In the ideal world, a doctor or lawyer could respond to a parent's questions
about the timing or cause of a child's cerebral palsy by simply pointing to a
specific test result or clinical finding in the medical chart which
identifies the precise timing of the insult and the condition that caused the
brain injury. Unfortunately, in most cases, this is not possible. As one
reads the literature published within each subspecialty -- that is,
obstetrics, pediatrics, neonatology, placental pathology, pediatric neurology,
and pediatric neuroradiology -- it becomes evident that there is a lack of
consensus about the selection of clinical markers that have relevance in
establishing the event which caused a brain injury.
What makes the task even more difficult is that new concepts, studies and theories, purporting to clarify, expand and refine the list of clinical markers, find their way into the literature on a regular basis. Sadly, some of this literature is
specifically designed to help physicians and hospitals defend medical
The Mechanism of Hypoxic or Ischemic
placenta is responsible for transferring oxygen and nutrients from the
maternal blood to the fetus. At the same time, carbon dioxide and other waste
passes across the placenta from the fetus to the mother. Placental oxygen
transfer is dependent upon adequate maternal blood flow and sufficient oxygen
concentration in the blood in fetal circulation. Several conditions can
reduce the oxygen supply to the fetus, including the reduction or cessation
of maternal blood supply to the placenta, the reduction of placental surface
area available for oxygen transfer, and cord compression.
A major factor
influencing the outcome during an episode of hypoxia or ischemia is the
amount of reserves available to the fetus to compensate for the declining
oxygen supply. Many physicians believe that, after the onset of hypoxia, the
fetus responds to reduced oxygen delivery by redistributing blood flow to
vital organs, (such as the heart, brain, and adrenal glands), and by
decreasing blood flow to other organs (such as the lungs, kidneys, and
liver). The capacity of the fetal reserves to compensate for hypoxic-ischemic
episodes is affected by the duration of the episodes and their severity. If cardiac
function and redistribution of blood flow to vital organs is maintained at
moderate levels of hypoxia, a fetus with adequate reserves is less vulnerable
to irreversible brain damage.
Thus, even if the amount
of oxygen delivered to the fetus is reduced, asphyxia may not result if the
fetus' reserves are adequate. However, as hypoxia becomes more severe or
prolonged, the oxygen needs of the fetus will eventually exceed the oxygen
reserve of the fetus. The compensatory responses will fail, cardiac output
and blood pressure will decrease, blood flow to the brain and heart will be
diminished, acidosis and asphyxia may develop, and irreversible brain damage
or fetal death may follow.
Clinical Signs that Should not be
Overlooked during Pregnancy
must be on the lookout for maternal or fetal complications capable of
initiating a series of events that can interfere with normal blood flow to,
and oxygenation of, the fetal brain. These complications, and the sequence of
events that follow their onset, can produce changes in the fetal heart rate
patterns typically seen with electronic fetal monioring. Some examples of
maternal and fetal complications that can compromise the fetus and lead to an
unfavorable pregnancy outcome include: (1) decreased fetal movement, (2)
hypertension and preeclampsia, (3) diabetes, (4) oligohydramnios, (5)
intrauterine growth retardation, (6) post-dated pregnancy, or (7)
uteroplacental insufficiency. If the complication cannot be eliminated or
managed, pregnancy outcome may depend upon the timely delivery of the baby.
Some questions that
parents should consider include:
Whether proper and timely
medical evaluations were ordered during the antepartum period and during
labor to assess fetal well-being and to identify high-risk factors.
Whether the FHR patterns
suggest fetal distress.
Whether the FHR pattern
represent an obstetric emergency.
The cause of the fetal
How the fetus was tolerating
the stress revealed by the EFM strips.
Whether the physician should
have anticipated the asphyxial brain damage that occurred, given the
abnormal patterns shown by the EFM testing.
Whether there was clinical
evidence, in addition to the results of the EFM testing, that the
intrauterine environment was hostile and that death or permanent
neurological damage could result, if the obstetrician failed to promptly
deliver the baby.
The Parents' Right to be Informed in The
Options Available in the High Risk Situation
or nonreassuring tests require appropriate clinical responses, which may
range from ongoing observation to immediate delivery.
An inquiry into the
circumstances surrounding the injury of the fetus, should be addressed
The responsible physician
took the time to speak to the parents about the risks of fetal brain
damage if the pregnancy was prolonged, versus the maternal risks of
The obstetrician was
reluctant to recommend a cesarean section, because he or she is one of
many physicians who are being pressured by health insurers and hospitals
to reduce his or her cesarean delivery rates and to perform more vaginal
Whether the parents were
advised, before delivery, that asphyxial brain damage can be an ongoing
process that gives rise to various outcomes, (ranging from focal damage
to diffuse global brain injury) and that, the sooner the asphyxial
episode is terminated, and adequate blood flow to, and oxygenation of,
the fetal brain is restored, the better the prognosis.
potential for more severe and diffuse brain injury increases with the
severity and duration of the hypoxic-ischemic insult. Thus, early diagnosis
of fetal distress and timely intervention to manage the maternal or fetal
conditions that can lead to asphyxia are vital components of obstetrical
care. Electronic Fetal Monitoring is not a panacea for malformed or
genetically damaged brains, nor will it always prevent damage when
catastrophic events occur without warning, leaving inadequate time to deliver
the fetus before the onset of irreversible brain damage. However, EFM does
reveal abnormal fetal heart rate patterns and nonreassuring signs that pose a
serious threat of irreversible neurologic injury and that should not be ignored
It is reasonable to assume that prenatal or antepartum risk factors can exhaust fetal reserves and make the fetus more vulnerable to intrapartum hypoxic or ischemic damage under conditions which a normal fetus could withstand. Thus, EFM is a valuable tool in the hands of a skilled clinician, and it can help to identify fetuses that are not capable of handling the stress of labor.
This web site is not intended as legal advice on cerebral palsy, and is not a substitute for obtaining guidance from your own legal counsel about cerebral palsy litigation. It provides general educational information about the standards of care and causation issues that can arise in obstetrical malpractice and cerebral palsy litigation. Readers of the articles contained within this web site should not act upon the cerebral palsy information without first consulting with a lawyer who is experienced in evaluating and litigating cerebral palsy and obstetrical malpractice cases. Mr. Apfel is admitted to practice law in Maryland and the District of Columbia. When Mr. Apfel is asked to participate in cerebral palsy
litigation filed in other states, he will associate with, and act as co-counsel with, an attorney licensed in that state who is familiar with the local laws and procedures.