When an infant is tragically injured during childbirth by the negligence of an obstetrician, nurse wife or nurse, the defense, with few exceptions, relies on medical publications. Most of these publications come from the American College of Obstetricians and Gynecologists (ACOG). On the other hand, a plaintiff’s neuroradiology expert would be called to testify about the baby’s time of injury. ACOG has taken most birth trauma injury cases as having occurred in the prenatal stages of childbirth. In other words, during labor and delivery the HIE injury (hypoxic ischemic encephalopathy), which is the basis for the lawsuit, didn’t occur during labor and delivery, but instead occurred as a matter of course during the time prenatally. That’s the standard defense.
ACOG published in January 2003 a document that created strict criteria for establishing the existence of intrapartum HIE. Applying this stringent criteria, ACOG defenders argued that the injury to the baby occurred not during labor and delivery but prenatally. The claim that the baby was asphyxiated intrapartum, that is during labor and delivery, could not have happened because the strict criteria were not met.
The published paper by ACOG took the position that 4-10% of moderate to severe neonatal encephalopathy occurred as a result of hypoxia in the intrapartum period.
For the most part, the ACOG criteria would blame the injury on causes of fetal inflammatory response syndrome (FIRS) or some other genetic malady.
Since the publication of the ACOG position on HIE, it has come to be known by substantial proofs and studies that show that most HIE injuries occurred intrapartum. At least two major textbooks were endorsed with those findings. A lot of the research centers have done neuroimaging.
In brief, the studies showed that most newborns with a brain injury occurred at or near the time of birth and may be subject to post-natal interventions. A textbook, Nelson Textbook of Pediatrics, states that “most neonatal encephalopathy or seizure disorders, in the absence of major congenital malformations or syndromes, appeared to be due to teranatal events rather than prenatal events.” On the basis of MRIs or autopsies that were done on full-term neonates with encephalopathy, it was shown that 80% had suffered acute injuries wherein less than 1% had prenatal injuries and 3% had non-hypoxic ischemic diagnosis.
Rescuing an unborn baby in distress by C-section performed at 39 weeks has been shown to avoid 83% of moderate or severe neonatal encephalopathy.
Accordingly, with advances in imaging and well-reasoned published literature on HIE, it has been shown that the majority of HIE occurs intrapartum.
An excellent article written by Michigan attorneys Jesse M. Reiter and Emily G. Thomas published as the BTLG Newsletter, July 2015, “HIE & the Myth of Preexisting Injury” is extremely well-researched and well-written and is a great resource for these conclusions.
Kreisman Law Offices has been handling birth trauma injury cases and birth injury cases for individuals and families whose newborns have injured or killed by the negligence of a medical provider for more than 40 years in and around Chicago and Cook County, Illinois and its surrounding areas including River Grove, Rosemont, Mount Prospect, Chicago, Waukegan, Wauconda, Lake Bluff, Joliet and Elgin, Ill.
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