Medical Malpractice Lawyers Discuss Birth Injuries & Obstetrical Emergencies

Birth injuries such as hypoxic ischemic encephalopathy (HIE), cerebral palsy and Erb’s palsy are often caused by a delayed or inappropriate response to fetal distress. When the medical team fails to act appropriately and quickly to fetal distress, the baby may experience a lack of oxygen to her brain for too long, causing brain injury that is often permanent.  Fetal distress almost always means that the baby is experiencing oxygen deprivation (birth asphyxia). The medical team will know when a baby is in distress because distress will show up on the fetal heart rate monitor as a non-reassuring heart tracing. When signs of distress or impending distress are evident, the medical team must act quickly to relieve the distress. If it cannot be relieved, the baby must then be delivered very quickly by emergency C-section to prevent permanent brain damage and lifelong conditions such as cerebral palsy, seizure disorders, developmental delays and motor disorders.



In many of our birth injury cases, the cause of the baby’s injury is a prolonged vaginal delivery. Brain injury such as neonatal encephalopathy (NE) and hypoxic ischemic encephalopathy (HIE), and arm paralysis, called Erb’s palsy, often occur when the medical team fails to recognize fetal distress on the monitor and then fails to perform an emergency C-section. Other times, distress is noticed and the team still fails to promptly perform a C-section. Reasons for these negligent acts are discussed below.

Reasons for Delayed Responses to Fetal Distress

  • Failure to use a fetal heart rate monitor or delayed use of fetal heart monitor;
  • Failure to properly attach the fetal heart monitor;
  • Failure to recognize fetal distress on the heart monitor;
  • Failure to notify physicians and/or other medical personnel that fetal distress is occurring;
  • Failure of the labor and delivery unit to have the ability to perform an emergency C-section (inadequate equipment and/or staff);
  • Physician prolongs vaginal delivery, even though distress is evident on the heart monitor. (This increases the risk that delivery instruments, such as forceps and vacuum extractors, and labor drugs, such as Pitocin and Cytotec, will be used. In some cases, these devices and drugs can cause or worsen abnormal and non-reassuring heart tracings.);
  • Failure to have appropriate protocols in place for obstetrical emergencies. These include:
    • Inappropriate number of staff members (obstetricians, nurses, anesthesiologists, etc.) scheduled for each shift;
    • Inadequate system in place for channels of communication among members of the labor and delivery team, including the emergency response team;
    • Failure to quickly get the mother to a surgical suite when an emergency C-section must take place (if the labor and delivery unit is not equipped for a C-section);
    • Failure to have a simple protocol in place for when a physician should abandon testing and perform a quick C-section. The protocol should include how to perform tests while preparing for an emergency C-section. If necessary, some tests may be able to be performed while the mother is being rushed to the surgical suite. If she is already there, tests can be performed while C-section preparation is ongoing.
    • When a baby is experiencing abnormal or non-reassuring heart tracings, a necessary C-section should not be delayed to perform tests, in most cases. The protocol should include alternatives to lengthy tests.

Other causes of birth injuries include failure to give appropriate medications to the mother and baby and delayed resuscitation. Every labor and delivery unit should have enough staff so that if multiple emergency situations occur, each mother has a team whereby at least 2 people can focus on resuscitating the baby (especially when Advanced Cardiac Life Support (ACLS) maneuvers need to be performed) and 2 people can focus on the mother in the event that she also needs ACLS. Although having numerous emergency situations occurring simultaneously may be rare, labor and delivery units must have the capacity to provide emergency interventions for all mothers (and babies) admitted to their units.

Delaying emergency interventions such as a C-section delivery or newborn resuscitation can cause a baby to experience a lack of oxygen to her brain for too long (birth asphyxia), which can cause neonatal encephalopathy, hypoxic ischemic encephalopathy (HIE), periventricular leukomalacia (PVL), seizure disorders, cerebral palsy, motor disorders, developmental delays and other lifelong problems.


Shoulder dystocia is a condition whereby the baby’s shoulder gets stuck on the mother’s pelvis during delivery. This increases the risk of the baby suffering numerous injuries, such as the following:

  1. Brachial plexus injuries and Erb’s palsy. The brachial plexus is a network of nerves in the shoulder and neck area. Sometimes when shoulder dystocia occurs, the physician attempts vaginal delivery and pulls too hard on the baby’s head. This excessive force can cause the brachial plexus nerves to be severely stretched and torn, which can cause the arm to be rotated toward the body and hang limply at the baby’s side. This is called Erb’s palsy, which is characterized by partial or total paralysis of the child’s arm.
  2. Birth asphyxia, neonatal encephalopathy and hypoxic ischemic encephalopathy (HIE). Shoulder dystocia also places the baby at risk of experiencing birth asphyxia, neonatal encephalopathy and hypoxic ischemic encephalopathy. There are a number of reasons birth asphyxia, HIE & NE can occur during a shoulder dystocia situation. Firstly, shoulder dystocia can cause labor to be prolonged or arrested, and a prolonged second stage of labor is associated with birth asphyxia, chorioamnionitis and sepsis, all of which can cause neonatal encephalopathy and hypoxic ischemic encephalopathy.  Secondly, shoulder dystocia can also cause the baby’s umbilical cord to be compressed, which can cause her to experience a lack of oxygen to her brain and birth asphyxia. Umbilical cord compression requires emergency intervention to prevent the baby from having brain damage and HIE.
  3. Clavicular and humerus fractures. When shoulder dystocia occurs, both of the baby’s arms can be injured, such as a fracture of the left arm (humerus) and a brachial plexus injury in the right arm. The baby’s collar bone (clavicle) can also be broken when shoulder dystocia occurs. Broken bones in a newborn are very troubling because often, the medical team cannot see or feel the broken bones and the baby is left in pain for too long.

Indeed, research shows that shoulder dystocia increases the baby’s risk of experiencing brachial plexus injuries, birth asphyxia, hypoxic ischemic encephalopathy, neonatal encephalopathy and bone fractures. All these dangerous events associated with shoulder dystocia can typically be avoided if the medical team quickly recognizes the dystocia and/or abnormal and non-reassuring heart tracings and delivers the baby by prompt C-section delivery.


The fetal heart monitor and other monitoring devices (such as maternal blood pressure cuff and heart monitor) must be utilized as soon as the mother is admitted to the labor and delivery unit, and close observation of the baby’s heart rate and maternal status must occur. Skilled staff must be on hand to properly interpret the fetal heart rate and assess the mother so that distress or impending distress can be quickly recognized and acted upon. A C-section delivery is usually the best and safest way to quickly deliver a baby who is in a dangerous situation or distress.

Adequate personnel must be available to attend to the both the mother and baby, should each require emergency intervention. In addition to the aforementioned standards of care, a neonatal resuscitation team must be readily available at all deliveries in order to administer critical resuscitative maneuvers to the baby. A delay in performing resuscitation – or insufficiently performing resuscitation – can cause the baby to experience a lack of oxygen to her brain and develop neonatal encephalopathy / hypoxic ischemic encephalopathy.

Hospitals must have protocols in place so that these standards of care occur and the incidence of birth asphyxia and birth injuries decreases. In fact, many hospitals throughout the country are developing clear plans of action so that important steps during obstetrical emergencies are not missed. Even when the all the monitors are attached and there are many health care members present, critical steps can be missed during labor and delivery emergencies (e.g. placental abruption, nuchal cord). These conditions and other types of delivery complications often require an emergency C-section to prevent the baby from experiencing a lack of oxygen to her brain (birth asphyxia) and other birth injuries that can cause lifelong problems such as cerebral palsy, periventricular leukomalacia (PVL), and seizure disorders.

Listed below are labor and delivery events that often require emergency intervention, such as a C-section delivery.

Labor and Delivery Complications


Hypoxic ischemic encephalopathy is by far the most common type of neonatal encephalopathy. HIE is caused by a lack of oxygen in the baby’s brain. The lack of oxygen can be caused by decreased oxygen in the baby’s blood (hypoxemia / hypoxia) and / or a decreased or restricted blood flow in the baby’s brain. HIE should be suspected if the baby had to be resuscitated right after birth, had a low Apgar score, experienced seizures soon after birth, had an acidic umbilical cord blood gas sample, is limp, is having breathing problems, and/or is having feeding difficulties.

It is crucial for physicians to promptly diagnose HIE in a baby because treatment must be given within 6 hours of the insult that caused the asphyxia and HIE, which usually means the treatment must be given soon after birth. Hypothermia (brain cooling) treatment for HIE has been shown to halt almost every injurious process that begins to occur when the brain experiences an oxygen-depriving insult. It helps prevent the child from developing cerebral palsy and it can decrease the severity of the CP.


Hypoxic ischemic encephalopathy (HIE) is the most common cause of newborn seizures. Seizures occur when the brain is injured and abnormal, continuous electrical discharges take place. A baby experiencing a seizure may have involuntary jerking movements that can last several seconds or a few minutes. Often, however, there are no outward signs that a baby is having a seizure. Thus, babies suspected of having HIE must be frequently tested by electroencephalography (EEG) in order to determine if seizures are occurring. Many neonatal intensive care units (NICUs) now have the equipment to perform continuous EEG monitoring on newborns.

Seizures can cause permanent brain injury, so they must be promptly recognized and treated. After initial management of airway and cardiovascular support, and identification and treatment of the underlying cause of the seizures, the physician will typically initiate antiepileptic drug therapy if the seizures continue. Common medications include phenobarbital, diazepam, lorazepam, and phenytoin.


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 with birth injuries for almost 3 decades.

Birth Injury lawyer Jesse Reiter, president of ABC Law Centers, has been focusing solely on birth injury cases for over 28 years, and most of his cases involve hypoxic ischemic encephalopathy (HIE) and cerebral palsy. 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 birth injury, such as cerebral palsy, a seizure disorder or hypoxic ischemic encephalopathy (HIE), the award winning birth injury lawyers at ABC Law Centers can help. We have helped children throughout the country obtain compensation for lifelong treatment, therapy and a secure future, and we give personal attention to each child and family we represent.

Tell us your story.

Our nationally-recognized birth injury firm has numerous multi-million dollar verdicts and settlements that attest to our success and no fees are ever paid to our firm until we win your case.

Contact us


  1. Executive summary: Neonatal encephalopathy and neurologic outcome, second edition. Report of the American College of Obstetricians and Gynecologists’ Task Force on Neonatal Encephalopathy. Obstet Gynecol 2014; 123:896.
  2. Wu YW, Backstrand KH, Zhao S, et al. Declining diagnosis of birth asphyxia in California: 1991-2000. Pediatrics 2004; 114:1584.
  3. Graham EM, Ruis KA, Hartman AL, et al. A systematic review of the role of intrapartum hypoxia-ischemia in the causation of neonatal encephalopathy. Am J Obstet Gynecol 2008; 199:587.
  4. Thornberg E, Thiringer K, Odeback A, Milsom I. Birth asphyxia: incidence, clinical course and outcome in a Swedish population. Acta Paediatr 1995; 84:927.
  5. Lee AC, Kozuki N, Blencowe H, et al. Intrapartum-related neonatal encephalopathy incidence and impairment at regional and global levels for 2010 with trends from 1990. Pediatr Res 2013; 74 Suppl 1:50.
  6. Chau V, Poskitt KJ, Miller SP. Advanced neuroimaging techniques for the term newborn with encephalopathy. Pediatr Neurol 2009; 40:181.
  7. Demissie K, Rhoads GG, Smulian JC, et al. Operative vaginal delivery and neonatal and infant adverse outcomes: population based retrospective analysis. BMJ 2004; 329:24.
  8. Boulet SL, Alexander GR, Salihu HM, Pass M. Macrosomic births in the united states: determinants, outcomes, and proposed grades of risk. Am J Obstet Gynecol 2003; 188:1372.
  9. Moczygemba CK, Paramsothy P, Meikle S, et al. Route of delivery and neonatal birth trauma. Am J Obstet Gynecol 2010; 202:361.e1.
  10. Hughes CA, Harley EH, Milmoe G, et al. Birth trauma in the head and neck. Arch Otolaryngol Head Neck Surg 1999; 125:193.
  11. Rosenberg A. Traumatic birth injury. NeoReviews 2003; 4:270.