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 litigation.
The careless use of diagnoses such as cerebral palsy or anoxic birth injury has exacerbated the problem of obstetric malpractice litigation. [ACOG Technical Bulletin 163. Fetal and Neonatal Neurologic Injury. January 1992.] 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 example has been the development of 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% 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.
In cases of suspected birth injury, the entire placenta and umbilical cord should be weighed 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.