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Birth Related Injuries Article

Orlando, Orange County and Central Florida Personal Injury and Complex Litigation Attorneys

BIRTH-RELATED INJURY IN FLORIDA:
HYPOXIC ISCHEMIC ENCEPHALOPATHY (HIE) AND THE NEUROLOGICAL INJURY COMPENSATION ACT (NICA)

In the realm of birth-related injuries, brain damage is typically caused by hypoxia, deprivation of oxygen to the baby, and ischemia, a decrease in blood flow to the baby's brain.

When we examine prospective claims, assuming a brain injury is present, we have to be able to determine when and how the brain insult occurred. Though the defense might like to argue otherwise, it is clear the vast majority of brain insults occur at or near the time of birth as opposed to being acquired before birth. Thus, the care given at or near the time of birth is critical and must be closely examined. 

Fetal heart monitor strips are often the best evidence available. These heart monitor strips for the baby help to determine when the brain insult occurred. 

There are two scenarios we typically see. First, there is the scenario where an acute or sudden event occurs depriving the baby almost immediately of oxygen (asphyxia, cessation of life sustaining oxygen). This type of sudden event may involve the rupture of the uterus, placental abruption, umbilical cord prolapse, or, for example, the umbilical cord wrapping around the baby's neck. When the uterus, for example, ruptures, the baby is quickly oxygen deprived and steps must be taken to avoid brain damage. There is a dispute in the medical community as to how long one can wait to deliver a baby by Cesarean section in such a setting, but suffice it to say, time is of the essence, and every minute counts if you are going to prevent brain damage to the baby. The defense will argue the obstetrician has 15 to 20 minutes, or more, to deliver the baby and yet still prevent brain damage. There is some medical literature to support such a proposition; however, at the same time, when the delay is significant and brain damage occurs, you can conclude within reasonable medical probability the damage occurred as a result of the delay. It simply is not worth the risk to wait 15 to 20 minutes, or longer, to rescue an oxygen deprived baby from a serious insult.

The fetal heart monitor strips, in a setting where the insult is acute and immediate, will demonstrate sudden deceleration of the heart rate of the baby to less than 110 beats per minute. This rapid deceleration is called bradycardia. When the fetal heart monitor strips show a sudden deceleration and the presence of bradycardia, the emergent nature of the situation must be appreciated, and immediate action taken. Where the uterus ruptures, for example, there is no reason not to initiate a Cesarean section STAT. The baby's only chance at survival is with the intervention of a Cesarean section.

It is somewhat analogous to drowning. Different people drown at different time intervals, but we know they all will drown without intervention. A baby has only a limited amount of oxygen to allow the baby to survive on its own in the event of a sudden insult. To attempt to categorize all babies as being able to survive for a particular amount of time without intervention is simply not couched in common sense medically.

The other type of condition we examine relates to the scenario where oxygen deprivation is not immediate, but rather partially present for an extended period of time. The fetal heart monitor strips may appear to fluctuate and then ultimately get progressively worse. As the mother feels a contraction, the heart rate of the baby should accelerate subsequent to the contraction in a recognized, normal pattern. If the normal accelerations cease to be present at the same level, while more significant decelerations occur, the pattern has been disrupted. The insult over an extended period of time can be just as devastating as a sudden insult.

The fetal heart monitor strips are the best tool for determining when and how the injury occurred. Arterial blood gas readings from the umbilical cord can also help to document the injury post-delivery. Specifically, arterial blood pH is measured with a baseline normal of seven, or above. Arterial blood pH falls in the presence of total oxygen deprivation (asphyxia). After the fact, you can also examine diagnostic studies, such as brain scans, to determine how the injury occurred. If the injury could not be prevented and occurred well before birth, the head circumference at birth might, for example, be abnormally small. If the injury occurred at or about the time of birth, the scans might actually appear normal, particularly, since it typically takes 12 to 24 hours for evidence of injury to appear. If the injury appears immediately on an MRI, CT scan, or ultrasound, then the defense will argue, and likely successfully and correctly, the injury pre dated the time of birth.

Meconium staining (evidence of the baby's first bowel movement and resultant feces while still in the womb), if it appears, for example, in the amniotic fluid, is indicative of fetal distress during labor and can be indicative of fetal distress at the time of birth. The level of fetal distress typically present with meconium staining is not adequate to explain, however, brain damage. Thus, even if the meconium staining occurred several hours before birth, a birth-related brain injury from hypoxia and ischemia can still occur. 

In trying to determine whether a meritorious birth-related injury case is present, you also have to rule out periventricular leukomalacia (PVL). PVL is usually found with premature babies and involves damage to the baby's brain ventricles. In the presence of PVL, you have to be able to demonstrate the hypoxic and ischemic injury occurred during the perinatal period as opposed to the prenatal period. The literature supports the fact as many as half the "term" babies suffering oxygen deprivation have PVL present. 

Similarly, nucleated red blood cells (NRBCs) are red blood cells found in the bone marrow, which have not yet matured. There is no real scientific basis to support a correlation between a rise in NRBCs and the onset of brain damage. While oxygen deprivation may certainly cause a rise in NRBCs, we know that oxygen deprivation does not always cause brain injury and thus elevated NRBCs can be seen where no brain injury is present.

In Florida, we have the statutory remedy available for health care workers known as NICA (Neurological Injury Compensation Act). NICA allows those who participate in the program to avoid being sued in a court of law for damages. Instead, an administrative proceeding has been created whereby an Administrative Law Judge (ALJ) determines first if the neurological injury occurred during the birthing process. If the neurologic injury occurred during the birthing process and the health care provider is a member of NICA, then the only remedy available is through the administrative remedies under NICA. The limitations under NICA are significant compared to the damages that otherwise can be sought in a court of law.

The Florida Birth-Related Neurological Injury Compensation Act, Section 766.031-766.316, Florida Statutes, was created during an era of rapidly accelerating malpractice costs and was specifically designed to "provide compensation, on a no-fault basis, for a limited class of catastrophic injury that resulted in unusually high costs for custodial care and rehabilitation." It allegedly was designed to insure that ob-gyns were not forced out of business due to rising malpractice insurance premiums. The reality of the situation is that insurance carriers have rarely lost money because of malpractice claims. They do, however, pass on whatever costs they can to their insureds in an effort to generate profit. The situation has been no different in reference to ob-gyns. Ob-gyns have clearly been misled by the insurance industry, however, the impact has not focused solely on the increased costs to the involved physicians.

NICA has not resulted in saving physicians significant monies related to paid insurance premiums. At the same time, NICA has resulted in dramatically reducing the recovery for a brain-injured infant and his or her family members.

Under NICA, a "birth-related neurological injury means an injury to the brain or spinal cord of a live infant weighing at least 2,500 grams . . . at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." This definition applies only to live births and does not include disability or death caused by genetic or congenital abnormalities.

If the baby's injuries are found to be compensable, NICA provides a recovery for as much as $100,000.00, in damages to the parents, plus actual expenses for medically reasonable bills related to the baby's medical care, rehabilitation, training, and custodial care. Excluded from the list of covered expenses are various payments made to the injured claimant, such as those received from the government, various health care plans, or insurance policies. NICA also provides for the recovery of attorney's fees on behalf of the injured claimant. It is a system similar to the workers' compensation system.

In order to utilize the restrictive terms of NICA, the health care provider must provide "notice" to the patient indicating the health care provider is a participant in NICA. This notice issue is very important and critical to determining whether the injured claimant is restricted to the administrative proceeding under NICA or will be able to pursue a claim in a court of law. The notice must be given pre-delivery within a reasonable time in advance of the required obstetrical services. The circumstances related to the amount of time that must be given pre-delivery are decided on a case-by-case basis. Regardless of the scenario, we will put forth the effort necessary to assist in any way we can. Navigating the process, whether through a court of law or through the administrative proceeding related to NICA, is complicated and requires significant attention to detail.

If you have any questions, do not hesitate to contact us and discuss your situation. We are here to help.

Allen & Murphy. determined. focused. fearless.

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