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  • Writer's pictureNicole Linko


Babies can and do develop cerebral palsy due to lack of oxygen during the birthing process. Cerebral palsy can develop as a result of many insults other than a lack of oxygen during the birthing process. However, a lack of oxygen during the birthing process is a real cause of a significant number of cases of cerebral palsy. Doctors and nurses are highly trained, and have many tools, to detect inadequate oxygen before it damages the unborn baby’s brain, and to deliver the baby emergently when it is evident that the baby is suffering from inadequate oxygen, in order to protect the baby’s brain from being damaged. Many things can happen during labor to cause severe oxygen deprivation to the unborn baby. A few of them are umbilical cord around the neck, placental insufficiency, uterine hyperstimulation, placenta abruption, uterine rupture, and baby just cannot tolerate the stress of the uterine contractions for the full course of labor. The fetal heart monitor is the primary tool used to detect such lack of oxygen.

I have had success in quite a few cases proving that doctors or nurses negligently failed to timely respond to clear signs of fetal distress, that if those doctors or nurses had timely responded by emergently delivering the baby by Cesarean-section, the baby would not have sustained the permanent brain damage and cerebral palsy. In order to be successful in such cases, the facts must fit a well-defined evidentiary matrix.

I get contacted by parents whose baby has cerebral palsy, who believe the cerebral palsy should have been prevented by the doctors or nurses. We begin by obtaining and analyzing the prenatal records, the labor and delivery records, the fetal heart monitor strip, the newborn records, records from the pediatrician and pediatric neurologist, and all diagnostic imaging film of the baby’s brain. We first look for any evidence in those records that would instantly preclude us from proving a case, such as a cause of the cerebral palsy other than oxygen deprivation during labor. Next, we look at the fetal heart monitor strips to see if there were signs of fetal distress that would warrant intervention. We want to see a fetal heart monitor strip that depicts a healthy baby at the beginning of labor. If the fetal heart monitor strip reflects that the baby’s brain was most likely already damaged at the beginning of labor, that fact may stop our inquiry and preclude success. Next, we look at the baby’s physiological state at birth to see if the baby was suffering from severe metabolic acidosis. Next, we look to see if the baby was suffering from seizures and multi-organ damage during the first 12 to 72 hours of life. Next, we look at the MRI of the baby’s brain to see if the timing of the injury coincides with the time of the labor and birth, or whether the baby’s brain injury predated the labor and delivery. There are situations where the MRI will be outcome determinative because it establishes that the insult that damaged the brain occurred well before the onset of labor.

To be successful, we need to prove (1) the baby’s brain was not already damaged before the onset of labor, (2) the long list of causal reasons for cerebral palsy, other than perinatal asphyxia do not exist, (3) clear evidence of fetal distress during labor that should have prompted an emergency Cesarean-section, and that such emergency Cesarean-section was not performed, (4) the baby was suffering from severe metabolic acidosis at birth, (5) baby was evidencing signs of brain injury and multi-organ damage during the first 12 to 72 hours of age, and (6) the MRI studies are consistent with the timing of the injury during the labor and delivery.

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