One of the most controversial areas of medical malpractice litigation is “birth injury” litigation. The most common of these are brought by the parents of children with cerebral palsy (CP), who claim that the CP was caused (at least in part) by the negligence of the defendant physicians or nurses before, during, or shortly after labor and delivery. ”Birth injury” is a misnomer because these types of injuries can occur prenatally from conception until birth, and can indeed occur after birth. The cases are usually filed against an obstetrician, but can also include pediatricians, nurses, hospitals and others. These cases are controversial because they involve large sums of money, and the cause of CP in many cases is not known. Large settlements and jury verdicts result in higher insurance premiums for the affected doctors, a cost that then is passed on to consumers of health care (in the form of health insurance), and the public at large (in the form of health care that is paid for under Medicaid, Medicare, and other government programs).
Definition of Cerebral Palsy. “Cerebral palsy” is a general term that describes a group of disorders that appear during the first few years of life and affect a child’s ability to coordinate body movements. These disorders are caused by damage to a child’s brain early in the course of development. The damage can occur during fetal development, during the birth process, or during the first few months after birth.
Cerebral palsy ranges from mild to severe. Physical signs of cerebral palsy include weakness and floppiness of muscles, or spasticity and rigidity. In some cases, neurological disorders such as mental retardation or seizures also occur in children with cerebral palsy.
Cerebral palsy is not curable. However, getting the right therapy for your child can make a big difference. Today, children with cerebral palsy benefit from a wide range of treatment options and innovations.
Incidence. About 1-2 babies/1000 born at or near term (> 34 weeks) develop cerebral palsy. It is estimated that 15-20% of cases of CP are caused during labor and delivery.
Causes. The cause of CP in many cases is not known. We know that CP results from an abnormality in or injury to the cerebrum (the largest area of the brain), which controls sensation and voluntary motor function. But we do not always know how or when the abnormality/injury occurs. Although cerebral palsy affects movement, the underlying problem originates in the brain, not in the muscles themselves.
Doctors and researchers don’t completely understand the cause of all cases of cerebral palsy, which are usually present at birth (congenital). For many years, doctors and researchers believed that cerebral palsy was caused by a lack of oxygen during birth. Now they believe that only a small number of cases are caused by problems during labor and delivery.
The causes of Cerebral Palsy include maternal infection during pregnancy, incompatibilities between the blood of the mother and her fetus, genetic or metabolic disorders causing abnormal brain development before birth, and disturbances to brain circulation before birth, caused by an artery spasm or blood clot, similar to a stroke in adults.
Comments. Birth injury litigation has caused a great deal of controversy over the last 20 or so years. Life care plans for individuals with CP usually run in the millions of dollars, depending on the severity of the disability. Consequently, these cases involve large sums of money, and both sides (plaintiffs and defendants) have substantial financial risk in going to trial.
It is almost universally agreed that perinatal asphyxia can cause CP, but so can many other things. The difficulty lies in proving the cause in any given case. Not only must we prove what caused the CP, we also must prove when the injury occurred, and that the injury could have been avoided.
If you suspect that your child has sustained a birth injury due to the negligence of a healthcare provider, please feel free to contact us to discuss your case.
