Surgical Medical Errors and HIE

Birth Injury & Hypoxic Ischemic Encephalopathy Attorneys Discuss Surgical Medical Errors and HIE

The administration and monitoring of anesthesia in the operating room is a complex and multifaceted skill that requires knowledge and practice. The safety of the patient depends on awareness of and response to potential problems.

Pregnant women require extra care because the unborn baby must be closely monitored. Medical errors can cause the baby to experience a lack of oxygen to her brain (birth asphyxia) and brain bleeds, which can cause the newborn to have hypoxic ischemic encephalopathy (HIE), brain damage, seizures and lifelong conditions such as cerebral palsy and developmental disabilities. In this article, we discuss standards of care that must be followed in the operating room and medical mistakes that commonly occur, with a focus on medical negligence during labor and delivery.


The award-winning birth injury attorneys at ABC Law Centers: Birth Injury Lawyers have helped dozens of children affected by hypoxic ischemic encephalopathy and cerebral palsy. Jesse Reiter, president of ABC Law Centers: Birth Injury Lawyers, 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.

If your child experienced a birth injury and now has hypoxic-ischemic encephalopathy, brain damage, cerebral palsy or any other long-term condition, contact us today at 248-593-5100. Our award-winning hypoxic-ischemic encephalopathy attorneys are available 24/7 to speak with you.

Medical Errors and HIE | Anesthesia and Medical Malpractice

During surgery, surgeons, medical assistants, and at least one anesthesiologist are present.  The anesthesiologist administers medications to the patient and manages the patient’s airway and breathing.  The anesthesiologist also monitors the patient’s hemodynamic (blood and circulatory) status.  Monitoring an anesthetized patient is a continuous process throughout the surgery, from pre-medication to full recovery.  Vital signs and other monitoring parameters should be recorded to the surgical record at least every 5 minutes during the procedure, but patient monitoring is constant.   The anesthesiologist should be aware of subtle changes in parameters and be prepared to address any issues as they arise.

It is important for the anesthesiologist to view and interpret absolute numbers.  However, subtle changes and trends are often an early indicator that the patient is beginning to decompensate.  The anesthesiologist should never wait until the monitoring parameters are in the critical range to act and / or ask for assistance.  Monitoring is intended to provide early warning of adverse changes or trends so that irreversible damage can be prevented.

Standards put forth by the American Society of Anesthesiologists (ASA) require that qualified anesthesia personnel be present at all times during surgery, and that the patient’s oxygenation, ventilation, circulation, and temperature be continuously evaluated.  The reason for this is because when patients are given anesthesia, there is a loss of bodily sensation which may include a loss of consciousness.  As anesthesia / sedation is increased, the patient becomes progressively more sleepy and more able to tolerate painful or uncomfortable procedures, and the end point is a state of unconsciousness known as general anesthesia.  As sedation becomes deeper, the patient gradually loses the ability to breathe normally.  This is usually accompanied by a depression of heart function and blood pressure.  Under these circumstances, the patient undergoing surgery is dependent upon the vigilance and skill of the physicians involved in the surgery.

Medical Errors and HIE | Negligence in the Operating Room

In medical malpractice, the leading anesthesia claim is death, accounting for approximately 26% of claims.  Permanent brain damage represents about 9% of claims, while nerve injury represents 22% of claims, with 23% of these nerve injury claims involve permanent and disabling injuries, including loss of limb function, or paraplegia or quadriplegia.  The 4th most common injury claim is airway injury, accounting for approximately 7% of claims.

Oxygen deprivation of a baby in the womb, called intrauterine hypoxia or birth asphyxia, is the 10th leading cause of neonatal death in the U.S.  When a baby is not properly monitored during labor and delivery, the baby could be suffering from oxygen deprivation with nobody noticing.  This can lead to a permanent brain injury called hypoxic ischemic encephalopathy (HIE).  There are many conditions that can cause a baby to be oxygen deprived during delivery, and these include the side effects anesthesia given to the mother and other maternal conditions, as well as conditions pertaining solely to the baby.

Any injury that happens to the mother during delivery will also likely affect the unborn baby, sometimes in minor ways, and sometimes with severe consequences.  When surgery is performed on a pregnant woman – such as during C-section delivery – the surgeon, anesthesiologist and medical team are caring for two people: the mother and the baby.

Types of Injuries Related to Medical Errors and HIE

  • Airway injuries and respiratory events include difficulty placing the breathing tube, insufficient oxygenation and ventilation, aspiration (inhaling vomit into lungs), airway blockage, and removing the breathing tube before the patient is able to completely breathe on her own.
  • Injuries from medical equipment frequently are caused by catheters (tubes) that go into the heart or other parts of the body.
  • Heart and circulatory events often are due to loss of too much blood (hemorrhaging) and inadequate blood replacement, as well as loss of important electrolytes that significantly impact critical system function, such as those of the heart and brain.
  • Sometimes heart and circulatory events can cause the patient to have a stroke.
  • Injuries with regional block anesthesia include puncture of important areas near the brain and spinal cord as well as cardiac arrest. Regional block is anesthesia that affects only a large part of the body, as opposed to general anesthesia, which causes a loss of consciousness.
  • Medication injuries frequently occur due to an adverse (bad) reaction to the drugs given as well as the patient being given the wrong drug or an incorrect dose.



The anesthesiologist must ensure adequate oxygen level in the inspired gas that the patient is getting from the breathing machine (vent) and in the patient’s blood throughout the surgery.  During administration of general anesthesia using an anesthesia machine, the concentration of oxygen in the patient’s breathing system must be measured by an oxygen analyzer that has an alarm programmed to make noise if the oxygen level gets too low in the breathing system.  With regard to blood oxygenation, a method of assessing oxygenation, such as use of a pulse oximeter (a device placed on the finger or toe that measures the oxygen level in the blood), must be employed.  If a pregnant woman is deprived of oxygen, her baby will also be deprived.


The anesthesiologist must ensure adequate ventilation of the patient during the surgery, and every patient must have the adequacy of ventilation continually evaluated.  This means that the oxygen and carbon dioxide levels in the patient’s blood must be frequently assessed.  While clinical signs such as chest expansion, observation of data on the vent and auscultation (listening with a stethoscope) of breath sounds may be adequate, monitoring of the carbon dioxide content and volume of expired gas is encouraged.  When a breathing tube is inserted , its correct positioning in the trachea must be verified by the physician and by identifying the carbon dioxide level in the expired gas. When ventilation is controlled by a vent, there must be an alarm in place that sounds when there is disconnection of any of the components of the breathing system.

If anything affects the mother’s oxygen or carbon dioxide levels, the baby will also be affected.  For example, if the mother’s carbon dioxide level increases due to poor ventilation, the baby’s will also increase, and this can cause the baby’s blood to be acidic, which is called acidosis or acidemia.  Acidosis is very dangerous for all the cells in a baby’s body, especially brain cells.


The anesthesiologist must ensure the adequacy of the patient’s circulatory function during surgery.  Every patient must have an electrocardiogram (ECG / EKG) which continuously displays during the entire operative period.  Blood pressure and heart rate must be determined and evaluated at least every 5 minutes.  In addition, circulatory function must be continually evaluated by palpation of pulse, auscultation of heart sounds, and some form of peripheral pulse monitoring (e.g., on the finger with a pulse ox).

The mother’s circulatory system is responsible for the baby’s “breathing”; the mother’s blood is what brings oxygen to the baby.  If the mother’s circulation is not functioning properly, the baby can be deprived of oxygen-rich blood, and this can cause HIE and brain damage in the baby.  Factors that can prevent sufficient blood from reaching the baby are high blood pressure (hypertension), low blood pressure (hypotension), and loss of too much blood and hemorrhaging.  Sometimes an abnormal heart rate can affect circulation (heartbeat that is too fast or slow, or the heart rhythm is abnormal).

Body Temperature

In order to maintain appropriate body temperature during surgery, there must be a readily-available means to measure the patient’s temperature.

Recording of Data

An indispensable part of operative care is the anesthesia record.  All anesthesia events must be documented for medical and legal purposes. This record is the only record written during the surgery that provides a detailed account of what took place during the course of operative treatment and management of patients.  It is the means by which patient responses can be analyzed, and it provides the basis for appropriate treatment action. The anesthesia record provides spaces for recording fluid and blood replacement, estimated blood loss, urinary output, body temperature, ECG findings, end tidal PCO2 (for exhaled carbon dioxide level measurement), arterial blood gases (to assess oxygen and carbon dioxide levels in the blood, as well as blood pH (acidity) and electrolyte assessment), and central venous pressure (to assess the amount of blood returning to the heart and the ability of the heart to pump blood to the body).  It is important that a record exist of when the last vital signs were determined. The record is useful in planning subsequent management. While patient care takes precedence over record keeping, physicians must make every effort to keep the anesthesia record as current as possible, and this includes documentation of the baby’s heart tracings and status.  Information recorded on the basis of the anesthesiologist’s memory will be suspect.


  • Continuous ECG. This entails the placement of electrodes that monitor heart rate and rhythm. This may also help the anesthesiologist identify early signs of heart ischemia (lack of blood flow).
  • Continuous pulse oximetry (SpO2). The placement of a pulse oximeter allows for early detection of a decrease in the patient’s blood oxygen level.
  • Blood Pressure Monitoring (NIBP or IBP). There are two methods of measuring the patient’s blood pressure. The first is called non-invasive blood pressure (NIBP) monitoring. This involves placing a blood pressure cuff around the patient’s arm, forearm or leg. A blood pressure machine takes blood pressure readings at regular, preset intervals throughout the surgery. The second method is called invasive blood pressure (IBP) monitoring. This method is reserved for patients with significant heart or lung disease, the critically ill, major surgery such as cardiac or transplant surgery, or when large blood losses are expected. The invasive blood pressure monitoring technique involves placing a special type of plastic catheter (tube / cannula) in the patient’s artery – usually in the wrist or in the groin.
  • Agent concentration measurement. Common anesthesia machines have monitors to measure the percent of inhalational anesthetic agent used (e.g. sevoflurane, isoflurane, desflurane, halothane etc.). The monitors also usually measure nitrous oxide (a weak general anesthesia used with other forms of anesthesia) and oxygen percentages, and they can give MAC level (the concentration of anesthetic vapors in the lungs needed to prevent reaction to surgical stimulus).
  • Low oxygen alarm. Almost all breathing machine circuits have a backup alarm in case the oxygen delivery to the patient becomes compromised. This warns if the oxygen given to the patient drops lower than minimum alarm setting and allows the anesthesiologist to take immediate action. It is imperative that this alarm work and that physicians pay attention to it.
  • Circuit disconnect alarm or low pressure alarm. This indicates failure of the circuit on the breathing machine to give proper pressure during mechanical ventilation.
  • Carbon dioxide measurement (capnography). This measures the amount of carbon dioxide expired by the patient’s lungs and is usually used to allow the anesthesiologist to see more subtle changes in carbon dioxide level; it allows the anesthesiologist to assess the adequacy of ventilation. In addition, there is a carbon dioxide detection device that can be quickly placed on the end of a breathing tube as soon as it is placed to help ensure the tube is in the correct location. This may not work in a cardiac arrest situation.
  • Temperature measurement to discern hypothermia or fever, and to aid early detection of malignant hyperthermia, which is a rare life threatening condition that can be triggered by anesthesia.
  • EEG or other system to verify depth of anesthesia may also be used.  This reduces the likelihood that a patient will be mentally awake, although unable to move because of the paralytic agents. It also reduces the likelihood of a patient receiving significantly more amnesic drugs than actually necessary to do the job.


With the loss of consciousness caused by general anesthesia, there is loss of protective airway reflexes (such as coughing), loss of airway patency, and sometimes loss of a regular breathing pattern due to the effect of anesthesia, opioids, or muscle relaxants. To maintain an open airway and regulate breathing, a breathing tube is inserted in the airway after the patient is unconscious.

Placement of a breathing tube has several risks. There is a risk that the tube may enter the esophagus instead of the trachea (upper airway), in which case the lungs will not be receiving oxygen and will have a difficult time expelling carbon dioxide. When this occurs, the stomach will fill up with air. Esophageal tube placement can easily be remedied if, as soon as the tube is place, the medical team 1.) listens to the lungs to make sure they hear air movement, and 2.) looks at the exhaled carbon dioxide level, which, in normal circumstances, is very different when the tube is in the airway versus in the esophagus. (In a cardiac arrest situation, however, exhaled carbon dioxide level may not be accurate.) The critical factor with esophageal tube placement is to quickly notice it. Once noticed, the tube should be removed, and the patient should be manually ventilated with a mask and resuscitation bag. Once the patient is stable, the physicians can re-attempt tube placement.

Another risk of breathing tube placement is that the patient may vomit and then inhale the vomit (called aspiration) into the lungs. This can be very dangerous as it can cause severe respiratory distress and may even cause cardiac or respiratory arrest (a “code” situation). In addition, inhalation of vomit can lead to long-term lung problems. Aspiration of vomit can be prevented by administration of certain drugs before placing the breathing tube, as well as using extreme skill when placing the tube. Experience and skill in visualizing the upper airway and glottis are crucial. Skill will also help prevent placing the breathing tube too far in the airway (called right mainstem bronchus intubation), which will only ventilate the right lung. This also is extremely dangerous, as it can cause the right lung to become overdistended, and this can lead to a hole or holes in the lungs, as well as lung collapse. In addition, a patient will not be properly oxygenating and ventilating when this occurs, and her oxygen level will drop and her carbon dioxide level will increase.

Other complications that can occur during breathing tube placement are increased heart rate (tachycardia), decreased heart rate (bradycardia), abnormal heart rhythms (dysrhythmias), damage to the upper airway, and lung damage if the volume or pressure of air given to the patient by the breathing machine (vent) is too high.

The anesthesiologist must pay close attention to the breathing tube to make sure it does not become dislodged, either from the patient or from the vent. Ventilator alarms must be properly set so that a malfunction in the vent or dislodgement of the tube will be instantly detected. A patient’s vital signs can also be indicators of vent and breathing tube problems.

Airway and vent management are crucial because during most surgeries, the vent is breathing for the patient. If something goes wrong with the vent or the tube, the patient can become severely oxygen deprived, which can lead to permanent brain damage and respiratory and / or cardiac arrest. If the mother becomes oxygen deprived, so will the unborn baby.

Fetal Monitoring: Avoiding Medical Errors and HIE

When the baby becomes oxygen-deprived, she will become distressed, which is called fetal distress. Fetal distress is usually evident on the fetal heart monitor, as long as the monitor is attached and performing properly. The key is that the medical team must continuously watch the monitor and be skilled in interpretation of the heart tracings. Indeed, when distress is noted on the monitor, it almost always means that the baby is being oxygen deprived and this typically requires an urgent or emergency delivery.

During a C-section operation, the medical team has numerous issues to deal with, such as giving the mother proper anesthesia so she doesn’t experience pain, but also so the right type and amount are used so as not to negatively impact the baby. Many issues often need to be handled at once, such as dealing with really high or really low blood pressure crises (side effects of anesthesia) in the mother. There often are instances in which the anesthesia hasn’t taken effect, but the baby must be delivered as soon as possible. On the one hand, the physicians don’t want the mother to feel the surgical maneuvers of the C-section and they don’t want to do anything that could harm the mother. On the other hand, there is the need to deliver the baby quickly.  In situations such as this, it is critical that there is not interruption of fetal heart rate monitoring. The medical team must be aware at all times of how the baby is doing.

Often, fetal heart monitoring is interrupted during C-section delivery. However, there is no need for this. Continuous, sterile fetal monitoring is very easy to do prior to and throughout C-section delivery. This can be accomplished by using a sterilizable probe with the Doppler monitor. An alternative to a sterilizable probe is placement of a condom or sterile glove over the probe to allow for sterile fetal heart rate monitoring during the C-section. Another method of  monitoring the baby is to leave in the scalp monitor that was being used during labor. The electrode can be left on the baby until the head is delivered.  At delivery, the wire can be cut and pulled out through the vagina.

Continuous monitoring during C-section is often needed and can be critical in certain instances. There should be adequate skilled staff to allow for one person to monitor the baby while other members of the team quickly and skillfully prepare for and implement a prompt C-section delivery.

The key to proper fetal monitoring during a C-section is communication among the team delivering the baby. There must be enough personnel to ensure that time is being watched, the baby is being continuously monitored, lapses in monitoring are minimized or avoided, and all procedures involved during the C-section are performed quickly and skillfully. All members of the team must effectively communicate so that informed decisions are made. This is especially important when there are issues pertaining to the status of the baby versus the mother having proper anesthesia or various treatments that may be necessary for the mother’s health.


Proper monitoring of a mother and baby during surgery is crucial. The anesthesiologist must be aware of all the physiological monitoring data, and must continuously communicate information to the surgeons and other members of the medical team.  Many factors during surgery can cause a patient to decompensate, such as complications from the surgery itself (e.g., severe bleeding), problems from anesthesia (e.g., severe drop in blood pressure or heart rate and rhythm problems, and complications from the breathing tube or vent (tube becomes dislodged or is misplaced, patient is not being properly oxygenated and her oxygen level drops). All of these factors can cause harm to the baby.

There must be enough skilled personnel in the operating room so that if any critical event occurs, it can be quickly and skillfully addressed. Furthermore, the anesthesiologist must closely monitor the patient so that subtle changes are noticed and changes can be made to the patient before a critical event occurs and injures the patient.

Failure to have skilled personnel and proper monitoring devices in place during surgery is negligence. Failure to act quickly and appropriately when a patient’s status changes also constitutes negligence. If this negligence causes injury in the mother or baby, it is medical malpractice.


Due to the complex nature of surgery cases, it is imperative to have skilled and experienced attorneys such as the nationally-recognized attorneys at ABC Law Centers: Birth Injury Lawyers.

Birth injury lawyer Jesse Reiter, president of ABC Law Centers: Birth Injury Lawyers, 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: Birth Injury Lawyers 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: Birth Injury Lawyers 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. 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 unless we win your case. Our firm’s award-winning lawyers are available 24/7 to speak with you.

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In this video, hypoxic ischemic encephalopathy attorneys Jesse Reiter and Rebecca Walsh discuss the causes of and treatments for HIE. Negligence by the medical team is often the cause of HIE and birth asphyxia.

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Helpful resources

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  2. Apfelbaum, Jeffrey L., et al. “An Updated Report by the American Society of Anesthesiologists Task Force on Management of the Difficult Airway’.” Anesthesiology 118.2 (2013): 251-270.
  3. Schmid, Felix, Matthias S. Goepfert, and Daniel A. Reuter. “Patient monitoring alarms in the ICU and in the operating room.” Critical Care 17.2 (2013): 216.
  4. Weaver, Sallie J., et al. “Does teamwork improve performance in the operating room? A multilevel evaluation.” Joint Commission Journal on Quality and Patient Safety 36.3 (2010): 133-142.
  5. Ford, Simon, et al. “At-a-glance monitoring: covert observations of anesthesiologists in the operating room.” Anesthesia & Analgesia 111.3 (2010): 653-658.
  6. Pedersen, Tom, Ann Merete Møller, and Karen Hovhannisyan. “Pulse oximetry for perioperative monitoring.” Cochrane Database Syst Rev 4 (2009).
  7. Nuwer, Marc R., Jaime R. Lopez, and Khaled M. Zamel. Intraoperative neurophysiologic monitoring. Cambridge University Press, 2010.
  8. Veyckemans, F. “What is new regarding anaesthetic monitoring in the operating room?].” Annales françaises d’anesthèsie et de rèanimation. Vol. 31. No. 1. 2012.