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Timing Brain Damage (Continued from page 14)

abnormal finding on the initial sonogram of the brain is slit-like ventricles, you can argue that the defense cannot use this finding to time the injury. The defense may also look to radio-

logical studies for signs of periventricular leukomalacia (PVL), a condition marked by damage surrounding the brain ven- tricles, to support the assertion that the baby’s injuries are unrelated to HIE. PVL is usually described as an injury of prema- turity, because many premature babies have the condition. Therefore, when a term baby has both HIE and PVL, defense witnesses will point to the PVL to claim that the injuries had to be unrelated to birth. Yet the renowned pediatric neurologist

and author Joseph Volpe reports that PVL has been found in one-third to one-half of term infants who have suffered oxygen deprivation during labor and delivery.16


the presence of PVL does not necessarily push the time of injury back from the perinatal period to the prenatal period.

Nucleated red blood cells

The issue of nucleated red blood cells (NRBCs) comes up in about half of the depositions we take. An NRBC is an im-


Joseph J. Volpe, NEUROLOGY OF THE NEWBORN 349, 353 (4th ed. 2001). See also Goodlin, supra note 10, at 1836.

18 17


See, e.g., Shannon E.G. Hamrick et al., Nucleated Red Blood Cell Counts: Not As- sociated with Brain Injury or Outcome, 29 PEDIATRIC NEUROLOGY 278 (2003).


See, e.g., Kurt Benirschke, Placenta Pathology Questions to the Perinatologist, 14 J. PERINA- TOLOGY 371, 374 (1994).

mature red blood cell manufactured in the bone marrow. Some defense experts still try to time birth injuries based on the rise and fall of NRBCs, usually by claiming that insufficient time elapsed between labor and the newborn’s initial blood stud- ies to account for the number of NRBCs found in the studies. Such experts can be confronted with the medical literature and even the NEACP. The NEACP reports that the data on

the question of NRBCs is conflicting and that “The clinical utility of these measurements to determine the timing of neurologic injury should be consid- ered investigational.”17

Other authors

have written that NRBCs are unrelated to brain injury.18

/2 hours Moreover, there is lit-

erature reporting quick rises in NRBC count shortly after an acute stress to the fetus—for example, in less than 11

after the insult.19 Be careful, though, not to equate a rise

in the NRBC count with the beginning of brain damage. While it is clear that asphyxia may cause elevated counts, it is also clear that not all asphyxia leads to brain injury.

Seizures In the past, defense medical witnesses

often timed brain damage to the occur- rence of the infant’s first seizure. This defense does not come up often now, but as with other fashion trends, it might resurface. Volpe reports that after an acute

birth-related HIE event, seizures can be expected to occur by 6 to 12 hours after birth in 50 percent to 60 percent of the cases, and by 12 to 24 hours after birth in 15 percent to 20 percent of the cases.20 We emphasize the word “by” to stress the importance of reading the medical literature carefully. One well-credentialed defense pediatric

neurologist we know has consistently testified that after an acute HIE event, it took 6 to 12 hours for seizures to occur, claiming Volpe as the basis for his opinion. So if a baby seized at two hours of age, this neurologist would testify that the injury must have occurred at least four hours before delivery. Not only did this expert misquote Volpe, he ignored literature that specifically says birth injury cannot be timed by reference to the onset of neonatal seizures.21 Occasionally, a defense expert cites

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EEG tracings (showing what appears to be a more developed and chronic pattern of brain damage than an acute process) taken after birth to support an opinion that an injury occurred long before birth. Generally, it may be true that if a certain pattern persists, it may represent a chronic injury, whereas a worsening or improv- ing pattern may represent a more acute phenomenon.22

aware of attempt to time injuries by EEG tracings only in premature infants23

20 Volpe, supra note 16, at 333-34. 21

(Continued on page 18)

See, e.g., Myoung Ock Ahn et al., Does the Onset of Neonatal Seizures Correlate with the Timing of Fetal Neurological Injury?, 37 CLINICAL PEDIATRICS 673 (1998).


David K. Stevenson & Philip Sunshine, FE- TAL AND NEONATAL BRAIN INJURY 181 (1989).


See, e.g., Kazuyoshi Watanabe et al., Neonatal EEG: A Powerful Tool in the Assessment of Brain Damage in Preterm Infants, 21 BRAIN & DEVELOPMENT 361 (1999).

Summer 2006

Yet, the studies we are ; in the

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