cases of neonatal encephalopathy or seizures occurred within 72 hours of birth and were caused during the labor and delivery period.It is well- known that an asphyxial episode lasting more than 10 minutes results in irreversible damage to the brain.
In short, whether a child has been exposed to hypoxia, ischemia and/or asphyxia and whether the child could have been removed from the dangers of those conditions during a window of opportunity minimizing or preventing the brain injury would have to be carefully and thoroughly investigated. The prenatal and labor and delivery records would be most useful in making this determination by a medical professional. The important thing here is that in cerebral palsy litigation, the defendants will present medical research that may well be unreliable and simply designed to defeat the case. Lawyers, judges and experts should be encouraged to evaluate all of the studies and pay particular attention to the facts and circumstances of each case.
Kreisman Law Offices has been handling birth injury litigation, birth trauma litigation and cerebral palsy litigation cases for families of children who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Lincoln Square (Chicago), Long Grove, Highwood, Homewood, Flossmoor, Rosemont, Palos Park, Bridgeview, Calumet City, Orland Park and Crestwood, Ill.
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