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.