Evaluating Obstetric
Malpractice Cases (Continued from page 11)
used by clinicians to describe the events that can lead to irreversible brain injury is necessary before one attempts to review an obstetrical case. The placenta is responsible for trans-
ferring oxygen and nutrients from the maternal blood to the fetus. At the same time, carbon dioxide and other waste passes across the placenta from the fetus to the mother. Normal uteroplacental blood flow and gas exchange during preg- nancy is critical, so that the fetal brain tissue receives a constant and adequate supply of oxygen and glucose for normal development and survival. Uteroplacental insufficiency (“UPI”) is a term used to describe a situation where blood flow to the placenta is impaired and there is a risk that inadequate nutrients or oxygen are being delivered to the fe- tus. These events can occur suddenly, in which event they may be described in the literature as being acute or profound, or they can develop over time, in which event they may be described as being chronic or prolonged. The extent and location of a child’s brain injury may depend upon the timing, duration, and severity of the particular maternal, fetal or neonatal con- ditions that interfered with normal blood flow to, and oxygenation of, the fetal or neonatal brain tissue. If UPI develops and the fetus does not
receive adequate nutrition, intrauterine growth retardation can result. If the fetus does not receive adequate oxygen, hypoxia – reduced oxygen delivery to the brain or other tissue despite adequate blood flow – may result. Hypoxemia means a dimin- ished amount of oxygen in the blood; and ischemia means a diminished amount of blood perfusing the brain or other tissue. Hypoxia and ischemia, alone or in com- bination, can lead to blood gas and pH abnormalities, which may be referred to
as acidosis, either respiratory or metabolic, depending on the chemical components of the abnormality. The term asphyxia is used to describe a sequence of events that begins with hypoxia, or ischemia, or both, and culminates with metabolic acidosis. Physicians may use the word “asphyxia” or the term “hypoxic-ischemic brain in- sult” to describe the events that led to irreversible brain damage and neurologi- cal problems. Several terms are used to qualify the time period during which asphyxia occurs. Some physicians will use the term “peri- natal asphyxia” to refer to that period of time proximate to delivery. Others will use the terms “intrapartum asphyxia” or “birth asphyxia”, to more precisely de- scribe a clinical event that produced irreversible brain damage either during labor or close to the time of delivery.6 Finally, fetal distress is a concept with which most obstetricians and nurses are familiar and references to it are seen in many clinical records. Even though this term is not always defined the same way by experts and clinicians, it is used to describe a “win- dow of time” during which the fetus’ oxygen or blood supply is reduced and the poten- tial for severe asphyxia and permanent brain damage is present.7
Fetal distress may be
acute or chronic. Often one will find that the maternal or fetal conditions that led to
6
The American College of Obstetrics and Gynecology (“ACOG”) is unhappy with the term birth asphyxia and has urged physicians to abandon its use. ACOG Committee Opinion, Utility of Umbilical Cord Blood Acid-Base Assessment, Number 91 (Febru- ary 1991).
7
JT Parer and EG Livingston, What is Fetal Distress?, 162 Am. J. Obstet. Gynecol. 1421, 1427 (1990)(recognizing that intrapartum asphyxia is a potentially avoidable cause of cerebral palsy and obstetricians should con- centrate their efforts to avoid this problem).
fetal distress should have been diagnosed sooner and treated by immediate delivery.
THE STANDARD OF CARE
Sometimes lawyers, as well as experts, have difficulty determining precisely what is “standard” or “acceptable” medical prac- tice. Some of the resources that can be used to define the standard of care include: the standard textbooks of medicine; ar- ticles published in peer-reviewed medical journals; practices, patient care plans, pro- tocols, or standards adopted by hospitals; practices followed by the general medical community under the same or similar cir- cumstances; and guidelines, technical bulletins, committee opinions, practice patterns, guidelines, or standards recom- mended by ACOG and other national associations or organizations.
Physicians. In Shilkret v. Annapolis Emergency Hospital Association,8
the
Maryland Court of Appeals recognized that national standards of care exist and should govern the acts or omissions of physicians practicing in Maryland. A physician is under a duty to use that de- gree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances.9
Un-
der this standard, advances in the profession, availability of facilities, special- ization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.10
More impor-
tantly, a national standard of care makes it possible for the victims of medical mal- practice – who often are unable to locate local experts who are willing to testify against other local doctors – to designate expert physicians practicing in any state, provided that they are familiar with the national standards of practice among members of the same health care profes- sion with similar training and experience. In 1993, the Maryland legislature en- acted §3-2A-02(c) of Courts & Judicial Proceedings which states that: In any action for damages filed un- der this subtitle, the health care provider is not liable for the payment of damages unless it is established that the care given by the health care
8 276 Md. 187, 349 A.2d 245 (1975). 9
Muenstermann v. United States, 787 F. Supp. 499 (D. Md. 1992); Riffey v. Tonder, 36 Md. App. 633, 375 A.2d 1138 (1977).
10
Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993).
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