pregnant woman develops an infection, it does not mean that the fetus will be
infected, it does not mean that the infant will suffer permanent brain
damage, and it does not excuse negligent obstetric care. Yet in birth trauma
litigation, defense experts often try to link a newborn's cerebral palsy or
other neurologic disabilities to maternal infection during pregnancy.
Defense experts routinely
testify that when a pregnancy is complicated by maternal infection, the
infant's adverse neurological outcome could not have been prevented.
Plaintiffs' lawyers must be prepared to prove either that infection did not
cause the brain injury or that infection would not have caused the injury if
it had been timely diagnosed and properly treated.
To satisfy this burden,
counsel must determine whether
- the clinician failed to
timely diagnose and properly treat the infection,
- the clinician performed
antepartum testing to assess fetal well-being,
- the clinician recognized and
properly managed fetal distress, and/or
- the brain damage could have
been prevented with earlier delivery or proper treatment of the
infection or other conditions that contributed to the infant's adverse
conditions other than infection can lead to brain injury during pregnancy or
at birth. An important question for the lawyer is whether the injury was
caused by asphyxia. Asphyxia is a series of events that begins with hypoxia
(reduced oxygen delivery to the brain despite adequate blood flow), hypoxemia
(a diminished amount of oxygen in the blood), or ischemia (diminished blood
flow to the brain) and culminates with acidosis (blood gas and pH
abnormalities). Physicians often refer to the brain injury that is caused by
asphyxia as a "hypoxic-ischemic brain insult."
In many birth trauma
cases in which the defense claims that infection isto blame for the injuries,
the plaintiff's attorney may prove that the true cause was asphyxia. The
attorney must show that the hypoxic-ischemic brain injury could have been
prevented if the physician had performed fetal testing before labor began
(antepartum testing) or during labor and delivery (intrapartum testing),
detected fetal distress, and performed an earlier delivery.
Types of Infection
pregnant woman develops an infection, the infant's neurological outcome
depends on the type of organism involved, the gestational age of the fetus at
the time of the infection, the route of infection, and the quality of
obstetric and neonatal care. There are two major types and routes of maternal
Generally, maternal viral organisms originate in the mother's blood. They are
transmitted to the fetus via the maternal blood bathing the villi (the tiny,
fingerlike projections of the placenta through which the mother and baby
exchange nutrients, gases, and fetal wastes) in the intervillous space.
Viral infections can
attack a fetus's brain cells and precipitate a metabolic disorder that
inhibits their normal growth and development. Physicians may conduct a series
of tests of the mother during a pregnancy to screen for toxoplasmosis, other
viruses, rubella, cytomegalovirus, and herpes symplex. This is known as TORCH
testing. Also, neuroimaging studies performed after the infant is delivered
may reveal a pattern of congenital brain lesions that is characteristic
Maternal bacterial agents usually ascend through the cervix, penetrate the
placental membranes, and infiltrate the amniotic fluid. This can occur even
when the membranes are intact. These infections may cause changes in the
placenta that interfere with its capacity to deliver oxygen and nutrients to
the fetus and/or to eliminate wastes and carbon dioxide. The fetus also may be
exposed to bacteria during vaginal delivery and develop an infection after
birth, known as sepsis.
The most significant
obstetric complications of an untreated, prolonged bacterial infection in the
mother are premature rupture of the membranes(PROM), chorioamnionitis (CA)
(inflammation of the fetal membranes known as the chorion and the amnion),
preterm labor, prematurity, and neonatal sepsis.
Chorioamnionitis ("CA"). CA is believed to have an indirect effect on brain
development by reducing the normal blood flow and oxygenation of the brain.
This presumably occurs due to inflammation in the placental membranes or in
the umbilical cord, which may also cause abnormal fetal heart rate patterns. Another risk associated with CA is that the
fetus will aspirate amniotic fluid tainted with the bacteria and become
After delivery, a
microscopic examination of the placenta may reveal clusters of inflammatory
cells characteristic of CA or funisitis (inflammation of the umbilical cord,
which can result from a severe ascending bacterial infection). Additionally,
women experiencing PROM tend to have a higher incidence of CA, but it also
can occur in patients with intact membranes.
Defense experts routinely
place too much weight on the role of CA as a cause of permanent brain damage.
Only in rare cases does the condition cause fetal death or permanent brain
injury. Even when CA is accompanied
by funisitis, most infants are normal. This is because most bacteria are of
low virulence and have no harmful effects on the fetus.
is only one of many potential complications that an obstetrician must
properly diagnose and manage to prevent irreversible brain damage or death.
In cases involving maternal infection, lawyers and parents should
- look for clinical evidence
revealing the time when maternal infections should have been suspected
- determine whether timely
treatment was initiated;
- confirm whether antepartum
testing was performed and was properly interpreted;
- look for clinical evidence of
fetal distress or delayed delivery;
- review the placental
pathology report, if available, and determine whether chorioamnionitis
was present in the placenta; and
- evaluate the neuroimaging
studies to ascertain whether they reveal the cause or timing of the
permanent brain injury.
these steps will ensure that all of the relevant medical issues will be
considered and help to overcome the argument that the infant's brain injury
could not have been prevented by timely and proper obstetric care.
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.