Neonatal Intensive Care Unit (NICU) Errors & Malpractice

Some babies spend the first days, weeks, or months of their lives in the neonatal intensive care unit (NICU). All newborns are fragile, but those in the NICU require especially close monitoring and careful treatment. Even slight missteps in a baby’s medical care can have major negative effects, including permanent brain damage. Common reasons for admission into the NICU include prematurity, trouble breathing, infection, or having experienced birth asphyxia (a lack of oxygen to the brain during or near the time of delivery). If improperly managed, all of these conditions can result in serious, lifelong conditions such as hypoxic-ischemic encephalopathy (HIE), cerebral palsy (CP), seizures disorders, periventricular leukomalacia (PVL), and developmental disabilities. Nine common areas of negligence in the NICU are listed below.


1. Newborn 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 deprived of oxygen. In addition, failure to quickly and properly insert a breathing tube into the baby’s upper airway when the baby needs it it (i.e., in cases of thick airway secretions or when the baby is not breathing) can also cause major complications in the baby, including oxygen deprivation.

Insertion of 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 air will be unable to reach the baby’s lungs. Another intubation complication occurs when the tube is inserted into just one side of the upper airway, which means only one lung will be getting air.

In addition to intubation, 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, surfactant should be given to help 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 the immediate help of a resuscitation specialist when needed, and failure to quickly perform critical resuscitation maneuvers (such as intubation, chest compressions, and defibrillation of the heart), can cause permanent brain damage in the baby.  Resultant conditions include hypoxic-ischemic encephalopathy (HIE) and cerebral palsy.

2. Breathing Assistance Errors

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 getting enough oxygen and getting rid of enough carbon dioxide (PCO2). Sometimes the breaths given to the baby are too fast and big, causing the baby to get rid of too much CO2, which is called hypocarbia. When the baby’s PCO2 level is below normal for too long, blood vessels in the brain can become constricted, which causes a decreased flow of blood in the brain. Reduced blood flow in the brain 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, which is a hole in the lungs. This is life-threatening because the hole can cause air to go into a 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, which can cause the baby to become severely deprived of oxygen. Pneumothorax requires timely placement of a chest tube.  Failure to timely place a chest tube can cause hypoxic-ischemic encephalopathy (HIE), seizures, and cerebral palsy.

Hypocarbia and a pneumothorax are both very dangerous to the baby. In addition to preventing these overventilation problems, the medical team must make sure the baby is getting enough oxygen and is not experiencing significant apnea. Apneic events are periods in which the baby stops breathing for 20 seconds or more. Apnea is common in premature babies and babies who have brain injuries. Significant oxygen deprivation and apnea can cause a newborn to have HIE. Hypocarbia caused by hyperventilation can cause periventricular leukomalacia (PVL) and cystic PVL, and a pneumothorax can cause HIE. PVL and HIE can cause seizures and cerebral palsy.

3. Mismanagement of Intracranial Hemorrhages (Brain Bleeds)

Intracranial hemorrhages, also known as brain bleeds, have the potential to cause severe brain damage; early recognition and proper management is essential in order to prevent lifelong disabilities. Medical professionals should know to be on high alert for brain bleeds in babies who experienced a difficult delivery, especially if forceps or vacuum extractors were involved. Treatment for brain bleeds includes transfusions and other therapies to increase blood volume and pressure. In cases of significant subdural hematomas, surgery may be necessary. Seizures also sometimes occur as the result of brain bleeds; these should be treated with antiepileptic drugs. If seizures are left untreated, they can cause additional brain damage and increase the chances of a baby developing a serious health condition (see “Failure to Treat Neonatal Seizures”).

4. Untreated or Improperly Treated Infections

Some babies in the NICU have serious infections such as chorioamnionitis and villitis, sepsis and meningitis, and herpes simplex virus encephalitis. Common bacteria include group B streptococcus and e-coli. In many cases, it is possible to prevent an unborn baby from getting such infections in the first place, even if the mother is infected. However, if obstetricians fail to  timely treat and prevent infection, then it falls on NICU staff to quickly diagnose and treat the newborn infection. Untreated or improperly treated neonatal infections can result in severe inflammation, a decrease in the flow of oxygenated blood to the brain, brain damage and permanent disabilities such as cerebral palsy.

5. Undiagnosed HIE and Failure to Provide Hypothermia Therapy

As discussed, HIE is the most common cause of neonatal encephalopathy. There is a treatment for HIE, but it must be given within six hours of the insult to the brain. This usually means it must be given within six hours of birth. Treatment for hypoxic-ischemic encephalopathy involves cooling the brain to just a few degrees below normal for 72 hours.  This treatment is called hypothermia therapy, and it has been shown to halt and treat the injurious process that starts to occur when the brain suffers an oxygen-depriving insult.  Research shows that in many cases, hypothermia treatment for HIE can help prevent cerebral palsy or reduce the severity of the CP.  Failure to timely diagnose HIE and give hypothermia treatment to babies who need it is negligence.

6. 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, resulting in continuous electrical discharges. A baby having 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.

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 for seizures.  Failure to promptly diagnose and treat seizures in a baby is negligence, and it can cause further brain injury and cerebral palsy.

7. Failure to Quickly Diagnose and Treat Neonatal Hypoglycemia

Neonatal hypoglycemia (NH) 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.

Severe NH is one of the leading causes of neonatal brain injury. Hypoglycemia is not difficult to diagnose in a newborn, and usually it is very easily treated. Untreated NH, however, can have serious consequences for the baby because glucose is a major component of energy in all organs  the brain’s energy comes almost exclusively from glucose.  When brain cells receive insufficient glucose, they start to die.  This can cause brain damage, cerebral palsy and seizures.  Failure to promptly diagnose and treat neonatal hypoglycemia is negligence.

8. Jaundice Mismanagement

Jaundice is the yellowing of the baby’s skin and eyes caused by too much bilirubin in the blood.  Bilirubin is a product of red blood cell breakdown. All babies experience a period of rapid red blood cell breakdown after birth, and many develop mild jaundice. In some babies, however, red blood cells break down very quickly, and the body can’t easily metabolize the bilirubin.  When this happens, bilirubin builds up to dangerous levels in the blood, and may enter brain tissue. This is a problem because it is toxic to the brain, and can cause a form of permanent brain damage called kernicterus. Kernicterus often leads to cerebral palsy.

High bilirubin levels are easy to diagnose and treat. Treatment may simply require the baby to be placed under blue-spectrum lights, which decreases bilirubin levels. This is known as phototherapy.  Another version of phototherapy involves something called a fiber optic blanket. In more serious cases, the baby may need a blood transfusion.  Blood transfusions must be promptly given to babies with high bilirubin levels in order to avoid kernicterus. In addition,there must be treatment of any underlying causes of jaundice, such as infection.  Failure to promptly treat jaundice and high bilirubin levels in a newborn is negligence.

9. Other Errors Made in the NICU

Other NICU errors that can cause permanent brain damage in a baby include medication errors and problems with tubes, IVs, and central lines in the baby. Feeding tubes are sometimes mistakenly placed in a baby’s lung, which can have disastrous consequences.  IVs and central lines in a baby can also be misplaced or malpositioned. For example, mismanagement of a central line can cause the baby to suffer numerous problems, including stroke, which can cause permanent brain damage and cerebral palsy.  It is negligence when mistakes are made with medication, feeding tubes, IVs, and central lines.


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

If your baby has hypoxic-ischemic encephalopathy (HIE), periventricular leukomalacia (PVL), a seizure disorder, cerebral palsy, or any other lifelong condition, the award-winning attorneys at Reiter & Walsh ABC Law Centers can help. We focus solely on birth injury cases and have been helping children throughout the nation since 1997.

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