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The first priority with a potential birth injury is to manage the infant's medical condition. Under no circumstances should concerns about possible litigation be allowed to interfere with the infant's medical care. The second priority is to make a definitive diagnosis. Determining what caused the problem may guide the treatment of the child and may help avoid similar problems in future children. It is also critical to the defense of any subsequent litigation.

The careless use of diagnoses such as cerebral palsy or anoxic birth injury has exacerbated the problem of obstetric malpractice litigation.[205] The pediatrician and the obstetrician should work together to obtain a good etiologic diagnosis for the child. There is a general assumption among laypersons and plaintiffs' attorneys that all nonspecific central nervous system damage is due to birth hypoxia and is therefore the physician's fault. Obstetricians have fostered this belief by failing to investigate the underlying causes of seeming birth injuries.

One promising avenue of investigation is placental analysis. Historically physicians have either discarded placentas or sold them to drug companies. Only recently have obstetricians realized that the placenta is an invaluable research tool and forensic pathology specimen. Placental research is documenting chronic placental insufficiency diseases that may account for 50 percent of what have traditionally been termed birth injuries. Placental pathology studies showing placental insufficiency have been used to defend physicians from charges of negligently injuring a child at birth.

Placental examination should be considered whenever these risk factors are present:


Diabetes Mellitus

Pregnancy-Induced Hypertension (PIH)

Premature Rupture of the Membranes (PROM)

Pre-term Delivery (prior to 36 weeks)

Post-term Delivery (4q weeks or beyond)

Unexplained Fever

Poor Previous Obstetrical History



Neonatal Death

Multiple Gestation

Intrauterine Growth Retardation (IUGR)

Congenital Anomalies

Erythroblastosis Fetalis

Transfer to Neonatal Intensive Care Unit

Ominous Fetal Heart Tracing

Presence of Meconium

Apgar Score Below 5 at 1 Minute, or Below

Placental/Umbilical Cord


Abruptio Placentae

Vasa Previa

Placenta Previa

Abnormal Calcification

Abnormal Appearance of Placenta or Cord.[206]

In cases of suspected birth injury, the entire placenta and umbilical cord should be weighted and appropriately preserved. The placenta may be stored until it is determined that the baby does not have any residual damage. If the baby is injured, the placenta should be examined by a pathologist who is skilled in placental pathology. This is not a routine skill and must be specifically sought out. If an unskilled pathologist records that the placenta looks normal, this opinion will only bolster the plaintiff's case. Since these examinations are expensive and usually cannot be billed to the patient, physicians and their malpractice insurance companies must cooperate to pay for the pathologist's services.

[205]ACOG Technical Bulletin 163: Fetal and Neonatal Neurologic Injury. January 1992.

[206]Ward CJ: The case for placental examination. The Digest: A Medical Liability and Risk Management News Letter (St. Paul Fire and Insurance Company, Fall) 1989:1.

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