PROVING CEREBRAL PALSY WAS CAUSED BY NEGLIGENCE
Proving that a baby’s cerebral palsy was caused by negligence or that the cerebral palsy would have been prevented if doctors or nurses had acted appropriately is one of the most difficult burdens in the personal injury law practice. There must be evidence of a sentinel event during labor, and there must be a constellation of evidence that the baby suffered a neonatal encephalopathy.
A task force of The American College of Obstetricians and Gynecologists and the American Academy of Pediatrics collaborated to develop the “Neonatal Encephalopathy and Cerebral Palsy – Defining the Pathogenisis and Pathophysiology” book, also known as the “Green Book.” Gary Hankins, M.D. was the chair of the task force. I submit that the Green Book was created to make to defend negligent labor nurses and hospitals in cases where it is claimed that negligence of labor nurse caused a baby to develop cerebral palsy and to make it more difficult for victims to be successful in pursing these cases.
The Green Book claims that essential criteria must be established in order to prove that an event occurring during the labor and delivery process caused cerebral palsy. The so called essential criteria are (1) metabolic acidosis with pH less than 7 and a base deficit of 12 or more; (2) early onset of severe or moderate neonatal encephalopathy; (3) cerebral palsy of the spastic quadriplegic or dyskinetic type; and (4) Exclusion of other etiologies. The Green Book says that all four criteria must be established, and that if the cord blood pH is greater than 7, that the criteria is not met. However, Gary Hankins, M.D. has testified in depositions that all four essential criteria do not have to be met. The hospital lawyers in these cases point to the Green Book as though it is the Ten Commandments. Hospital lawyers have no problem getting experts to side with the Green Book and come to the defense of the hospital. However, the Green Book is at odds with a vast array of medical literature and textbooks, particularly Neurology of the Newborn by Joseph Volpe, M.D.
For a case to be successful, meaning recovery of significant money damages for a baby who developed cerebral palsy due to negligence, the claimant’s attorney will be faced with debunking the Green Book. In a successful case, the claimant will have to prove that a sentinel hypoxic event occurred immediately before or during labor, that there was a sudden and sustained fetal bradycardia of absence of fetal heart rate variability, that the baby’s Apgar scores were 0 to 3 beyond 5 minutes, that there was an onset of multisystem involvement within 72 hours of birth, and that early imaging of the baby’s brain shows evidence of acute nonfocal cerebral abnormality. The real burden is proving the sentinel event caused the cerebral palsy if one of the so called essential criteria is not established.
The types of sentinel events include (1) umbilical cord compression (nucal cord); (2) placenta abruptia; (3) rupture of the uterus; (4) placental insufficiency; (5) tachysytole; and (6) changes from normal healthy fetal heart rate pattern to a non-reassuring fetal heart rate pattern. All of these events can suddenly cause a healthy well oxygenated baby to become oxygen starved, and cause brain damage if not timely diagnosed and the baby emergently delivered.
During labor there are supposed to be well trained and vigilant nurses who are monitoring the fetal heart rate patterns and the mother to timely recognize and respond to any of those sentinel events. All of those sentinel events are obstetrical emergencies. The labor nurse has to respond to those events by notifying the obstetrician, the nursery, the pediatrician, the anesthesiologist, and taking measures to get the baby emergently delivered by Cesarean section. Once there is evidence that one of those emergencies is occurring, time is of the essence to get the baby delivered as soon as possible and resuscitated. The gravity of the situation demands that the baby be delivered within 10 to 15 minutes. The failure to do that allows the emergency to deprive the baby of oxygen, which damages the brain, which causes the cerebral palsy.