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Timing Brain Damage


in Birth Injury Cases by Wayne M. Willoughby and Zev T. Gershon


Wayne M. Willoughby (Gershon, Willoughby, Getz & Smith, LLC) received his J.D., cum laude, from the University of Baltimore School of Law in 1986. He is vice president of the Maryland Trial Lawyers Association, a member of the Ethics Committee of the Bar Association of Baltimore City and a member of


the Continuing Legal Education Committee of the Baltimore County Bar Association. Mr. Willoughby is a past MTLA treasurer, past MTLA Legislative Committee chair and past MTLA Medical Negligence Section chair. He has lectured locally and nationally and is the co-author ofMedical Malpractice in Maryland (NBI 2003). Mr. Willoughby concentrates his practice on representing the victims of medical negligence and legal malpractice.


Zev T. Gershon, M.D., J.D. (Gershon, Willoughby, Getz & Smith, LLC) earned his medical degree in 1986 from the University of Maryland School of Medicine and graduated cum laude in 1990 from the University of Baltimore School of Law. A member of both the Association of Trial Lawyers of America and the Maryland Trial Lawyers Association, and a fellow of the College of Legal Medicine, Dr. Gershon has lectured locally and nationally on issues of medical malpractice. Dr. Gershon limits his practice to the field of medical negligence and has extensive experience in representing children who have suffered cerebral palsy and other devastating injuries arising from obstetrical negligence.


In this article, reprinted from TRIAL (May 2006, Vol. 42, Issue 5), Gershon and Willoughby urge that strong medical evidence and a solid grasp of scientific literature are essential to meet and defeat every defense argument in a medical malpractice case alleging an infant’s brain damage was caused by delivery room negligence.


When the parents of a child diagnosed


with brain damage in the first year of life come to your office for help, the first ques- tion is usually whether the damage could have been prevented. If it was caused by an injury during the perinatal period (around the time of birth) and could have been avoided with a timely delivery—for example, if the health care providers had reacted to worrisome fetal heart rate trac-


ings—your prospective clients could have a viable medical negligence claim. Birth-related brain damage can be


caused by hypoxia and ischemia—de- creased oxygen and blood flow to the infant’s brain. Defense experts often claim that this kind of brain damage—known as hypoxic ischemic encephalopathy (HIE)—is the result of unknown factors occurring during pregnancy. But the


authors of a 2003 article published in the British medical journal The Lancet reported that “more than 90 percent of term infants with neonatal encephalopa- thy, seizures, or both, but without specific syndromes or major congenital defects, had evidence of perinatally acquired insults, and there was a very low rate of established brain injury acquired before birth.”1


In lay terms, this means that if


a newborn suffers brain damage, it was probably caused by something that oc- curred near the time of birth.


Fetal heart rate tracings Generally speaking, HIE cases fall into


two categories: those involving near-total asphyxia and those involving partial pro- longed asphyxia during labor and delivery. Near-total asphyxia occurs suddenly after events such as a cord prolapse, uterine rupture, or acute placental abruption. Partial prolonged asphyxia occurs over a period of time and can be due to such events as a partial umbilical cord occlu- sion. Blood gas test results and radiological


films can help determine whether the injury occurred around the time of birth, but fetal heart tracings are the key to identifying more precisely when the injury occurred. Brain damage due to near-total asphyxia is relatively easy to time to the


(Continued on page 10) 1


Frances Cowan et al., Origin and Timing of Brain Lesions in Term Infants with Neonatal Encephalopathy, 361 LANCET 736, 740 (2003).


8 Trial Reporter Summer 2006


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