Dov Apfel.

Birth Injury Information
Dov Apfel.
Medical Malpractice Educational Guide
This educational guide briefly explains the legal and medical questions that are generally considered by an attorney who is approached by the family of an infant with cerebral palsy or other neurological or intellectual disabilities to determine if they have a medical malpractice claim against a physician, nurse, or hospital for the infant's bad outcome.

This Guide is not intended as legal advice. Readers of this guide should not act upon the information contained here without first consulting with a lawyer who is experienced in evaluating and handling brain damaged baby claims.


The normal development of the fetal brain during pregnancy is dependent on adequate blood flow to the brain. At the same time, it is critical that the blood perfusing the brain tissue have adequate concentrations of oxygen. When blood flow to the brain is disrupted, or the oxygen content of the blood is reduced, the fetus is at risk for sustaining permanent brain damage.

Pregnancy outcome may depend on the timely diagnosis and management of maternal and fetal complications that may place the fetus at risk for neurological injury or death. Some high risk pregnancies can be identified based upon the patient's history, while other complications can be discovered through laboratory testing, physical examinations, antepartum tests of fetal well-being, and fetal monitoring during labor.

When blood flow to the brain is disrupted, or the oxygen content of the blood is reduced, the fetus is at risk for sustaining permanent brain damage.

When the parents of a child are informed that their son or daughter has a permanent neurologic or intellectual disability, it is reasonable for the parents to ask about the cause of the disability and to search for explanations as to why their child was damaged. Lawyers perform a vital service when, with the help of qualified experts, they evaluate the quality of the medical care rendered by the physicians and nurses during the pregnancy, during labor and delivery, and during the immediate newborn period.

Sometimes, the evaluation will reveal that the outcome could not have been prevented. Unfortunately, there are circumstances where the evaluation reveals that the failure to diagnose or to properly manage pregnancy complications, or to respond to fetal distress, or to expedite the delivery of the fetus resulted in irreversible brain damage.


When a lawyer is approached to determine if medical negligence occurred during the pregnancy, during labor and delivery, or during the immediate newborn period, the lawyer must determine whether the prospective plaintiff can prove that:
  • during the pregnancy or the immediate newborn period, the treating physicians or the nurses at the hospital, by their acts or omissions, failed to follow the accepted medical standards of care, and
  • the child developed cerebral palsy or suffered some other neurologic or intellectual disability, because the physicians and/or the nurses failed to follow the applicable medical standards of care.
In other words, the question is whether the infant's injury could have been prevented if the physicians or nurses had complied with the standard of care. In each case, the medical experts evaluating a claim of medical negligence will try to determine whether the responsible physician or hospital:
  • ordered necessary laboratory or diagnostic tests,
  • properly evaluated all available data,
  • conducted a proper clinical examination,
  • took a complete medical history,
  • recognized and properly managed fetal distress,
  • performed a timely delivery, and
  • utilized a differential diagnosis, which requires the physician to consider and rule out the worst case scenario.


The most common statement found in court decisions throughout the United States is that a physician has a duty to exercise the same skill and diligence ordinarily used by other members of the profession under the same or similar circumstances. However, all courts do not agree about the standard by which physicians should be judged. A majority of states follow a national standard of care. Some states apply a locality rule, requiring obstetricians to perform according to the standard followed locally in the physician's community, while others apply a statewide standard of care.

With the advent of board-certification, more courts began to apply national standards of care. Obstetricians, as well as other specialists, are required to possess the same degree of skill and knowledge possessed by other board-certified specialists practicing in that field. By recognizing national standards of care, courts made it possible for patients to use physicians practicing in any state as expert witnesses, as long as they are familiar with the national standards of care.

Thus, the critical question in every case is whether the specific acts or omissions of the physician failed to conform to the accepted standards of care. Was the failure to diagnose a maternal or fetal complication, order certain tests, or to expedite delivery reasonable, given the physician's training, experience and knowledge? Sometimes lawyers, as well as physicians, have difficulty determining precisely what is "standard" or "acceptable" medical practice. Some of the resources that are used to define the standard of care include:

  • the standard textbooks of medicine,
  • articles written by respected physicians affiliated with hospitals and medical schools,
  • practices or standards incorporated into hospitals' written rules or protocols,
  • practices followed by the general medical community under the same or similar circumstances, and
  • practices or standards recommended by national associations or organizations.
Similarly, courts apply national standards of care to hospitals that are accredited under the standards promulgated by the Joint Commission on the Accreditation of Hospitals. Thus, hospitals are required to be aware of advances in the profession, the availability of special equipment, and the existence of specialists. The degree of care required of a hospital is sometimes defined in terms of that degree of care and skill that would be used by other hospitals under the same or similar circumstances.


A. The Failure To Diagnose.

A physician is required to conduct a proper examination and to exercise reasonable care and skill in diagnosing any maternal or fetal complications that develop during the pregnancy. The physician must evaluate all clinical data and perform a differential diagnosis, based on all of the facts known to the physician. However, the failure to diagnose also must be the proximate cause of the injury. Thus, if timely diagnosis would have made no difference in the outcome, the failure to diagnose fetal distress and to expedite delivery may not be actionable, even though the delay resulted from the failure to comply with the standard of care.

B. The Failure To Order/Interpret Tests.

A physician may be liable for injuries caused by the failure to order appropriate antepartum or intrapartum tests, or by his failure to properly interpret the results of the test. An obstetrician must examine the patient at appropriate intervals, identify high risk conditions, confirm the presentation and the stage of labor, and evaluate all clinical and laboratory findings in making a diagnosis and recommending treatment. A frequent issue is whether the nurses and/or physicians properly interpreted the electronic fetal heart rate strips during labor and delivery. Similarly, a critical question in many cases is whether the obstetrician failed to recognize the signs of fetal distress and to expedite delivery.

C. The Failure To Consult Or Refer.

A physician cannot undertake the treatment of conditions that are beyond his/her training and skill. It is axiomatic that a physician has a duty to refer the patient to a specialist, particularly when the patient is in need of treatment beyond that which the physician can offer. With the increasing number of obstetricians who are board certified in maternal/fetal medicine, obstetricians may be liable for failing to refer a patient experiencing certain complications to a perinatologist.

D. Informed Consent.

Physicians must disclose all material information concerning a patient's condition or treatment to the patient. Much litigation has evolved as a result of claims by patients that they relied on incorrect or inadequate information in consenting to or declining a particular treatment or course of action. Obstetricians frequently argue that performing a cesarean section carries greater risk to the mother and increases the cost of medical care. An interesting question may be whether the pregnant mother was given the choice of selecting a cesarean section, when the physician was unable to confirm fetal well-being and there was a risk of injury to the fetus if the pregnancy was prolonged. Another potential claim arises when a physician fails to inform the patient about the risks and complications of a vaginal delivery after a prior cesarean section.


A. The Standard Of Care was Followed.

The most frequent defense raised by the physician is that he/she made an honest mistake in judgment. This defense is predicated on the assumption that the physician had a choice between two or more recognized and approved methods of treatment, or that the injury was unforeseeable and not a result of the physician's lack of knowledge or the failure to exercise reasonable skill and care. Of course, the obstetrician cannot avoid liability in such a situation, unless it is established that a proper medical history was taken, proper examinations were performed, appropriate tests were ordered and interpreted, and all clinical and laboratory data was considered.

An obstetrician can try to justify his or her actions by proving that he or she followed the standard of care required of obstetricians acting under the same or similar circumstances. For example, a physician who allows a woman to proceed with labor even though the fetal monitor strips have abnormal patterns and suggest signs of hypoxia may claim that the fetal heart rate patterns are open to interpretation. The defense will be that the physician had two reasonable choices: (1) to allow labor to progress and to continue to monitor the baby, or (2) to proceed with delivery.

B. Absence of Proximate Cause.

Once it is shown that the physician did not follow the standard of care, the focus of the litigation will shift to whether the obstetrician's act or omission caused injury to the mother and/or the child. For example, a physician's alleged negligence in failing to perform a timely cesarean section due to fetal distress may not be the cause of the child's brain damage. The physician may claim that there is evidence that the brain damage was caused by infection, by a congenital or genetic condition, or by some other complication over which he/she had no control.

In many states the patient must prove that the damage or injury suffered by the child was proximately caused by the physician's negligence. In other words, the evidence must show that it is more probable than not that the physician's action or omission caused the brain injury suffered by the child or caused the death of the child. Proving proximate cause depends on the patient's ability to introduce evidence that there was a better than 50 percent chance that the baby would have been born normal or would have survived if the physician had complied with prevailing standards of care. Anything less than proving a better than 50 percent chance results in a decision for the physician.

C. Contributory Negligence.

A physician may escape liability if there is evidence that the patient's failure to exercise ordinary care for her own protection contributed to her injury. A patient's negligence is not treated the same in every state. In Maryland, a patient's contributory negligence is an absolute bar to the patient's recovery. In other states, the patient's negligence is compared to the negligence of the physician, and the patient's recovery may be reduced by a certain percentage attributable to the patient. For example, a physician may claim that a mother who consumed alcohol or illegal drugs during the pregnancy contributed to or caused the baby's brain injury.

D. The Fetus Is Not Viable.

Under most wrongful death statutes, the parents of a deceased child may bring an action against the physician, the nurse, or the hospital who negligently caused the child's death.  In obstetrical cases involving a stillborn, it is usually necessary to prove that the fetus was viable at the time of death. In some states, a claim exists if the fetus is born alive, whether it is viable or not at the time of death.

(c) Copyright Dov Apfel, November 1995. All rights reserved.

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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