CEREBRAL PALSY
MALPRACTICE CAN BE THE CAUSE
By J. Douglas Peters
Cerebral palsy is a syndrome rather than a disease. First described by Dr. William Little in 1843 and sometimes called "Little’s disease", it results from maldevelopment of, or injury to, motor centers or their connections within the central nervous system.
In the past, "cerebral palsy" has been used loosely. Today, however, there is agreement that the term applies to an abnormality in cerebral control of motor function dating to events in the prenatal, perinatal, or postnatal periods. The syndrome is best described as a chronic disability characterized by aberrant movement or posture. The condition is not progressive. Active disease of the central nervous system is not present at the time of diagnosis.
If a child’s motor disability or dysfunction is solely of intellectual, metabolic or vascular origin, the disability may not be cerebral palsy. Major malformations of the nervous system are also excluded from the definition. Though children with acquired compromised motor functions are not excluded, they are usually considered separately.
Because cerebral palsy has been so loosely defined, diagnoses and epidemiological studies have lacked precision. It is believed, however, that about 5 out of 1,000 children have cerebral palsy. Of these, 50 percent are only mildly disabled, but 10 percent are severely handicapped; 25 percent are of average intelligence; 30 percent are mentally retarded. About 35 percent of those with the syndrome suffer from seizures, and 50 percent have speech disorders. More than 300,000 people in the United States have cerebral palsy.
Types of Cerebral Palsy
Clinical classification is based on the nature of the motor deficit observed. The following broad categories are set forth in Nelson: Textbook of Pediatrics:
·
Spastic cerebral palsy is most common. Patients show hyperexcitability progressing with age to spasticity and rigidity in the muscles. Doctors speak of scissoring of the legs in the early stages. The syndrome affects, in any combination and severity, from one to all of the limbs, and the head and neck.·
Extrapyramidal cerebral palsy is usually not diagnosed until the age of six months. It is characterized by decreased muscle tone early in childhood, progressing to "writhing" movements later on.·
Atonic cerebral palsy is much like extrapyramidal except that tendon reflexes may be brisk and a severe mental defect is usually present.·
Mixed types generally have a combination of symptoms of the other palsies.Causes
Opinions on the causes have differed since cerebral palsy was first described in 1843. Perlstein’s 1952 review indicated that 60 percent of the causes were natal. Today’s thinking still regards perinatal trauma as a predominant cause, but recent studies indicate that prenatal factors may play a major role. (The statistics in these studies, however, conflict.)
A recent review found the causes to be prenatal in 50 percent of the cases; perinatal, in 33 percent; and postnatal, in 10 percent. Patients studied were 142 children with confirmed cerebral palsy, born after January 1, 1970, and living in the greater Seattle area. The researcher believes that 6 percent of the perinatal cases could have been prevented if accepted medical practices had been implemented and that possibly another 4 percent could have been prevented with fetal monitoring.
A much larger retrospective study found that 38.5 percent of the causes were prenatal; 46.3 percent, natal; and 15.2 percent, postnatal. This study involved 1,503 patients seen since 1947 at the Cerebral Palsy Center in St. Louis. The investigators associate the decreasing incidence of cerebral palsy with improved prenatal and perinatal care. Narrowing the definition of cerebral palsy could also help explain the reduction
While the St. Louis study found prematurity to be the most prominent factor associated with the syndrome (28 percent of cases), the Seattle authors maintain that knowledge of the pathogenesis of cerebral palsy in prematurity is incomplete. Moreover, the Seattle study associates between 30 to 40 percent of cases with low birth weight.
Most authorities agree that the best epidemiologic studies on cerebral palsy were prospective, rather than retrospective. Nelson and Ellenberg analyzed the data from the only prospective study and found that the risk rises when certain obstetric complications are present in combination with low 5-minute Apgar scores. The data were accumulated by following the pregnancies of women who registered for prenatal care at twelve urban teaching hospitals between 1959 and 1966 from the first visit through labor, delivery, and birth. The infants were evaluated shortly after birth and upon discharge from the hospital. Pediatric and neurological examinations were then performed when each child was seven years old. The presence or absence of cerebral palsy was known for about 37,000 children.
When Nelson and Ellenberg analyzed only the Apgar score, they found that half the children with cerebral palsy had normal scores (7 to 10) at 1 minute, and nearly three-quarters had normal scores at 5 minutes. They concluded, therefore, that a substantial proportion of cerebral palsy is related to factors other than intrapartum asphyxia. When normal-birth-weight infants were born after complications like breech delivery, low fetal heart rate, and nuchal cord, and had very low 5-minute Apgar scores, the risk of cerebral palsy was significantly increased. As the authors indicate, however, a low score can be the result of asphyxia, maternal medication, congenital defects, hypovolemia, or infection. Thus, there is a question as to precisely what the Apgar score establishes. The authors conclude that the data cannot support of "causal path" between obstetric complications and low Apgar score, and low Apgar score and outcome.
Although opinions on the causes of cerebral palsy differ, all studies agree that it is caused by prenatal, perinatal, or postnatal events. Some of these may well be the responsibility of the hospital, the obstetrician, or the pediatrician.
Liability
I. Prenatal Events
Liability may be imposed on physicians for failing to maintain adequate prenatal records, for failing to review the mother’s history (when the result is a premature cesarean section delivery), for failing to recognize high risk pregnancies, for failing to obtain an informed consent, or for failing to successfully terminate a pregnancy.
Case Illustration
The patient had delivered a 9 lb. 2 oz. child by cesarean two years earlier and consulted her family practitioner about missed menstrual periods. The practitioner suspected an ovarian mass when a urine test was negative and referred her for a sonogram, which showed that she was pregnant. The practitioner provided prenatal care but did not track the date of the pregnancy by recording changes in fetal heart tone, uterine size, or quickening. Amniocentesis was not performed.
A second physician, who had not previously seen the patient or reviewed her prenatal history, performed a cesarean even though the patient had a hypotensive incident when the anesthesia was administered. The infant was born six weeks premature with severe respiratory difficulties and poor color and was later diagnosed as suffering from cerebral palsy and severe mental retardation. The mother sued both physicians.
The case was resolved by a structured settlement with a present value of $975,000.
Physicians have a duty to inform patients of significant treatment alternatives and any possible consequences.
The following case found a physician liable to the infant plaintiff for failing to obtain informed consent from the mother.
Case Illustration
The plaintiff, who was born with cerebral palsy, sued her mother’s obstetrician for failing to obtain prenatal consent. The physician argued that his obligation to disclose risks and alternatives of obstetrical care ran only to the mother. Therefore, the infant’s action must be derivative of the mother’s action, which was never brought and would have been barred by the statute of limitations.
The New York Supreme Court, Appellate Division, held that both the mother and the unborn child, who may each be directly injured, are each owed a duty, independent of the other, by the mother’s physician. The appellate court affirmed the trial court’s denial of the physician’s motion, and the case was sent back for trial.
Physicians may also be found liable for negligently performed abortions and the subsequent failure to diagnose a continued pregnancy.
II. Perinatal Events (labor and delivery)
A. Induction Errors. Liability may be imposed on physicians for failing to administer Pitocin (including contraindicated, premature, excessive, or improper administration) and for failing to properly monitor the fetus during labor.
Basic Standard of Care:
The American College of Obstetricians and Gynecologists (the College) addresses the topic of induction or augmentation of labor with oxytocin (Pitocin). Oxytocin should be used only when required for the benefit of the mother or fetus. The obstetrician should review the course of labor, examine the patient, and establish the need for augmentation of labor. A responsible physician should be present in the labor area during the first 20 minutes of infusion to manage any unexpected effects. Thereafter, the obstetrician should be readily accessible to manage any complications. Oxytocin should be administered intravenously only, and the obstetrics department should have a written protocol for its preparation.Electronic fetal monitoring should be used to record fetal heartbeat and uterine contractions continuously when oxytocin is administered. If this equipment is not available, fetal heartbeat, frequency and character of contractions, rate of oxytocin flow, and maternal pulse should be recorded at regular intervals, preferably of no less than every 15 minutes. The mother’s blood pressure should be recorded at least every half hour and more frequently if indicated.
Interpretation and Customary Practice:
Labor is induced for two reasons. First, if a patient has a history of rapid labor or lives far from the hospital, planned induction can avoid unattended delivery outside the hospital. This is called elective induction and has been used for other reasons as well, such as the physician’s convenience. Second is medically indicated induced labor—labor required by medical conditions. The most common of these include premature rupture of the membranes, hypertension, diabetes mellitus, prediabetes, Rh sensitization, recurrent pyelonephritis, repeated intrauterine fetal death, and prolonged pregnancy.Induction is not advised when labor would endanger either the mother or the infant. Contraindications include abnormal fetal position or presentation, cephalopelvic disproportion, previous uterine scars, and a history of previous traumatic delivery.
Physicians may be liable for administering contraindicated Pitocin, which is often accompanied by the failure to give oxygen in a timely fashion. Two cases illustrate these errors.
Case Illustration
The infant was born with severe respiratory distress and now suffers from cerebral palsy as a result of contraindicated Pitocin administered during labor. The mother, 42, had previously delivered a normal full-term child with Pitocin. Although the first stage of labor was normal, the obstetrician ordered Pitocin when effacement and dilation were complete and the fetal head was not yet engaged. The mother received Pitocin for over an hour, but only 4 fetal heart-rate readings were noted on the chart.
The infant sued the obstetrician, the anesthesiologist, and the hospital, alleging improper Pitocin administration, inadequate monitoring of fetal effects of the drug, and inadequate resuscitative measures. A jury awarded $7.5 million.
Case Illustration
The mother was admitted to the hospital in active labor, and initial examination revealed fetal misposition and meconium staining. The family physician failed to consult an obstetrician, and the anesthesiologist administered Pitocin despite the signs of fetal distress. An obstetrician was called in 2½ hours later. The infant sustained brain damage resulting in cerebral palsy, lack of speech, and lack of bowel or bladder control.
The case was resolved by a structured settlement with a present value of $2,098,000.
B. Failure to Monitor. Liability may be imposed on physicians for failing to electronically monitor labor, for inadequate fetal monitoring, or for failing to diagnose and respond to fetal distress.
Basic Standard of Care
. The College has specified that data obtained at the time of admission to the labor suite should include the date of the last menses and expected date of delivery, vital signs, fetal heart tones, time and content of last meal, allergies, preferred anesthetics, etc. Laboratory studies should test hemoglobin, hematocrit, and urine for protein and sugar. Any woman in labor should be closely attended by someone able to identify and inform the responsible physician immediately of any untoward sign or symptom and to determine whether labor is progressing normally and when delivery in imminent.Interpretation and Customary Practice:
Normal labor has three stages. The first lasts from the onset of pains until the cervix dilates completely. While the membrane usually ruptures at the end of the first stage, rupture may take place earlier or at delivery. The second stage begins with complete dilation and ends when the baby is delivered. The third begins with delivery of the baby and ends with delivery of the placenta. During normal labor, the uterus exerts force from the fundus to the cervix. As labor advances, the upper uterine segment progressively shortens, its walls thicken, and muscle fibers retract. The ascending inferior border of the upper segment exerts traction on the lower segment and the effaced cervix. These structures are pulled upward around the presenting part as it is simultaneously pushed through the gradually enlarging opening.Measures should be taken during labor to assuage a patient’s apprehension and discomfort. Ideally, a physician or nurse should remain with each patient throughout. Medical personnel should visit the patient periodically and record certain observations. Fetal heart sounds, which indicate the condition of the fetus, should be recorded at least every 30 minutes during the first stage and more frequently during the second. The mother’s blood pressure, which may increase markedly, should also be checked at 30-minute intervals. The attendant should check the length, duration, and intensity of uterine contractions and the interval between them. The mother’s perception of a contraction is unreliable because she feels it only several seconds after it has begun to several seconds before it ceases. Vaginal examinations will determine the progress of cervical dilation and descent of the fetus, but they should be minimized to reduce the possibility of infection.
Case Illustration
The mother was admitted early in the morning after her membranes had spontaneously ruptured at about 10:30 p.m. the previous night. The severely injured infant was delivered vaginally almost three hours after the mother was admitted. Plaintiffs sued the doctor, alleging negligence for failing to order electronic fetal monitoring, for delay in responding to the hospital’s notification that the high-risk mother had been admitted, for failing to promptly deliver the infant by cesarean, for failing to have a neonatalist present at the delivery, and for performing a high-risk delivery at a hospital not properly equipped. The case was settled for $1.8 million.
Case Illustration
When the mother was admitted to the hospital in labor, she had high blood pressure, protein in her urine, and edema. She was examined by the obstetrician, who then left the hospital. An intern ruptured the membranes 1½ hours later, and internal monitoring disclosed late fetal heart decelerations and loss of beat-to-beat variability. The obstetrician was not notified for an hour and did not perform the cesarean until another hour had passed.
The infant sued, alleging that the mother was pre-eclamptic on admission and that the failure to diagnose and treat the resultant fetal distress caused the infant’s injury. The case was settled with a present value of $1.4 million.
C. Failure To Perform Cesarean Section. Liability may be imposed on physicians for failing to perform a cesarean, for performing a protracted forceps delivery of a breech position infant, or for an unreasonable delay in performing a cesarean.
Basic Standard of Care:
The College has not published guidelines for performing a cesarean.Interpretation and Customary Practice:
Cesarean section, sometimes referred to as abdominal hysterotomy, is the delivery of a fetus, placenta, and membranes through surgery. It is generally performed when a vaginal delivery promises to be hazardous to either the mother or the baby. Its frequency has increased as improved procedures have yielded decreasing rates of morbidity and mortality.Cesarean sections may be preferable to vaginal delivery in a number of circumstances. Some patients with diabetes should have their babies delivered by cesarean several weeks before term to avert fetal death in utero during the last three weeks. Patients over thirty-five who are pregnant for the first time and who have complications with their pregnancy should have a cesarean. Patients who have had previous cesareans, vaginal repair for such problems as uterine prolapse or cystocele, or a poor obstetrical history, may also require cesareans.
Cephalopelvic disproportion, uterine dysfunction, or obstruction of the birth canal can bring about dystocia, which may necessitate a cesarean, particularly where the complication renders vaginal delivery impossible. Placental complications may also indicate a cesarean. It is the treatment of choice in most cases of placenta previa and may be performed to control profuse bleeding associated with abruptio placenta. If the fetal heart rate is slow and irregular, cesarean alone may not save the infant; the fetus may already be damaged and may die before it can be delivered.
Cesarean section is indicated for most babies in a transverse or breech presentation, particularly if the baby is large. Fetal distress—abnormalities in heartbeat, presentation of a prolapsed cord, or some other development indicating that the fetus’s oxygen supply is in jeopardy—may also indicate the need for a cesarean.
When injury to either mother or infant results from a complicated birth, a common allegation is that the physician negligently failed to perform a cesarean or to inform the parents that this option was available. The following case is typical:
Case Illustration
The mother was admitted in labor. At 11:30 p.m., the fetal heart monitor showed repeated, severe, variable decelerations, which continued after various changes in the mother’s position. The decelerations were properly interpreted to indicate cord compression. The mother was prepared for a cesarean at midnight. These decelerations continued, and the fetal heart base line rose from 140 to more than 180 beats per minute at 12:19 a.m. The cesarean was never performed, however, and the infant was delivered vaginally at 2:47 a.m., with the umbilical cord wrapped twice around her neck.
The mother’s experts all testified that the doctors were negligent in failing to deliver the infant by cesarean by 12:30 a.m., and that the infant’s injuries were caused by perinatal hypoxic brain damage.
One defendant’s expert testified that a cesarean was unnecessary, and another testified that the infant’s injuries were due to her small size at birth (4 pounds, 13 ounces) and her mother’s cigarette and marijuana smoking during the pregnancy.
The parties agreed to a structured settlement, which could amount to $13 million, while the case was on appeal from a jury verdict of $3,400,000.
Physicians may also be liable for performing a vaginal delivery of a breech position infant. Breech presentations and complicated and prolonged labor increase the likelihood of fetal oxygen deprivation (hypoxia). Where hypoxia can be avoided by a cesarean and the failure to do so produces an infant with cerebral palsy, the physician will probably be found liable.
D. Failure to Recognize or Respond to Twins. Liability may be imposed on physicians who fail to recognize or properly respond to twins where this failure leads to an hypoxic episode for either twin.
Case Illustration
The mother was admitted for delivery of a previously diagnosed twin pregnancy. The first twin was born without complications, but the mother’s contractions stopped. Pitocin was administered with only infrequent monitoring. The second twin remained in the birth canal for almost an hour and was born with severe brain damage and cerebral palsy. The case was settled for $2,300,000, apportioned among the hospital, the obstetrician, the pediatricians, and a midwife.
III. Postnatal Events
Liability may be imposed on physicians for failing to properly treat an infant’s respiratory distress, for failing to properly maintain neonatal temperature, for failing to perform a timely exchange transfusion, and for failing to admit an infant with a high temperature to the hospital.
Basic Standard of Care:
The American Academy of Pediatrics and the College have addressed this.The first few minutes of life may determine the quality of that life. Prompt, organized, and skilled response to emergencies in this period requires that institutions delivering maternal-fetal care have written policies delineating responsibility for immediate newborn care, resuscitation, selection and maintenance of necessary equipment, and training of personnel in proper techniques.
The individual who delivers the neonate is responsible for the immediately postdelivery care of the newborn until another person assumes this duty….
Recognition and immediate resuscitation of the distressed neonate requires an organized plan of action and immediate availability of qualified personnel and equipment…. A physician should be designated to assume primary responsibility for initiating, supervising, and reviewing the plan for management of depressed neonates in the delivery room.
Postnatal events apparently cause 10 to 15 percent of cerebral palsy cases, a substantial percentage of these cases may be preventable.
A. Failure to Resuscitate. Liability may be imposed on physicians who fail to resuscitate or otherwise respond to respiratory distress.
Case Illustration
When the mother was admitted, she had been in labor for six hours. Her membranes spontaneously ruptured nine hours after admission, and the obstetrician examined her for the first time shortly thereafter. Although meconium staining was present, the obstetrician started external rather than internal fetal monitoring. Thick meconium was expelled three hours later, and the infant was delivered vaginally 45 minutes after that. The obstetrician did not, however, resuscitate the infant, but transferred him to a nurse-anesthetist who waited 15 minutes before performing suction and intubation. The infant now suffers from cerebral palsy and mental retardation. A jury awarded $1 million.
Case Illustration
The plaintiff, 22, was delivered by the defendant obstetrician in 1961. She did not breathe spontaneously and was resuscitated for about 13 minutes by the obstetrician and a nurse and subsequently transferred to the nursery. Six hours later, the attending pediatrician noted persistent sluggish respiration, which he attributed to the effects of Demerol and scopolamine administered to the plaintiff’s mother during labor.
Plaintiff alleged negligence for failure to diagnose narcotic-induced respiratory distress and failure to treat the symptoms with a narcotic antagonist and positive pressure oxygen. Plaintiff also alleged that her brain damage was the result of hypoxia during this period. The case was settled with a present value of $1.2 million.
B. Failure To Treat Blood Conditions. Liability may be imposed on physicians who fail to diagnose or respond to blood incompatibilities.
Case Illustration
Prior siblings had an ABO blood incompatibility producing hyperbilirubinemia. Six hours after birth, jaundice appeared, and the infant’s serum bilirubin levels were followed using readings done by hand. The infant’s readings peaked at only 17 milligrams, and he eventually developed cerebral palsy.
Plaintiff maintained that cerebral palsy as a result of the kernicterus could have been avoided by a blood exchange transfusion and that the reliance on hand readings, known to be inaccurate, disguised the true level of bilirubin. The case was settled for $400,000.
C. Failure to Treat Neonate Fevers. Liability may be imposed on physicians who fail to timely treat neonate fevers.
The potential danger of high or prolonged fevers to the neonate brain has long been recognized. Where treatment failure cause cerebral palsy, liability may be found.
Case Illustration
At the age of one month, the infant experienced projectile vomiting and heavy breathing during a cold and was taken to the hospital where probably pyloric stenosis was diagnosed. During surgery, the infant’s small intestine was perforated but the perforation was apparently corrected. The infant was readmitted and remained in the hospital for fifteen days for treatment of an infection of the surgical wound.
Two days after discharge, his mother took him to the defendant physician’s office for treatment of his diarrhea, and medication was prescribed. When the infant's temperature reached 105 degrees, he was taken to the hospital's emergency room, where a resident refused to admit him despite the high fever and a sore throat. The infant’s fever increased, and he experienced convulsions later that night.
At 10:00 p.m., his parents called a second physician who did not examine the infant until 10:00 a.m. the next day, when the fever had abated. That afternoon, the infant’s temperature rose again, and the second physician admitted him by telephone to the hospital, where he was diagnosed as suffering acute gastroenteritis. The infant was later diagnosed as suffering cerebral palsy as a result of brain damage sustained during his high fever. The case was settled for $1 million.
Conclusion
Too many cases of cerebral palsy are the result of substandard medical care. Superficial scrutiny of these cases by physicians and a willingness to attribute many of these cases to "Acts of God" should not inhibit attorneys from investigating each case presented. In some cases, determining the cause may be impossible, but in others, appropriate review will reveal that professional failures to act or improper actions caused injuries.
Notes: