Due to future economic needs for babies injured in the birthing process, they are some of the only medical malpractice claims in Texas that remain viable. The causes of birth injuries due to medical error can stem from failure to screen the mother and baby prior to the birth to failing to monitor the health of the mom and baby during the process. Either way, these cases are hard to prove and require expertise. Expert medical malpractice lawyer Brian Steward joins us to discuss.
Justin Hill: Welcome to Hill Law Firm Cases, a podcast discussing real-world cases handled by Justin Hill and the Hill Law Firm. For confidentiality reasons, names and amounts of any settlements have been removed. However, the facts are real, and these are the cases we handle on a day-to-day basis.
All right. We’re back with another episode of Hill Law Firm Cases, and we’re here talking with Brian Steward regarding medical malpractice lawsuits. Brian is a local lawyer in San Antonio, an injury lawyer, a mediator, and he has had a long history handling medical malpractice from plaintiff’s and defendant’s side and also pre and post law changes that made it almost impossible in the state of Texas to bring these types of cases.
One of the ways these types of cases have lived on though is in the birth injury context. That’s mostly because if somebody is injured at birth, a baby is injured at birth, their medical needs into the future are so significant and so catastrophic really for their families that the claims are still viable and the crazy cost of paying for experts to work these cases up is justifiable in those situations.
Brian, one of the only ones I’ve ever had experience with, was whenever I was in one of my old law firms. We got a call regarding a terrible birth injury and the baby was going to be injured for life. It was going to have cognitive issues for the rest of its life. The issue was whether or not during birth, there were signs that the oxygen had been deprived to the baby as it was being born.
It turns out, after experts and all this, we didn’t have a viable claim. The experts said, “This is a real risk that can happen,” and the doctors did everything right in this particular situation, and it could not have been avoided is what we were told. We didn’t have a viable claim, but I had spent enough time working up that case and started to realize just how catastrophic–
Before we talk about the law, when families go through a birth, it ends up with a baby that has a terrible injury, what are they looking at lifetime? Do the kids just bounce back or a lot of times they’re looking at lifetime future medical needs?
Brian: Most of the children who are delivered and survive that initial 48- to 72-hour period will ultimately be diagnosed with cerebral palsy, which is a catch-all for brain damage as a result of diminished or total lack of oxygen for a period during the time of the birth.
Justin Hill: Let me just interrupt. You mean most of the babies that survive who have had some sort of hypoxic or lack of oxygen injury during delivery?
Justin: Okay, sorry.
Brian: When those children and those parents ultimately are trying to evaluate what’s taken place, what happens is, unless they’re told at that time, which most hospitals won’t do, they’re trying to look at three, six, nine, 12 months later and that child is failing to make certain landmarks, certain benchmarks, and they’re trying to figure out what these developmental delays are due to.
The problem with that is that unless you know what you’re looking for and unless you, as the parents, were suspicious of the events over the last few hours or days before delivery, you’re going to miss it. There are things that happen and the rules that obstetricians and Labor and Delivery Departments are supposed to follow that are set in stone. They didn’t just appear, and they’re not because of lawyers, they’re because the medicine dictates, for instance, that there has to be a rule that says, “It’s 30 minutes from the decision to perform a C-section to the actual incision.”
That is one of those things that even when I was a young lawyer 30 years ago was one of the rules, when we would talk to experts, when we would talk to high-risk OB-GYNs and Labor Department, they would say, “This has to be the response because that baby doesn’t have the stores, it doesn’t have the glycogen stores to respond to these losses.”
What that means is the mother is already laboring and is in a troubling labor, which means that they have been in labor for a long period of time, so the things that you have to do immediately. Those cases, at least the cases in the beginning of this litigation series and certainly still today are cases where you have nurses and OB-GYNs who do not respond to the crisis.
The only person that is affected by that crisis is that baby. You may not understand the true effect of that loss. Typically, the loss is oxygen because oxygen is the most important fuel to that baby. You may not understand the effect of that loss for months, if not years. Those cases are still out there. They all hearken back to fetal monitoring to issues in understandings of glucose levels for that baby during the first 5, 10, 24 hours after the delivery and what that means, it’s complicated medicine, but it’s not a mystery.
There are high-risk OB doctors who’ve seen this and dealt with this for years and neurologists who’ve seen this and dealt with this for years. They can track exactly when the insult took place. There’s a condition called leukomalacia. Luekomalacia takes a film of the developing brain and because of where certain deficits are found, where certain lesions are found, they can tell you where and how long the loss of oxygen was for that fetus pre-delivery. The medicine is there, it’s just that parents need to understand that as they are going through this incredibly hard time, there are events taking place that they need to be aware of.
Justin: For the most part, they’re not going to be told as they’re walking out of the hospital, “Hey, we probably screwed up, so keep an eye out.” A lot of times, people have to figure this out on their own and then work backwards, sometimes not even having a hint anything happened for maybe years.
Brian: No clue, although there are some things that you can be aware of. Glucose levels are very important. If you have a child who’s born hypoglycemic, which means below a certain level, that’s indicative of stress during that labor period. If you have a child who is not as responsive and you’ll hear various standards that are used. They’re being debunked, but there are various standards that are used in evaluating a child initially after birth. Sometimes, you’ll find that if you’re using those standards, you’ll have a child that’s not as responsive as it should be and your question has to be, “Why not?”
Justin: Lack of oxygen, that’s one of the more common causes of birth injuries. Sometimes, that’s going to be the result of medical negligence, sometimes it’s not. We looked at a case recently here that involved the failure of a doctor to screen for certain viruses. Are there pre-delivery tests that should be performed, whether it’s medical condition, viruses, blood levels that also can be a basis for medical negligence if a child is born with injuries that could’ve been avoided if those tests had been performed and read and responded to?
Brian: The American College of Obstetricians and Gynecologists have certain standards that they’ve set up for the last, at least 25 years, probably much longer than that about the pre-delivery and prenatal testing that should take place. That’s not necessarily even if the mother is high-risk, it’s just, “Here is the testing that we need to make sure that we are going to end up with a viable fetus and a viable baby.”
One of those is strep B testing. Strep B testing in a typical setting is something that is done periodically. It is important because if you have strep B, you as the mother, as the host, can give strep B to your fetus, your baby, and that can have some fairly harsh responses for your baby’s delivery. The requirement for most hospitals, at least since the mid to early ’90s was that there’s strep B testing, but unfortunately, that’s a situation where you have strep B testing of patients who are receiving periodic medical care and prenatal care.
The problem is where you have a patient population that doesn’t receive that kind of periodic prenatal care.
So, the patient gets to the point where she is 36, 37 weeks, which isn’t term, but it’s close enough to term to be viable and you have issues that are going on with the delivery or issues that are going on with the mother and you go to delivery, but you have not actually done a strep B test or a test like that. The problem then turns to, if it’s a vaginal delivery, then you’re going to have exposure of that fetus, that baby, to strep B. You’re going to compound whatever error by allowing this child to be born vaginally as opposed to being delivered by C-section and immediately placed in an ICU or an NICU.
There’s testing, whether it’s strep B testing or amniocentesis for certain patients, if they’re deemed high-risk by their OB-GYNs or just by their age, but their tests that should be performed during the prenatal care of these patients, these mothers, because there are things that can be done, there are things that can be identified, and things that can be ultimately changed.
Whereas, 30 years ago, the medicine wouldn’t allow you to change those things. Now, you have surgeries that are being performed on babies that are 35, 32, 30 weeks where you’re looking at heart procedures, where you’re looking at organ procedures. With the advance of science and the advance of medicine, you’re having cases where within five days of a delivery, there are pediatric cardiothoracic surgeons performing surgeries on patients to correct things that they never could have dreamed of years and years ago.
Justin: I think the takeaway from this is birth injuries are an incredibly complex and specialized area of the law that you really won’t even know if there was a negligence or a medical error until somebody with a lot of experience in a very specialized area of medicine had a chance to look at it. We’re going to talk about a few more things with Brian before the series is completed, but that’s going to do it for this episode.
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