What are some mistakes that can occur in the NICU?

There are many reasons a newborn may need to be admitted to the neonatal intensive care unit (NICU).  Some babies require days or weeks of intensive care.  During the neonatal period, babies are very fragile and must be closely monitored and carefully treated.  Even slight missteps in a baby’s medical care can have major effects on the baby’s health and cause permanent brain damage.  Some babies are admitted to the NICU because they experienced birth asphyxia (a lack of oxygen to the brain during or near the time of delivery), which often causes seizures and neonatal encephalopathy or hypoxic ischemic encephalopathy (HIE).  If babies with HIE are not properly cared for or treated, the brain damage can get worse and a baby may be left with cerebral palsy. Some babies are admitted to the NICU due to prematurity and/or because they are having trouble breathing.  These fragile babies must be carefully monitored and treated.  If the medical team fails to do this, the baby can end up with permanent brain injury and conditions such as HIE, periventricular leukomalacia (PVL), sepsis, meningitis, cerebral palsy, seizure disorders, intellectual disabilities and developmental delays.  Common areas of negligence in the NICU are listed below.


Common NICU Errors

NICU errors refer to NICU staffs’ failure to properly carry out a particular technique or procedure correctly and/or in a timely fashion. NICU errors can include failures in diagnosing and treating problems related to the following areas:

  • Oxygenating and ventilating the baby (including overventilation injuries caused by the breathing machine)
  • Treating breathing problems (such as respiratory distress syndrome (RDS) and apnea)
  • Giving proper doses of surfactant to premature babies
  • Diagnosing and properly treating conditions such as jaundice and hypoglycemia
  • Monitoring the baby’s health
  • Delaying resuscitation at birth or after birth, or failure to perform necessary resuscitation maneuvers
  • Inserting a breathing tube (intubation errors)
  • Treating meconium aspiration syndrome
  • Diagnosing and treating infections such  as Group B strep (GBS) and neonatal herpes
  • Diagnosing and treating sepsis
  • Diagnosing and treating brain bleeds (such as intracranial hemorrhages, intraventricular hemorrhages and subgaleal hemorrhages)
  • Recognizing and managing encephalopathy and other brain problems ( such as increased intracranial pressure)
  • Recognizing and treating seizures
  • Promptly diagnosing and treating hypoxic ischemic encephalopathy (HIE)
  • Improperly inserting and managing feeding tubes, IVs, or central lines
  • Administering medications

Neonatal Resuscitation Errors

Sometimes a baby fails to breathe or isn’t breathing properly right after birth.  The newborn may also have no heartbeat or an irregular heart rhythm.  Any delay in resuscitation can cause the baby’s brain to be severely oxygen deprived.  This could also result when staff fails to quickly and properly insert a breathing tube into the baby’s upper airway when needed (i.e., when the baby has thick airway secretions or is not breathing).

Inserting a breathing tube (intubation) in a newborn requires a lot of skill.  If the medical team lacks skill or isn’t careful, the tube could be inserted into the baby’s esophagus (which means no air will be going into the lungs) or into just one side of the upper airway (which means only one lung will be getting air).

In addition to intubating, the medical team and resuscitation specialist must administer proper medications to help ensure adequate heart function, blood flow and blood pressure in the baby.  If the baby is premature, they should provide surfactant to prevent respiratory distress. All of these resuscitation maneuvers need to take place immediately after birth.  It is the standard of care to have resuscitation specialists immediately available at every birthing center.

Failure to have a resuscitation specialist immediately available when needed, and failure to quickly perform critical resuscitation maneuvers (including intubation, chest compressions and heart defibrillation if necessary) can cause permanent brain damage (such as HIE and cerebral palsy) in the baby.

Treating Infant Infection 

If a mother has an infection during pregnancy, her physician must promptly diagnose and treat it because many infections can be passed to the baby at birth.  These dangerous infections include Group B strep (which are associated with urinary tract infections (UTIs) in the mother) and herpes.  GBS can cause a baby to develop sepsis and meningitis, which can lead to cerebral palsy.  Herpes can cause the baby to have encephalitis, which can also cause cerebral palsy.  Infections must be quickly recognized and treated in a newborn in order to prevent permanent brain damage and even death.

Infant Breathing Injuries in the NICU: Overventilation, Hypoxia and Untreated Apnea

When a baby is getting help from a breathing machine, the medical team must pay very careful attention to the settings on the ventilator to make sure the baby is (a) getting enough oxygen and (b) getting rid of enough carbon dioxide (CO2).  Sometimes the breaths given to the baby are too fast and big, causing the baby to get rid of too much CO2 (hypocarbia).  When the baby’s CO2 level is below normal for too long, the brain’s blood vessels can constrict, decreasing blood flow within the brain.  This can cause permanent brain damage and conditions such as periventricular leukomalacia (usually seen in premature babies), cystic PVL and cerebral palsy.

Sometimes the breathing machine causes the baby to have a pneumothorax (a hole or holes in the lungs).  This is very dangerous and even life-threatening, because the hole can cause air to flow into the space just outside the baby’s lungs.  As this space becomes filled with more and more air, it causes the lung and blood vessels to be increasingly restricted, resulting in oxygen deprivation that causes hypoxic ischemic encephalopathy (HIE), seizures and cerebral palsy.

In addition to preventing overventilation problems, the medical team must make sure the baby is getting enough oxygen and is not experiencing significant apnea, a common condition in premature babies and babies with brain injuries.  Apneic events are periods in which the baby stops breathing for 20 seconds or more.

Significant oxygen deprivation and apnea can cause a newborn to have HIE.  Hypocarbia caused by overventilation can cause periventricular leukomalacia (PVL) and cystic PVL, while a pneumothorax can cause HIE.  Both PVL and HIE can manifest themselves in form of seizures and cerebral palsy.

Mismanaged Neonatal Encephalopathy, Brain Bleeds and Meningitis

Newborn babies’ brains are very delicate.  The medical team must manage brain inflammation and make sure there is adequate blood flow to the brain, or neonatal encephalopathy (NE) (the umbrella term for any type of brain dysfunction caused by a brain insult) may occur. NE can occur due to brain bleeds, strokes, sepsis, oxygen deprivation, HIE, or meningitis (though HIE is the most common cause). To prevent NE, medical staff must properly treat infections and brain bleeds, and provide the baby with blood transfusion if there is blood loss due to brain bleeds/hemorrhages.

When a baby has NE or any of the medical conditions that can cause NE, it is critical for the medical team to make sure the baby has adequate blood flow and blood pressure, is getting enough oxygen, has normal CO2 levels, and does not have brain pressures that are too high.  Failure to do this can cause the baby’s NE to get worse.  The more severe a baby’s encephalopathy, the more likely it is that the baby will have hypoxic ischemic encephalopathy (HIE), seizures and cerebral palsy.

Hypothermia Treatment Errors and Hypoxic Ischemic Encephalopathy (HIE)

As discussed, HIE is the most common cause of neonatal encephalopathy.  There is a treatment for HIE (called hypothermia therapy), but it must be given within 6 hours of the insult to the brain that caused the HIE (which usually means it must be given within 6 hours of birth).  Hypothermia therapy involves cooling the brain to just a few degrees below normal for 72 hours. It has been shown to halt almost every injurious process that starts when the brain suffers an oxygen-depriving insult, and research shows it can help prevent cerebral palsy or reduce CP severity.  Failure to diagnose HIE in time and failure to give hypothermia treatment to babies who need it is negligence.

Failure to Treat Neonatal Seizures

Hypoxic ischemic encephalopathy (HIE) is the most frequent cause of seizures in a newborn.  Seizures occur when the brain is injured and abnormal, causing continuous electrical discharges to take place.  Babies with seizures may have involuntary jerking movements that can last several seconds or a few minutes, but often there are no outward signs of seizures.  Thus, babies suspected to have HIE must be frequently tested using electroencephalography (EEG) in order to determine if seizures are occurring.

Seizures can cause permanent brain damage, so they must be promptly recognized and treated.  After managing the baby’s airway, heart, blood pressure and circulation issues (and determining the underlying cause of the seizures), the physician will typically start anti-epileptic drug therapy if the seizures continue.  Failure to promptly diagnose and treat seizures in a baby is negligence and it can cause further brain injury and cerebral palsy.

Failure to Diagnose and Treat Neonatal Hypoglycemia

Neonatal hypoglycemia (NH) (one of the leading causes of neonatal brain injury) occurs when the baby’s blood sugar (glucose) falls to unsafe levels in the first few days after birth.  Babies need glucose for energy and brain function.

Hypoglycemia is not difficult to diagnose in a newborn and is usually very easily treated.  However, untreated NH can have serious consequences for the baby. Glucose is a major component of energy in all of the body’s organs, but it is almost exclusively the only source of energy in the brain.  When brain cells receive insufficient glucose, they start to die, which can cause cerebral palsy and seizures.  Failure to promptly diagnose and treat neonatal hypoglycemia is negligence.

Failure to Diagnose and Treat Jaundice

Jaundice is yellowing of the baby’s skin and eyes, caused by high blood levels of bilirubin (a product of red blood cell breakdown).  All babies experience a period of rapid red blood cell breakdown after birth and may look a little yellow. While most babies can easily process the bilirubin, some babies have red blood cells breaking down faster than usual, so the body can’t easily metabolize it.  When this happens, bilirubin builds up to dangerous levels in the blood, which can lead to bilirubin entering the brain tissue.  Bilirubin is toxic to the brain and can cause a form of permanent brain damage called kernicterus, which often leads to cerebral palsy.

High bilirubin levels are easy to diagnose and treat.  Treatment simply requires the baby to be placed under a particular type of light (phototherapy).  In more serious cases, the baby may need a blood exchange transfusion.  Failure to promptly treat high bilirubin levels in a newborn is negligence.

Reiter & Walsh, P.C. | Advocates for Children with Birth Injuries Since 1997

If you are seeking the help of a lawyer, it is very important to choose a lawyer and firm that focus solely on birth injury cases.  Reiter & Walsh ABC Law Centers is a national birth injury law firm that has been helping children for almost 3 decades.

Birth injury lawyer Jesse Reiter, president of the firm, has been focusing solely on birth injury cases since the beginning of his career. Most of his cases involve hypoxic ischemic encephalopathy (HIE) and cerebral palsy.  The partners of the firm, Jesse Reiter and Rebecca Walsh, were recently recognized as being two of the best medical malpractice lawyers in America by U.S. News and World Report.  In fact, U.S. News and World Report has given Jesse the honor of being one of the “Best Lawyers in America” every year since 2008.  The lawyers at ABC Law Centers have won numerous awards for their advocacy of children and are members of the Birth Trauma Litigation Group (BTLG) and the Michigan Association for Justice (MAJ).

If your child was diagnosed with a permanent disability, the award-winning lawyers at ABC Law Centers can help.  We have helped children throughout the country obtain compensation for lifelong treatment and therapy, and we give personal attention to each child and family we represent.  We have a track record of numerous multi-million dollar verdicts and settlements that attest to our success. Email or call Reiter & Walsh ABC Law Centers at 888-419-2229 for a free case evaluation.  Our award winning birth injury lawyers are available 24/7 to speak with you.

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