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Timing Brain Damage (Continued from page 12)

usefulness than umbilical cord pH values” for timing HIE to labor and delivery.12 Ross found that fetal stress (for example,

repetitive, severe variable decelerations) may reduce the buffer base by about 1 mmol/L every 30 minutes; subacute fetal compromise may reduce the buffer base by 1 mmol/L every 6 to 15 minutes; and acute, severe compromise (for example, terminal bradycardia) may reduce the buffer base by as much as 1mmol/L every 2 to 3 minutes.13 Even if the pH does not meet the

NEACP criterion, a neonatologist or pe- diatric neurologist may be able to opine to reasonable medical certainty or probabil- ity when HIE began by applying the Ross algorithm to the reported base-deficit level and referring to an obstetrician’s opinion about the timing and nature of the fetus’s bradycardia. You can provide evidence of causation by showing that the injury is tagged to a point in time after which delivery should have occurred under the standard of care.


Michael G. Ross & Rageev Gala, Use of Umbilical Artery Base Excess: Algorithm for the Timing of Hypoxic Injury, 187 AM. J. OB- STETRICS & GYNECOLOGY 1 (2002).

13 Id. at 8.

Radiological studies Generally speaking, a child who has had

a devastating hypoxic insult during labor and delivery initially will have a normal brain scan because the abnormality will not appear on the scan taken right after the injury. Also, the child will initially have a normal head circumference, but during the weeks and months following birth, the head fails to expand normally, and the child becomes microcephalic due to abnormal brain growth caused by the hypoxic insult. While no single brain scan can time

injury to the exact minute or hour, a group of brain studies can be used to show whether the injury occurred be- fore, during, or after birth. If the injury occurred before birth, one would expect to find advanced abnormalities on brain scans (and possibly an abnormally small head circumference at birth, depending on how long before delivery the injury occurred). Brain scans of babies who have suffered HIE near the time of birth usually reflect—at most—cerebral edema (brain swelling) to indicate an injury has occurred. Whether dealing with acute near-total

or partial prolonged asphyxia, the defense will probably try to use an ultrasound, CT scan, or MRI of the brain taken during the child’s first day of life to undermine causation. Some defense-oriented medi- cal witnesses rigidly claim that it takes

at least 24 hours after an HIE event for any anomaly to appear on a brain study. They say that if a sonogram of the brain performed at 12 hours of life shows some brain swelling, then the brain injury must have occurred at least 24 hours before the study was taken (12 hours before birth). Such testimony can be a substantial hurdle to overcome. However, several studies have found

that cerebral edema may appear within 24 hours after the injury occurred.14


using this literature, it is wise to have the defense medical witness clearly state—on the record—that cerebral edema will never show up on a brain scan within 24 hours of a birth-related brain injury. Otherwise, the defense witness will use the fallback position that that some edema may show up in less than 24 hours, just not the amount of edema shown on the brain scan in your case. Sometimes defense-oriented witnesses

in the “no edema in 24 hours” camp will point to a “slit-like” appearance of the infant’s brain ventricles on the initial sonogram as evidence of edema (and thus an injury occurring 24 hours earlier). Although cerebral edema after an acute insult may compress the ventricles of a newborn’s brain and create the slit-like ap- pearance, or even obliterate the ventricles altogether, one study reflects that slit-like ventricles occur in 62 percent of newborns with no cerebral edema.15

So if the only (Continued on page 16) 14

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See Paul Govaert & Linda S. De Vries, AN ATLAS OF NEONATAL BRAIN SONOGRAPHY 241 (1997) (cerebral edema can occur “in the first hours of life”); PEDIATRIC NEURORADIOLOGY 251 (William S. Ball Jr. ed., 1997) (cerebral edema can occur “as early as the first day”); Alastair MacLennan, A Template for Defining a Causal Relation Between Acute Intrapartum Events and Cerebral Palsy: International Con- sensus Statement, 319 BRIT. MED. J. 1054, 1058 (1999) (cerebral edema can occur “within 6-12 hours”); N.K. Anand et al., Neurosonographic Abnormalities in Neonates with Hypoxic Ischemic Encephalopathy, 31 IN- DIAN PEDIATRICS 767, 769, 772 (1994) (cerebral edema can be found on “day one of life”); A. James Barkovich, MR and CT Evaluation of Profound Neonatal and Infantile Asphyxia, 13 AM. J. NEURORADIOLOGY 959 (1992) (cerebral edema can be found “less than 24 hours after injury”).

Marilyn J. Siegel et al., Hypoxic-Ischemic Encephalopathy in Term Infants: Diagnosis and Prognosis Evaluated by Ultrasound, 152 RADIOLOGY 395 (1984).

Summer 2006

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