Establishing Liability for Medical Errors Causing Cerebral Palsy

With a single medical mistake a newborn's life can be permanently altered. Newborn babies are incredibly fragile and damage to a developing brain can affect all aspects of a child's life. Notably, damage to certain parts of a developing brain can result in cerebral palsy (CP). CP is not a single condition but rather a group of disorders marked by a lack of muscle control and abnormal bodily movements.

In many cases, CP is not caused by the negligence of medical professionals during labor and delivery. The origins of the disorder are not always clear, but in many cases it arises well before a child's birth.

In some cases though, CP develops as a result a medical professional's negligence. For example, a doctor may fail to observe signs of fetal distress and may consequently fail to act in a timely manner to prevent brain damage. In these cases, the disorder can be particularly difficult for parents to face. The knowledge that CP could have been prevented with proper medical treatments and adequate care can be heartbreaking. Aggravating this situation, medical professionals and organizations often refuse to accept responsibility for this disorder, even when the causes are clear.

Criteria According to the American College of Obstetricians and Gynecologists

To narrow the scope of liability in these cases, the American College of Obstetricians and Gynecologists has provided particular criteria for determining when a doctor's errors during labor or delivery should be deemed the cause of cerebral palsy.

These criteria, outlined in a document titled "Neonatal Encephalopathy and Cerebral Palsy" (NEACP), are routinely used by insurance defense attorneys to defend against allegations of medical malpractice. These attorneys allege that the NEACP establishes the standards accepted throughout the profession.

Unfortunately these criteria are unduly stringent and do not account for all instances where a doctor's failure to provide appropriate care would cause or aggravate a child's injuries. To observe the unreasonably narrow nature of this scope, one need only compare the criteria used in the NEACP to that used in widely-accepted medical literature.

Factors Considered by a Study Published in the New England Journal of Medicine

A recent study published in the well-established New England Journal of Medicine provides one such point of comparison. In this study, a group of doctors explored the effects of whole-body hypothermia on newborn babies who had suffered brain damage. Prior studies had demonstrated that hypothermia could protect animals against brain injury after they suffered a loss of oxygen to the brain, but the effects on newborn babies were unknown.

To determine whether a newborn was eligible for the study, the doctors considered a number of different factors. One consideration was the pH level of the infant's umbilical cord blood. The doctors included infants with a pH level of 7.15 or lower, as long as the infants met certain other criteria.

By including infants with pH levels in the range of 7.0 to 7.15, the New England Journal of Medicine study acknowledges that infants in this spectrum may suffer brain injuries. Even if an infant's umbilical pH level is above 7.0, the child may still suffer brain damage resulting in CP. In contrast, the NEACP criteria insist that CP can only be caused by a delivery error if the pH is lower than 7.0.

The Differences Between These Considerations

To the untrained eye these differences may seem inconsequential. However, a great deal of medical malpractice litigation relating to cerebral palsy centers upon this very distinction. When a professional group provides standards and insists that these are the accepted standards in the industry, this can be difficult to counter. It is important to recognize that this is a professional group though, and its goal is to advance the interests of the profession.

The American College of Obstetricians and Gynecologists narrows the scope of viable legal claims and protects its members' interests by limiting the situations where doctors can be held liable for birth injuries. In so doing, it undermines meritorious legal claims and harms those who have already suffered egregious wrongs.