In recent years, politicians in the country have repeatedly proven willing to place political expediency and corporate interests ahead of the rights of the general public. In yet another example of this, New York Governor Andrew Cuomo has reportedly introduced a measure as part of his budget proposal which seeks to limit the rights of victims of malpractice, including brain damaged babies, without regard for fairness or the actual facts of the individual cases. Ralph Nader has spoken out against this measure on his website.
In the vast majority of medical malpractice cases involving a baby who suffers a brachial plexus injury at birth, the central issue which is being contested is whether the obstetrician used excessive force when freeing the entrapped shoulder. The defense typically advances three arguments:
- the brachial plexus injury did not occur during the delivery but on chronic stretching of the brachial plexus in utero prior to delivery;
- the obstetrician used only gentle traction;
- whatever the degree of traction used, it was necessary because without prompt delivery, the baby would have died or would have been severely brain damaged.
The proof of the first defense is based on reports of babies having a brachial plexus injury even though they were delivered via Caesarian Section. This defense overlooks the fact that improper techniques used during the Caesarian, including an incision which is too small or the use of inappropriate traction, can cause a brachial plexus injury. In addition, if there is no muscle atrophy of the affected arm and shoulder at birth, the injury cannot be chronic.
The second defense is basically nothing more than a self-serving assertion by the obstetrician that he was "gentle." It ignores the fact that gentle traction cannot cause severe injuries to the brachial plexus.
The third defense is an excuse for the failure to use proper technique, that is, to follow the shoulder dystocia drill in which all obstetricians are trained. The fact that a shoulder dystocia is an obstetrical emergency does not mean that the obstetrician is permitted to panic and use excessive force to deliver the baby.
While most children who develop cerebral palsy have uneventful births, in a small percentage of children, however, their births are associated with a period of oxygen deprivation. The medical records in such cases will typically refer to perinatal asphyxia or hypoxic-ischemic encephalopathy. Where the period of oxygen deprivation at birth is due to medical malpractice, the injured child may have a right to monetary compensation for his injuries.
In the 1990s, the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics issued a report which had a clear purpose: to make it almost impossible to prove that any case of cerebral palsy was caused by oxygen deprivation at birth and, hence, by obstetrical negligence.
Fortunately for children with cerebral palsy who have been the victims of obstetrical malpractice, the advent of a new technology in the past five years has changed the legal landscape. So-called cool cap technology has become available in essentially all large hospitals offering care to newborns. This technology offers hope of salvaging more brain function in newborns who have been subjected to oxygen deprivation during the time of labor and delivery. In order to justify using this technology, however, the hospitals require that severe oxygen deprivation at or near birth be diagnosed. If the ACOG standards were used, no infants would get cool cap treatment. Thus, in practice in the real world the ACOG standards have been shown to be what they are: a legal stratagem rather than a scientific statement. A by-product of the use of the cool cap technology is that the medical records are now more honest. In the cases of children who receive cool cap treatment and who still go on to develop cerebral palsy, the medical records now permit a fairer assessment of whether obstetrical negligence was a cause of their brain injuries.