Timing Brain Damage (Continued from page 10)
• an umbilical cord arterial blood pH less than 7 with a “base deficit” greater than or equal to 12 mmol/L (millimoles/liter)8
• an early onset of encephalopathy • cerebral palsy of the spastic quad- riplegic or dyskinetic type
• exclusion of other etiologies In the majority of HIE cases we have
reviewed, the medical records reflect an early onset of encephalopathy, spastic quadriplegia, and the exclusion of other etiologies for the brain damage. As a result, our planned response to an antici- pated NEACP defense usually centers on the umbilical cord blood gas analysis. When the laboratory report reflects that
8
A “base deficit” occurs when bicarbonate (HCO3) concentration decreases to below normal. HCO3 levels decrease as the body uses bicarbonate to buffer organic acid in an attempt to maintain a normal pH level. CUNNINGHAM ET AL., supra note 2, at 390-91.
NEACP cord blood gas criteria are met, a health care provider will find it hard to defend the case on causation. If the laboratory results do not meet the criteria, the plaintiff must be prepared to explain why the jury should reject the laboratory report or reject the NEACP standard. Over the years, we have seen cases in
which health care providers mishandled or mislabeled blood samples, resulting in unreliable blood cord gas results. In one case, the doctor drew blood from the placenta and improperly labeled it as umbilical cord blood. Direct evidence of such errors provides a ready explana- tion for why the NEACP criteria weren’t met. Even if there is no direct evidence of sampling error or lab error, there may be circumstantial evidence that the reported test results are unreliable and that an ac- curate reading of the cord blood gases would have met the NEACP criteria. For example, we have handled cases in which the fetus was in distress for a significant time before birth, but the umbilical cord blood pH at birth did not meet the NEACP criteria. Nevertheless, the initial arterial blood gases taken some period of time after birth were abnormally low even
though the baby had undergone vigorous neonatal resuscitation and shown some improvement in his clinical condition. In other words, the blood gases taken 30 or 45 minutes after delivery were worse than those taken at birth—the opposite of the result one would expect when there was a significant period of distress before birth and proper resuscitation and clinical improvement after birth. Under these cir- cumstances, neonatology experts opined that the reported umbilical cord blood gas results were probably wrong, and an accurate measurement would have met the NEACP criteria. These experts cite studies showing that arterial pH will fall about .04 units per minute in the presence of total asphyxia—in other words, it takes 10 minutes for a pH of 7.4 to fall to 7.9 Even if an infant’s umbilical pH is 7 or
above, he or she may still suffer HIE.10 Acidosis in the tissues due to lack of oxy- gen does not necessarily result in acidemia reflected by a low blood pH, especially when heart rate circulation is decreased.11 The decrease in heart rate circulation will be reflected in the fetal monitor strips. Therefore, even if the umbilical cord pH is 7 or above, if the fetal heart tracings reflect decreased heart rate circulation, you may still be able to time the injury to the labor and delivery period. If the umbilical cord blood pH is 7
Bradley Troy,
is one of the largest privately owned Financial Services firms in theMid-Atlantic Region. The firm was established in 1978 by our current president and founder, Quincy Crawford.
We are proud to announce that formerWest Publishing representative, Richard Bishop, has joined First Financial Group as a financial representative. Who better to serve the legal industry than the gentleman who provided legal research products and services to the Mid-Atlantic community for the past 20 years.
: 10
• Buy-Sell Funding Strategies • Executive Benefit and Deferred Compensation Strategies • Own Occupation Disability Protection • Qualified Sick Pay Plans • 401(k) and Qualified Plan Design and Implementation • 401(k) Enrollment and Education • Voluntary Employee Financial Planning Seminars • Disability Overhead Expense Coverage • Disability Buy-Out Insurance • 412(i) Plans, Profit Sharing Plans, SEP’s • 419(a) Plans, Deductible Death Benefit Only Plans • Life Insurance—Whole, Variable, UL, Term • Indemnity & Reimbursement Long-Term Care Insurance • (GMIB)GuaranteedMinimum Income Benefit Annuities, • Business Continuation Strategies • Estate Distribution Planning Strategies
Richard Bishop & Bradley Troy, CFP® CLU ChFC
Richard Bishop, Field Representative of The Guardian Life Insurance Company of America (Guardian), New York, New York. John Bradley Troy, Registered Representative and Financial Advisor of Park Avenue Securities LLC (PAS), 401Washington Avenue, Suite 600, Towson, Maryland 21204. Securities products/services and advisory services are offered through PAS, a registered broker-dealer and investment advisor, (410) 828-5400. Financial Representative, The Guardian Life Insurance Company of America (Guardian), New York, New York. PAS is an indirect, wholly-owned subsidiary of Guardian. First Financial Group is not an affiliate or subsidiary of PAS or Guardian.
PAS is a member of NASD, SIPC. Disability income products underwritten and issued by Berkshire Life Insurance Company of America, Pittsfield, MA, a wholly owned stock subsidiary of The Guardian Life Insurance Company of America, New York, NY.
9
or above but the base deficit meets the NEACP criterion—it is greater than or equal to 12 mmol/L—then a study by Michael Ross may be useful in proving causation. Ross concluded that “base excess values have a significantly greater
(Continued on page 14)
See, e.g., Ronald E. Myers, Two Patterns of Perinatal Brain Damage and Their Conditions of Occurrence, 112 AM. J. OBSTETRICS & GYNECOLOGY 246 (1972).
See, e.g., Robert C. Goodlin, Do Concepts of Causes and Prevention of Cerebral Palsy Require Revision?, 172 AM. J. OBSTET- RICS & GYNECOLOGY 1830 (1995); T. Murphy Goodwin, Clinical Implications of Perinatal Depression, 26 OBSTETRICS & GYNECOLOGY CLINICS N. AM. 711 (1999).
11
See Marcus C. Hermansen, The Acidosis Paradox: Asphyxial Brain Injury Without Coincident Acidemia, 45 DEVELOPMEN- TAL MED. & CHILD NEUROLOGY 353 (2003); Jeffrey P. Phelan et al., Birth Asphyxia & Cerebral Palsy, 32 CLINICS PERINATOLOGY 61, 64 (2005); Schifrin, supra note 3.
12 Trial Reporter Summer 2006
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60