Dov Apfel.

Birth Injury Information
Dov Apfel.
Parents Right to Informed Consent!
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 malpractice claims.

The Mechanism of Hypoxic or Ischemic Brain Injury

The 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

Clinicians 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 distress.
  • 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

Abnormal 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 whether:

  • 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 operative delivery,
  • 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 deliveries, and
  • 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.


The 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 by clinicians.

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.

Please Note:
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.
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