Articles Posted in Birth Brain Trauma

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When a baby suffers from a brain injury at birth, it is a devastating event for the entire family. The family is stricken with the knowledge that the happy healthy baby that they were expecting has received a birth injury that will render that child disabled for the rest of their lives. In cases of this nature where medical malpractice is involved, it is especially devastating for the parents. Many problems can affect the medical malpractice lawsuit in these cases. There are generally more than one doctor present at deliveries in hospitals these days. When there is more than one doctor, it can be difficult to determine which doctor deviated from acceptable medical practice of the day.

One case that involved a child who was delivered by an obstetrician in New York City, left this question unanswered. One of the doctors who attended the birth admits that he was negligent, but claims that the obstetrician who was responsible for the delivery of the child was responsible for the larger portion of blame. He contends that he was not involved in the actual delivery or prenatal care of the mother. He contends that the vast majority of brain damage occurred during that time of the delivery and not after the delivery when he became involved in the case. The doctor stated that he was responsible for caring for the newborn infant when the baby born. He stated that the primary injury to the child occurred when the obstetrician who delivered the child failed to administer oxygen to the mother when the child compressed the umbilical cord during labor. The obstetrician failed to notice that the child was not getting enough blood or oxygen through the umbilical cord until the child had been hypoxic for some time.

Following the delivery of the baby, the obstetrician handed the infant off to the Long Island pediatrician who was standing by. He contends that he was negligent because when he observed the child’s blood tests, he noticed that there was a very high bilirubin count. A high bilirubin count is indicative that the child has had a traumatic birth and that the baby may have suffered from a brain injury. He states that he was also negligent in that the child also had a high hematocrit level which would also tend to indicate that the baby had suffered brain damage during birth. If he had acted immediately with appropriate oxygen therapy, there is a chance that the child would not have suffered as severe a brain injury as he did. However, the pediatrician failed to act and some undetermined time after the child was born, it was discovered that the infant was severely brain damaged.

The parents of the child filed a personal injury lawsuit to recover damages from the medical malpractice that existed in that delivery room. The parents won the lawsuit and were awarded over two million dollars in damages. The pediatrician filed a motion that would prevent the family from recovering more than $450,000 from him personally as a result of the injury to the baby. He contends that he was not the person who caused the greatest amount of damage to the baby and that he should not have to share equally with the cost of damages that the obstetrician caused. The court evaluated the decision of the trial court and determined that the jury was not wrong in awarding damages to the parents and that the sum that was awarded was not extreme. They also contend that the testimony that was given at trial did not provide any type of identifiable manner in which the percentage of guilt could be divided between the two doctors. For that reason, the appeals court determined that the prior order of the court was accurate and that the responsibility would be shared equally between the two doctors.
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This is a case where the Manhattan Court reiterated the principle that when a single indivisible injury, such as brain damage, was negligently inflicted upon the plaintiff, defendants can be held jointly and severally liable notwithstanding that the latter neither acted in concert nor concurrently with each other.

A mother, who suffered gestational diabetes during her pregnancy, gave birth to an unusually large baby who is the plaintiff in this case. At the time of the trial, plaintiff was severely and permanently retarded as a result of the brain damage she suffered at birth. The evidence established that the obstetrician who had charge of the ante partum care of plaintiff’s mother and who delivered the plaintiff, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that the defendant, the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant’s condition after birth. Based upon this evidence, the jury concluded that the obstetrician committed eight separate acts of medical malpractice, and the defendant pediatrician committed three separate acts of medical malpractice.

During the trial, the plaintiff’s witness concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Although the obstetrician’s negligence contributed to the plaintiff’s brain damage, the medical testimony demonstrated that the defendant’s negligence was also a substantial contributing cause of the injury. No testimony was adduced, however, from which the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors.

After the jury was charged, the Long Island defendant contended that he was only “liable for what injury he puts on top of the injury that exists”, and therefore responsible only as a successive and independent tort-feasor. He claimed that his liability was not joint and several but rather was independent and successive.

The Court did not agree.

The Court held that when two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable. This is so because such concerted wrongdoers are considered “joint tort-feasors” and in legal contemplation, there is a joint enterprise and a mutual agency, such that the act of one is the act of all and liability for all that is done is visited upon each. On the other hand, where multiple tort-feasors “neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Under successive and independent liability, of course, the initial tort-feasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts, including aggravation of injuries by a successive tort-feasor. The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused.

The Court stated that While the wrongful acts of the two defendants were not precisely concurrent in point of time, the defendants may nevertheless be joint tort feasors where, as here, their several acts of neglect concurred in producing the injury.”

According to the court, he jury was unable to determine from the evidence adduced at trial the degree to which the defendants’ separate acts of negligence contributed to the brain damage sustained by the plaintiff at birth. Certainly, a subsequent tort-feasor is not to be held jointly and severally liable for the acts of the initial tort-feasor with whom he is not acting in concert in every case where it is difficult, because of the nature of the injury, to separate the harm done by each tort-feasor from the others Here, however, the evidence established that plaintiff’s brain damage was a single indivisible injury, and defendant failed to submit any evidence upon which the jury could base an apportionment of damage.
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A hospital found negligent was forced to pay out a birth injury settlement in the amount of $5 million to a 30-year-old woman whose child suffered severe birth injuries. The injuries were a direct result of medical malpractice.

A study reports that medical records submitted to the court showed that the plaintiff’s medical history illustrated no dire warning – i.e. nothing to be concerned about. The woman had progressed through her first pregnancy normally.

However, the plaintiff’s midwife reported that the 30-year-old was admitted into the hospital in premature labor with a 2cm-dialated cervix. An external fetal monitor was placed on her abdomen.

Approximately seven hours later, the fetal heart monitor detected a decline in the baby’s heart rate. The monitor also began not showing the complete tracing of contractions.

“Because it is difficult to determine if the deceleration of a baby’s heart rate is a direct reason to be concerned, there are standard procedures put into effect to further monitor what is going on in the womb,” the midwife states.

However, the attending obstetrician failed to follow through with standard procedures even though other concerns continued to surface. Delivery staff should have been put into action when the position of the baby (which would cause a prolonged delivery) was revealed and fluctuations in the babies heart rate continued.

An emergency Cesarean section that would have provided a faster delivery and lessened or removed the chances of birth injury to the child was not performed.

A doctor said that “testimonies and court records brought up one incident after another where alternative measures should have been considered – especially after the plaintiff herself started to show signs of distress.”

Almost 12 hours after the attending physician was initially paged to intervene, the obstetrician finally made the decision to immediately deliver the baby via vacuum suction instead of going to an operating room and performing a c-section. Hospitals in The Bronx and Brooklyn use this as standard procedure in cases like this one.

Because the staff allowed the situation to reach such a critical level, the baby began suffering from seizures in the NICU and MRIs revealed severe brain damage. The child is likely to be unable to walk, talk, sit without support, or even feed herself.
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A Washington D.C. infant abuse case involving bleeding on the brain took an unexpected turn when a neurosurgeon testified that bleeding was caused not by abuse, but by birth trauma, sources told NY Brain Injury Lawyers. The six-week-old (at the time) infant may or may not have been abused, but the brain injuries came from another source entirely.
Medical records dating from 2009 indicated to the neurosurgeon that the bleeding on the brain came from a portion far too deep to have been caused by abuse. His theory is that the injury was caused during a difficult delivery, which caused tearing of the fibers of the brain. This injury would be recurring, meaning it could have easily not caused trouble for weeks.
“It verified to me that this is a birth-related injury,” the neurosurgeon said to NY Brain Injury Lawyers.
He also stated there was “no evidence of any kind of mechanical trauma.” He believed the brain injuries were not caused by the defendant in the abuse case at all.
There are still other charges the defendant must contend with in the child endangerment trial, however. The father of the baby has been charged with six counts total, including a broken arm, the infant spitting up blood, and the child ceasing to breathe entirely on July 8, 2009.
The prosecution contends that the father was the one watching over the child each time one of these injuries occurred.
Medical witnesses for the prosecution testified before the court that the child had severe brain-stem injuries which stopped the infant’s heart temporarily. The loss of oxygen to the brain has caused permanent brain damage.
According to the defense, abuse did not cause the broken ribs which showed up on an X-ray of the infant. They could well have been caused by CPR which is used in Nassau and Suffolk hospitals.
The neurologist did not speak about the other injuries the child suffered, but he remained insistent that the brain injuries were not the cause of abuse at all. He testified that any shaking hard enough to cause brain damage would also cause damage to the spinal column, and he could find no evidence of neck injury.
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