Evaluating Obstetric Malpractice Cases:


A Primer for the Trial Attorney by Dov Apfel


Dov Apfel (Apfel & Greene, P.C., Rockville, Maryland) is a member of MTLA’s President’s Club as a Founder and is Co-Chair of the Association of Trial Lawyers of America’s (ATLA’s) Birth Trauma Litigation Group. He concentrates his practice in obstetrical malprac- tice claims involving children with cerebral palsy and other neurological and intellectual disabilities.


Whenever maternal, fetal or neonatal conditions interfere with normal blood flow to the fetal or newborn brain, or re- duce the oxygen content of the blood perfusing the fetal or newborn brain tis- sue — either before the onset of labor, or during labor and delivery, or during the early neonatal period — the potential for irreversible brain damage exists.1


Some-


times the clinical condition of the newborn or the neuroimaging results shortly after birth will alert the physicians and parents to the fact that the baby may have suffered permanent brain injury. In other cases, the parents may suspect that their child suffered brain damage when the child fails to achieve developmental milestones during the first year of life. Regardless of when the parents find out about their child’s condition, they are rou- tinely told by treating physicians that no one knows what causes cerebral palsy, or that the outcome was unavoidable, or that the event causing the brain damage must have occurred before labor and delivery. Many parents suspect, however, that the facts and circumstances that led to their child’s brain damage were not fully disclosed. Therefore, they may decide to retain an attorney to conduct an indepen- dent evaluation of the medical records. When approached to evaluate the circum- stances arising in a birth trauma case, lawyers routinely are required to consider whether: (1) there were warning signs of fetal compromise or distress during the antepartum (before onset of labor) or in- trapartum (during labor and delivery) period that should have prompted the obstetrician to intervene and expedite the delivery, (2) the treating physicians timely diagnosed and properly managed those fetal, maternal, or neonatal conditions capable of causing irreversible brain damage, and (3) earlier obstetrical inter- vention, expedited delivery, or timely resuscitation and neonatal care would have prevented the brain damage.


1


See generally, Joseph J. Volpe, Neurology of the Newborn, at 279-313 (3rd Ed. 1995).


Fall 2000 Trial Reporter 11


Lawyers experienced in evaluating birth trauma cases understand that many possible clinical scenarios exist. For in- stance, a review of the medical records may disclose a history of one or more maternal or fetal complications that are capable of initiating a sequence of events leading to hypoxic or ischemic brain damage, such as: preterm delivery,2 preterm labor, premature rupture of the membranes, pregnancy-induced hyper- tension,3


preeclampsia, gestational


diabetes, oligohydramnios, intrauterine growth restriction, low birth weight, shoulder dystocia, maternal infection,4 neonatal sepsis, misuse of forceps or a vacuum extractor, nonreassuring fetal


2


See generally, Dov Apfel, Evaluating Birth Trauma Cases Involving Brain Injury in the Premature Infant, ATLA Professional Neg- ligence Law Reporter, July 1999.


3


See generally, Dov Apfel, Obstetrical Negli- gence: Hypertension in Pregnancy, Trial, May, 1992, at 32.


4


See generally, Dov Apfel, Maternal Infection In Pregnancy: Understanding The Medical And Legal Issues, Trial Magazine, May 1996.


5 heart rate patterns,5 and/or postdated pregnancy.


breech presentation, In some


cases, a review of the medical records will reveal that the treating physicians failed to recognize and properly manage these conditions and deviated from acceptable standards of medical care.


In other cases,


the newborn medical records will confirm that the infant was depressed at birth or shortly thereafter, and there may be clini- cal signs of birth asphyxia. This article reviews the legal elements of an obstetrical medical malpractice claim and discusses some of the clinical mark- ers that are often used by experts to pinpoint the timing and etiology of the specific maternal, fetal, or neonatal con- ditions that may have been responsible for causing irreversible brain injury.


MEDICAL TERMINOLOGY An understanding of the basic medi- cal terminology and concepts routinely


(Continued on page 12)


See generally, Dov Apfel, Electronic Fetal Monitoring, ATLA Professional Negligence Law Reporter, November, 1995.


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