Medical Malpractice During Labor and Delivery Leads to Birth Injuries

A medical professional’s mistake during labor and delivery can cause babies to have permanent birth injuries, including brain damage, hypoxic-ischemic encephalopathy, brain bleeds, developmental delays, intellectual disabilities, and more. Medical malpractice lawyers help families impacted by medical malpractice secure their child’s future and help make sure negligent doctors are held accountable.

Medical malpractice occurs when a healthcare provider fails to follow the standard of care when treating a patient. Standard of care is defined as what a reasonably prudent health care provider would or would not have done under the same or similar circumstances in caring for a patient. When health care providers deviate from standards of care, it is negligence. When negligence causes a patient to be injured, it constitutes medical malpractice. Babies who are victims of medical malpractice often have birth injuries such as hypoxic-ischemic encephalopathy (HIE), developmental delays, and cerebral palsy.

Medical negligence is an epidemic. A 2013 study published in the Journal of Patient Safety found that medical errors cause an estimated 440,000 deaths a year. This makes preventable harm in the hospital the third leading cause of death in the U.S., right behind cancer and heart disease. Babies are especially vulnerable patients who are often affected by medical malpractice that occurs during or near the time of birth. Common birth injuries include birth asphyxia, hypoxic-ischemic encephalopathy (HIE), cerebral palsy, seizures and developmental delays.

In a recent study that compared 13 industrialized countries, the U.S. had the highest infant mortality rate and the 3rd highest post-neonatal mortality rate. Birth injuries affect an estimated 28,000 babies each year.

Medical malpractice attorneys carefully analyze the medical records of their clients to determine if negligence caused a client’s injury. The attorneys assess the nature and extent of the client’s injury, review all aspects of the medical records – including ultrasounds, MRIs, and lab results – and take depositions of the physicians and other healthcare members suspected of causing the client’s injury. These attorneys look at records not just from the hospital stay, but also from physician office visits, rehabilitation/therapy visits, prenatal care records, and post-hospital brain scans and rehabilitation records for babies.

Attorneys also get experts to review the records and they are also used to help support claims that specific incidents of negligence caused the patient’s injury. Sometimes forensics experts are used to help determine if medical personnel tried to cover up evidence of negligence in the medical records.

When a mother is admitted to a labor and delivery unit, the obstetrician must properly evaluate her and the baby, enter a note and plan of action in her medical chart, and begin monitoring the baby with a fetal heart monitor right away.

In the labor and delivery unit, medical negligence often occurs because the obstetrician doesn’t follow these steps, leaving the mother and baby with inadequate monitoring and care. In addition, nurses and other members of the medical team often fail to properly manage the mother and baby during this critical time. Improper monitoring can cause fetal distress and obstetrical emergencies to be missed, which can cause the baby to experience a lack of oxygen to the brain (birth asphyxia).

There are multiple factors that play into medical negligence during birth. These can include:

• Inattention during labor
• Lack of skill
• Delayed delivery

If you feel that you did not receive proper care during your labor and delivery, it may be a good idea to speak to a medical malpractice attorney who can review your medical records and help you make sense of what happened.

Things Hospitals Are REQUIRED to Do

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.

Medical malpractice can come in a variety of forms. Sometimes it might come in the form of doing something incorrectly, but just as often it might be that medical staff failed to do something important. Inaction and incorrect action can both be grounds for malpractice. Examples of this include:

• 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.
  • Failure to give appropriate medications to the mother and baby .
  • Failure to resuscitate in a timely fashion (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 C-section or newborn resuscitation.

When a mother is admitted to the labor and delivery unit, it is common for a nurse to begin evaluating the mom and baby. It’s very important that fetal / maternal evaluation and continuous monitoring of the baby’s heart rate begin right after admission. Heart tracings that are “nonreassuring” mean a baby is experiencing oxygen deprivation.

It is also critical that an obstetrician assess the mother and baby right away. It is the standard of care for an obstetrician to evaluate both the mother and baby, enter a note with a plan of action in the mother’s chart, and write orders shortly after the mother is admitted. A mother’s blood pressure, heart rate, and physical signs (such as abdominal and back pain and lack of fetal movement) can give important information regarding impending or current fetal distress.

If the mother arrived with any signs or symptoms indicative of fetal distress or a risky pregnancy condition – or if the fetal monitor shows that the baby is in distress – the obstetrician must be promptly contacted for immediate evaluation and care of the mother and baby.

A patient is considered “low risk” if she is not in active labor and the following conditions are present:

• The baby is at 37–41 weeks of gestation
• The baby has an appropriate weight for gestational age
• The baby has a Category I electronic fetal monitoring strip (reassuring tracings) on admission (or a reassuring auscultation and a note written by the physician if the mother refuses electronic fetal monitoring)
• There is absence of moderate or thick meconium in the amniotic fluid
• The baby is in the normal, head-first position (vertex presentation)
• There are no medical or obstetrical complications

If the maternal and fetal conditions fall outside of these parameters or if the mother is in active labor, an obstetrician must assess the mother and baby right away and provide close and continuous monitoring. When conditions do not fall within the parameters listed above, maternal / fetal status is generally considered high risk.

At a minimum, the obstetrician’s initial assessment of the mother and baby should include:

• A review and summary of the pregnancy / prenatal course
• An evaluation of the status of labor, including a description of uterine activity, cervical dilation and effacement, and fetal station and presentation
• A physical exam (including an estimated fetal weight)
• An evaluation of fetal status, including interpretation of fetal heart monitoring strips
• The plan for delivery

During the first stage of labor, evaluations must occur at regular intervals, with high risk patients being evaluated much more frequently. Of course, continuous monitoring should occur for every mother admitted to the labor and delivery unit.

Evaluations during the first stage of labor should, at a minimum, include the following:

• Assessment of the mother’s status, including level of pain during labor
• Assessment of the fetal status
• Characterization of uterine activity
• A description of findings of the vaginal exam, if performed, including cervical dilation and effacement, fetal station, change in status of membranes, and progress since the last exam
• A summary of the mother and baby’s status
• The labor and delivery plan, including plans for or performance of medical interventions and pain management

Each evaluation must be documented in the mother’s chart.

During the second stage of labor, the following must be recorded at regular intervals:

• Maternal and fetal status
• Fetal station and position
• Presence of any swelling of the baby’s scalp / head and molding
• The delivery plan

The fetal heart tracings should be evaluated at least every 5 minutes, with alarms appropriately set. If nonreassuring heart tracings occur, the attending obstetrician should promptly evaluate the baby’s status and quickly initiate efforts to resolve the fetal distress. While attempts are being made to relieve the baby’s distress, preparations for an emergency C-section delivery should be started.

At a minimum of every hour – much more frequently in high risk situations – the obstetrician, along with nurses and other members of the mother’s medical team, should discuss the medical plan and document it in the mother’s chart.

It is crucial that the medical team communicate with each other. Research shows that breakdown in communication is a common cause of medical negligence, including birth injury. Of course, there should be an obstetrician immediately available for every mother admitted to the labor and delivery unit, and conditions that are not low risk require continuous care by the obstetrician.

Mothers with high-risk pregnancies need additional careful monitoring and care. High-risk health conditions include:

• History of a nonreassuring fetal heart tracing
• The baby in an abnormal presentation, such as breech position
• History of prior C-section delivery
• The mother is pregnant with twins, triplets or more
• There is significant maternal illness
• Pitocin or Cytotec were used to start or speed up labor
• There is abnormality of active or second stage labor
• The baby is experiencing a nonreassuring heart tracing
• There is thick meconium in the amniotic fluid
• There is heavy vaginal bleeding

These conditions require continuous monitoring and preparation for an emergency C-section, because these conditions significantly increase the risk that the baby may have birth asphyxia.

Continuous fetal heart monitoring and interpretation is very important during labor. This technology can help detect fetal distress, a condition where the baby’s heart rate begins to fluctuate dangerously due to oxygen deprivation. Babies can show no signs of distress and appear perfectly healthy during labor. At any time, though, something can go wrong – such as a placental abruption or tight nuchal cord – that can cause the baby to experience oxygen deprivation. It is important that fetal distress be quickly recognized so the baby can be promptly delivered.

There is no way to directly help the baby while it is still in the womb, which means it is important that labor and delivery units be able to perform an emergency C-section promptly to get the baby out.

This means that the unit must have enough obstetricians available to perform surgery on every mother admitted to the unit. There must also be adequate equipment, surgical suites and medical personnel to perform emergency C-sections. In addition, there should be enough “code” teams available in the event that both the mother and baby need emergency intervention right after delivery. One of the largest causes of birth injury is delayed C-section – when an emergency C-section is needed, but medical professionals don’t perform it fast enough.

Note: Sometimes physicians try to force a vaginal delivery, often using risky delivery drugs (Pitocin and Cytotec) and delivery instruments (forceps and vacuum extractors). This often just prolongs labor and delivery when what the baby really needs is an emergency C-section. In addition, Pitocin and Cytotec can cause the baby to experience oxygen deprivation and forceps and vacuum extractors can cause brain bleeds and hemorrhages.

Conditions that can cause birth asphyxia, thereby requiring prompt C-section delivery, include:

• Umbilical cord problems, such as a nuchal cord (cord wrapped around baby’s neck), umbilical cord prolapse, short umbilical cord and cord in a true knot
• Ruptured uterus
• Preeclampsia / eclampsia
• Placental abruption
• Placenta previa
• Anesthesia mistakes, which can cause blood pressure problems in the mother, including a hypotensive crisis. This can greatly decreases the supply of oxygen-rich blood going to the baby.
• Oligohydramnios (low amniotic fluid)
• Premature rupture of the membranes (PROM) / premature birth
• Prolonged and arrested labor
• Intracranial hemorrhages (brain bleeds), which can be caused by a traumatic delivery. Forceps and vacuum extractors can cause brain bleeds. Sometimes intense contractions (hyperstimulation) caused by labor induction drugs (Pitocin and Cytotec) can cause head trauma. Mismanagement of cephalopelvic disproportion (CPD), abnormal presentations (face or breech presentation), and shoulder dystocia also put a child at risk of having a brain bleed.
• Hyperstimulation caused by Pitocin and Cytotec can also cause oxygen deprivation that gets progressively worse.
• Fetal stroke
• Postmaturity syndrome, baby past due date
• Failure to quickly deliver a baby when fetal distress is evident on the fetal heart rate monitor (delayed emergency C-section)
• Cephalopelvic disproportion (CPD)
• Total placenta previa

Complications during labor and delivery can spring up unexpectedly with very little warning. Medical staff are trained in handling emergency situations, and should be ready and able to provide prompt medical care in case of the following conditions:

• Breech presentation
• Anesthesia mistakes, which can cause blood pressure problems in the mother, including a hypotensive crisis
• Ruptured uterus (womb)
• Preeclampsia / eclampsia
• Placental abruption
• Placenta previa
• Umbilical cord problems (like nuchal cord, umbilical cord prolapse, short umbilical cord or true knot)
• Oligohydramnios (low amniotic fluid)
• Premature rupture of the membranes (PROM) / premature birth
• Prolonged and arrested labor
• Intracranial hemorrhages (brain bleeds), which can be caused by traumatic delivery, forceps and vacuum extractors, or hyperstimulation caused by labor induction drugs.
• Cephalopelvic disproportion (CPD)
• Abnormal presentations (face or breech presentation)
• Shoulder dystocia
• Fetal stroke

Some babies are diagnosed with birth injuries, such as hypoxic ischemic encephalopathy, shortly after birth. Other times, a baby’s birth injury may not be noticed until the child is 5 or 6 years old and certain developmental milestones are missed. If your baby is missing developmental milestones, has a speech delay or abnormal muscle tone, it is crucial to make sure they have been examined by a neurologist and that a brain scan such as an MRI has been performed to determine if they have a brain injury. Brain injury is an evolving process; the injury can continue for days and weeks after the initial insult to the brain.

Babies with birth injuries may have health problems after birth or as they develop.

Signs of Birth Injury In a Newborn

• Trouble breathing
• Need resuscitation after birth
• Low Apgar scores
• Acidic cord blood gas samples
• Trouble latching on or feeding
• Abnormal muscle tone that makes them too stiff or too floppy
• Seizures

One of the most common signs of birth injury in babies is seizures after birth, which can indicate a type of birth injury called hypoxic-ischemic encephalopathy (HIE). 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 further permanent 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.

A very important question to ask a potential obstetrician is how competent the staff is at interpreting fetal heart rate tracings. It is crucial to make sure that staff is present to review the tracings, and that the staff members – especially the obstetrician – have experience and skill in interpreting the tracings. Close monitoring of a baby’s heart rate is always important during labor and delivery. This is because the fetal heart rate is often the only indication of how well the baby is doing.

Questions a pregnant woman may ask prospective obstetricians to help determine which one to select for prenatal care and delivery include:

1. How many deliveries have you performed?
2. Will my baby’s heart rate be continuously monitored as soon as I’m admitted to the labor and delivery unit?
3. Are you skilled in fetal heart rate tracing interpretation, and how many years of experience do you have?
4. Will someone skilled in fetal heart rate interpretation be present at all times when I’m in labor?
5. If my baby gets in trouble, do you have the ability to deliver my baby very quickly by emergency C-section? If my baby shows signs of distress and I cannot quickly deliver her, do you and the hospital have the capacity to quickly deliver my baby by C-section? Will I be in close proximity to a room where a C-section can quickly be performed?
6. Will there be a second physician instantly available so that if both my baby and I are in distress, there is one physician focusing on me and one focusing on my baby?
7. How many years of experience do you have in performing emergency C-sections?
8. Is there an additional physician immediately available in the event that multiple dangerous conditions occur simultaneously, such as my baby and I having difficulty at the same time?
9. Is there proper resuscitation equipment immediately available in case my baby needs to be resuscitated at birth? Will there be a skilled neonatal resuscitation team immediately available that can put a breathing tube in my baby (intubate) if needed?
10. Will you please thoroughly explain the risks and benefits of – and alternatives to – any medications (such as Pitocin and Cytotec to induce or speed up labor) or delivery instruments you are going to use (such as vacuum extractors)?

If an obstetrician decides to utilize drugs or delivery instruments, it is important to ask the obstetrician how much experience she has with using the drugs or vacuum extractors. This is especially true when it comes to delivery instruments, which are very risky. C-section risks and benefits must also be thoroughly discussed.

If the obstetrician leaves the room during labor, the mother should not hesitate to ask the staff members present if they are skilled at fetal heart rate interpretation and if they have taken a proficiency exam. Research shows that a significant number of birth injuries occur when nonreassuring fetal heart tracings are not recognized, or if they are recognized, there is a breakdown in communication among the staff. An example would be when the staff fails to communicate abnormal heart tracings to the obstetrician, and then the baby is not quickly delivered.

Birth injuries can be the result of:

• Negligent prenatal care
• Negligent care during labor and delivery
• Negligent management of a baby after birth (including in the neonatal ICU or during resuscitation)

If you think negligence played a role in you or your child’s injury, you should contact a birth injury attorney who has experience handling cases that involve the specific injury with which you need help. The attorney should be contacted as soon as possible because there is a statute of limitations (which varies from state to state). This means that certain cases have only a limited time in which a case can be filed.

Certain diagnoses are commonly associated with birth injuries and medical malpractice. If your child has one or more of the following conditions, you may want to speak to a birth injury attorney:

• Birth asphyxia
• Brain bleeds (cephalohematoma, intracranial hemorrhages, etc.)
• Spinal cord injuries
• Erb’s palsy
• Cerebral palsy
• Hydrocephalus
• Hypoxic ischemic encephalopathy (HIE)
• Periventricular leukomalacia (PVL)
• Neonatal encephalopathy
• Permanent brain damage
• Seizure disorders
• Intellectual disabilities
• Developmental delays
• Learning disabilities
• Motor disorders and low muscle tone
• Microcephaly

If your baby had head cooling, whole-body cooling, or was put on a cooling blanket or pad, you may also want to speak to a birth injury attorney. This treatment, called hypothermia therapy, is only provided to babies with hypoxic-ischemic encephalopathy, which is very strongly associated with medical malpractice. Hypothermia therapy helps treat and decrease the severity of brain injury related to oxygen deprivation. But it is always worth investigating what caused that oxygen deprivation in the first place.