THE BIRTH-INJURED INFANT
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
The careless use of diagnoses such as cerebral palsy or anoxic birth injury has
exacerbated the problem of obstetric malpractice litigation. 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
Pregnancy-Induced Hypertension (PIH)
Premature Rupture of the Membranes (PROM)
Pre-term Delivery (prior to 36 weeks)
Post-term Delivery (4q weeks or beyond)
Poor Previous Obstetrical History
Intrauterine Growth Retardation (IUGR)
Transfer to Neonatal Intensive Care Unit
Ominous Fetal Heart Tracing
Presence of Meconium
Apgar Score Below 5 at 1 Minute, or Below
Abnormal Appearance of Placenta or Cord.
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.
ACOG Technical Bulletin 163: Fetal
and Neonatal Neurologic Injury. January 1992.
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.