Failure to Act: The Role of Medical Malpractice in the Onset of Brain Injury and Cerebral Palsy in Children

Brain injury in newborns can have significant and lasting impacts on a child’s development and quality of life. Injuries to a baby’s brain can occur at various stages: before birth (antenatal), during childbirth (intrapartum), or shortly after delivery (postnatal). Some injuries are caused by inherited genetic defects or mutations or exposure to harmful substances such as certain medicines, alcohol or drugs. And some may be caused by infection. Babies can develop brain injuries caused by lack of oxygen during pregnancy and delivery. Here, we explore the cause of injury, which if not diagnosed and responded to straight away can cause brain injury and lead to Cerebral Palsy (CP). 

Source: U.S. Centers for Disease Control and Prevention 

Babies and Brain Injuries

Injuries to a baby’s brain can occur at various stages: before birth (antenatal), during childbirth (intrapartum), or shortly after delivery (postnatal). Some injuries are caused by inherited genetic defects or mutations or exposure to harmful substances such as certain medicines, alcohol or drugs. And some may be caused by infection. Babies can develop brain injuries caused by lack of oxygen and blood to the brain during pregnancy and delivery. Here, we explore the cause of that injury, which if not diagnosed and treated by the medical team right away can cause brain injury and lead to Cerebral Palsy (CP).

Complications After Childbirth

Monitoring the baby’s heart rate and its response to uterine contractions is critical to assure the health of the baby. Trained health care providers interpret the patterns of the baby’s heart rate for indications of the baby’s health and ability to tolerate labor and should make decisions about whether labor can continue or delivery needs to occur promptly by careful observation of that pattern. 

Here are complications after childbirth that require early diagnosis, intervention, and treatment by medical professionals:

• Neonatal Hypoglycemia: Low blood sugar levels shortly after birth can result in brain injury if not promptly addressed. Hypoglycemia can compromise neuronal metabolism and increase the risk of neurological deficits (Hay et al., 2019).
• Hyperbilirubinemia: Elevated bilirubin levels, if severe, can lead to kernicterus, a form of brain damage caused by jaundice. Rapidly rising levels can damage the basal ganglia and other parts of the brain, resulting in permanent neurological impairment (Tucak et al., 2019).
• Infections: Conditions such as meningitis or sepsis can occur after birth and may lead to brain injury if not treated effectively. These infections can cause inflammation and damage to brain tissue (Davis et al., 2020).

Source: Mayo Clinic

The delivery of babies and treatment after birth involves a team of healthcare practitioners. The primary medical provider is often an obstetrician, a physician specialized in the management of pregnancy, labor, and the postpartum period. Obstetricians typically obtain a degree as a Doctor of Medicine (MD) or Doctor of Osteopathic Medicine (DO), followed by a post graduate training known as a residency in obstetrics and gynecology. Some doctors do additional training by completing a fellowship.

Physicians in training (interns, residents, and fellows) are very involved in the delivery, but they are merely the extension of the attending physician, who is required to supervise all the care provided by the trainees. There are also specialized obstetricians that care for “high risk” pregnancies, called Maternal Fetal Medicine (MFM), and they are specialists who treat “high risk” pregnancies.  Pregnancy is called high risk based on various factors such as age, prior medical conditions and lifestyle choices, where the mother or baby might be more likely than usual to develop health problems before, during or after delivery. When these factors exist, the patients may or should be referred to MFM specialists.

Additionally, labor and delivery nurses, who are registered nurses (RNs) with specialized training in obstetrics, monitor the labor process, assist with delivery, and support families during this critical time (National Council of State Boards of Nursing, 2020). Their combined expertise underscores the collaborative nature of childbirth care. Focus of the care should be on the safety and wellbeing of both mothers and newborns.

Finally, some parents choose to involve a certified nurse-midwives (CNMs) in childbirth. These practitioners hold a master’s degree in nursing and have completed specialized training in midwifery, which focuses on prenatal, labor, and postpartum care (American College of Nurse-Midwives, 2021). CNMs provide a holistic approach to childbirth, often focusing on natural birth methods and individualized care while collaborating with obstetricians for high-risk situations.

Duty of Care (Professional Responsibility) of the Medical Team:

Fetal distress refers to abnormal changes in a fetus’s heart rate and other vital signs during labor that may indicate compromised oxygen supply or other forms of distress. If not promptly addressed, this distress can lead to conditions such as hypoxic-ischemic encephalopathy (HIE). 

Obstetricians and midwives share the critical responsibility of ensuring the health and safety of both mothers and newborns, and their duty of care is vital in preventing incidents of HIE. 

• Duty of Care During Delivery: During labor and delivery it is the medical team’s responsibility to monitor the health of the mother and fetus. This includes observing the fetal heart rate patterns to identify any signs of distress, assessing maternal health, performing a delivery timely, being prepared to intervene should complications arise, and not to cause trauma by significant force or improper technique. Early intervention (such as surgical delivery by a C-section) during this phase is crucial to preventing long-term consequences such as HIE.
  
• Duty of Care After Delivery: After childbirth, the medical team is still responsible for monitoring the health of both the mother and the newborn. This includes identifying any signs of respiratory distress, complications of preeclampsia, or other postpartum issues that could affect maternal and infant health.  

Source: Cleveland Clinic 

Medical Malpractice

Look out for the following substandard care by the medical team: 

• Failure to Monitor Fetal Heart Rate: Inadequate monitoring of fetal heart rate or failure to act on abnormal patterns can lead to undetected fetal distress. If the team is not aware of the distress, it cannot initiate timely interventions, when necessary, which can result in compromised oxygenation and brain injury.
• Delays in Response: If healthcare practitioners delay responding to signs of maternal or fetal complications (e.g., high blood pressure, abnormal fetal motion, or signs of abnormal labor progression), this lapse can exacerbate risks of oxygen deprivation and injury.
• Inadequate Prenatal Care: Failure by the medical team to refer to MFM physicians and other specialists, or inadequately screen for risk factors during prenatal visits may prevent timely identification of high-risk pregnancies. Without appropriate risk management strategies in place, the likelihood of complications during labor may increase.
• Poor Communication: Ineffective communication among the healthcare team members during delivery can lead to misunderstandings and delayed interventions. Ensuring that all providers are aware of the mother’s and fetus’s conditions is essential for coordinated care and required.

The Role of Fetal Heart Monitoring (FHM) to Prevent Brain Injury and Cerebral Palsy

Fetal heart monitoring can be performed through two principal methods: external continuous electronic fetal monitoring (EFM) and intermittent auscultation. Sometimes if the transponders are not stable on the mother’s abdomen and conditions permit, a small clip can be placed in the baby’s scalp to continuously monitor the heart rate and pattern. Continuous EFM records the heart rate, heart rate variability and patterns and can be used to detect fetal distress or hypoxia. Universally used in the United States and around the world, EFM in conjunction with other signs and symptoms such as fetal movement, and the progress of labor provide the health care team with critical information about the baby’s well-being and whether decisions need to be made regarding delivery to avoid injury and, possibly, adverse neurologic outcomes.

Does the Medical Team Have a Duty to Recognize and Respond to Prolonged Labor?

Typically, labor lasts (on average) 12 to 24 hours for a first birth and 8 to 10 hours for subsequent births. Prolonged labor is defined as the duration of labor exceeding the normal timeframe—typically 25 hours or more for a woman that has never given birth and over 20 hours or more  for a woman that has given birth. Here we explore the implications of prolonged labor, particularly its increased risks for brain injury and cerebral palsy (CP) in infants, as well as the duty of care that medical practitioners to prevent such occurrences.

Understanding Prolonged Labor

Labor is typically classified into three stages: the first stage (cervical dilation), the second stage (delivery of the baby), and the third stage (delivery of the placenta). Prolonged labor specifically refers to an extended first or second stage due to various factors, including maternal exhaustion, ineffective uterine contractions, fetal positions, and maternal health complications.

Factors contributing to prolonged labor may include:

• Ineffective contractions: Inadequate frequency and strength of contractions can hinder the progression of labor.
• Fetal malpresentation: Situations where the fetus is not positioned optimally for birth can prolong labor.
• Maternal factors: Issues such as pelvic abnormalities, obesity, or certain medical conditions can impede labor.

Duty of Care for Medical Practitioners

Given the potential risks associated with prolonged labor, medical practitioners bear a significant duty of care to monitor, assess, and intervene when necessary to ensure optimal outcomes for both mothers and infants. This includes:

• Assessment and Monitoring: Continuous monitoring of maternal and fetal conditions during labor is essential. Practitioners must regularly assess the effectiveness of contractions, fetal heart rate patterns, and maternal vital signs to identify signs of distress or potential complications early. 
• Timely Interventions: If labor is identified as prolonged, practitioners should consider interventions such as administering medications to enhance uterine contractions (e.g., oxytocin) or recommending assisted delivery techniques when appropriate.
• Clear Communication: Effective communication with the laboring mother regarding the progress of labor, any arising concerns, and potential interventions is vital. Ensuring the patient is informed can facilitate more collaborative decision-making and reduce anxiety.
• Preparedness for Emergencies: Healthcare teams must be prepared to manage complications arising from prolonged labor, including having procedures and practices in place for emergency cesarean sections if fetal distress is identified or if labor progresses without sufficient progress.

The Duty of the Medical Team to Address Complications After Delivery: Prevention of Brain Injury and Cerebral Palsy

The responsibility of the medical team extends beyond the delivery. After the birth of the child new members join the medical team, including pediatricians and neonatologists who care for the baby as well. 

What Are Some Symptoms of Cerebral Palsy?

According to the Eunice Kennedy Shriver National Institute of Child Health and Human Development, many children are not diagnosed until age 2 or later, although they may exhibit early signs of cerebral palsy in the first few months of life, including:

• Developmental delays (rolling, sitting, crawling, and walking)
• Abnormal muscle tone (stiff or floppy) and posture (favoring one side of the body when moving, crawling, and reaching)

Older children with cerebral palsy may exhibit any of the following symptoms, depending on whether their condition is mild, moderate, or severe: 

• Developmental disabilities (physical and intellectual)
• Seizures
• Significant muscle problems in all four limbs
• Difficulties with vision, speech, and hearing
• Intellectual/learning disabilities
• Behavioral disorders
• Abnormal sensation and perception
• Issues with fine motor skills, such as grasping and manipulating items with their hands 

Sources: CDC and Eunice Kennedy Shriver National Institute of Child Health and Human Development

There are several CP categorizations that are based on the type of movement disturbance present:

• Spastic Cerebral Palsy: This is the most common type. Individuals with spastic CP experience stiff muscles that lead to jerky or repetitive movements. There are different forms based on the body parts affected.
  
• Spastic Hemiplegia: This type affects one side of the body, including the arm, hand, and sometimes the leg. Children with this form may experience delays in speech but typically have no intellectual disability. 
• Spastic Diplegia: This form primarily involves muscle stiffness in the legs, with less impact on the arms and face. Typically, there is no intellectual or language disability.
• Spastic Quadriplegia: This is the most severe form of CP, characterized by significant stiffness in the arms and legs and a weak or floppy neck. Individuals with spastic quadriplegia typically cannot walk and may have difficulties with speech. This form can also be associated with moderate to severe intellectual and developmental disabilities.
• Dyskinetic Cerebral Palsy: This type is marked by slow, uncontrollable, jerky movements of the hands, feet, arms, or legs. The facial muscles and tongue may be overactive, leading to drooling or unusual facial expressions. Individuals often have difficulty sitting straight or walking, but they usually do not have intellectual disabilities.
• Ataxic Cerebral Palsy: This form affects balance and depth perception, resulting in unsteady walking and challenges with quick or precise movements, such as writing, buttoning a shirt, or reaching for an object. 

Sources: “About Cerebral Palsy,” CDC, last accessed September 20, 2024; “What are the early signs of cerebral palsy?” Eunice Kennedy Shriver National Institute of Child Health and Human Development, last accessed September 20, 2024, 

For more information, helpful resources, and support organizations, view our Video Library, 50 State Guide, financial resources, and contact the following organizations:

• National Dissemination Center for Children with Disabilities
• U.S. Centers for Disease Control and Prevention | National Center on Birth Defects and Developmental Disabilities

If My Child is Diagnosed with Cerebral Palsy, What Can We Expect in Terms of Diagnosis and Treatment?

While there is no cure for cerebral palsy, each case is different, and there is no set standard for the type of care your child will need going forward. It depends completely on the severity of their symptoms, which may change over time, but early medical intervention can improve their outcome.

According to the CDC, the estimated lifetime costs in 2003 dollars totaled $51.2 billion for persons born in 2000 with intellectual disabilities, $11.5 billion for persons with cerebral palsy, $2.1 billion for persons with hearing loss, and $2.5 billion for persons with vision impairment. That totals $78.8 billion in 2003 dollars. $78.8 billion in 2003 is equivalent in purchasing power to about $134.7 billion in 2014 (not accounting for the increased inflations in medical care.) 

The costs for individual families are variable depending upon many factors, but the financial cost at a minimum can be in the millions.