BIRTH INJURIES: MERIT REVIEW AND CASE DEVELOPMENT

by Carrie Barber Birth Injuries
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In this blog, I’ll review the most common types of birth injuries.  Additionally, I’ll provide fundamental information regarding elements to consider when reviewing a birth injury claim for merit.  Lastly, I’ll identify commonly missed requests for production and explain the value these missed requests can add to case development.  

What is a Birth Injury: A birth injury is identified as an impairment of the neonate’s body function or structure due to an adverse event that occurred at birth (NIH, 2022).

Most Common Types of Birth Injury Cases:

Hypoxic Ischemic Encephalopathy (HIE):  Neonatal encephalopathy is a syndrome of disturbed neurologic function in the earliest days of life in an infant born at or beyond 35 weeks gestation, manifested by subnormal level of consciousness or seizures, and often accompanied by difficulty with initiating or maintaining respirations, depression of tone and reflexes (ACOG, AAP, 2019).  When evaluating an alleged HIE case, it’s crucial to identify if there was an acute hypoxic ischemia event immediately before or during labor & delivery.  Some examples of an acute hypoxic ischemia event include, but are not limited to:

  • Uterine rupture
  • Placental abruption
  • Umbilical cord prolapse

Causation: When reviewing an alleged HIE case for causation, maternal and genetic risk factors must be considered.  Some examples of maternal risk factors include, but are not limited to, thyroid disease, factor V Leiden, and antiphospholipid syndrome.  It’s equally important to rule out genetic disorders that mimic neonatal encephalopathy.  This review is supported by reviewing the medical history of the parents, as well as reviewing the newborn (as well as previous births) admission assessment, progress notes, and discharge summary to identify the presence or absence of dysmorphic features and other clinically relevant findings such as poor feedings, prolonged hyperbilirubinemia, and metabolic abnormalities all of which may suggest a genetic cause for neonatal encephalopathy.   

Neonatal Brachial Plexus Palsy (NBPP):  NBPP is a weakness or paralyzed upper extremity, with passive range of motion greater than active (ACOG, 2014).   

Causation: When reviewing an alleged NBPP case, it’s important to know the risk factors for NBPP as well as current standards of care.  Risk factors include, but are not limited to:

  • Fetal malposition (example: occiput posterior rather than occiput anterior)
  • Labor induction
  • Labor abnormalities (example: prolonged second stage of labor)
  • Operative vaginal delivery (example: vacuum or forceps assisted delivery)
  • Fetal macrosomia (example: birth weight > 4,500 gm regardless of gestational age)
  • Shoulder dystocia

When reviewing a NBPP case for merit and/or during case development, the following questions will help guide your review and theory:

  • Was an elective cesarean delivery considered and offered for the patient without diabetes who carried a fetus with suspected macrosomia with an estimated fetal weight of at least 5,000 grams and for women with diabetes whose fetus was estimated to weigh at least 4,500 grams?
  • Was the Oxytocin turned off at the time the shoulder dystocia was identified?
  • Were non-rotational maneuvers implemented prior to rotational maneuvers?
  • Were maternal pushing forces discontinued when maneuvers were employed?
  • Was fundal pressure applied?

Intrauterine Fetal Demise (IUFD): IUFD is a fetal death that occurs at or greater than 20 weeks gestation or at a birth weight greater than or equal to 350 grams (NIH, 2022).

Causation: When reviewing a fetal death case, risk factors must be considered as there are maternal, fetal, and placental risk factors.  Examples of risk factors include, but are not limited to:

  • Diabetes
  • Obesity
  • Advanced maternal age (>35 years old at the time of delivery)
  • Substance misuse
  • Fetal anemia
  • Placental abnormalities

Neonatal Death: Neonatal death is identified as death among live births during the first 28 completed days of life (NIH, 2021).

Causation: When reviewing a neonatal death case, you must be aware of the leading causes of neonatal death.  Some examples include, but are not limited to:

  • Preterm birth complications
  • Intrapartum related complications (neonatal encephalopathy from birth asphyxia/trauma)
  • Neonatal sepsis and other neonatal infections including pneumonia and tetanus

Requests for Production: When reviewing a birth injury case for merit and during the process of case development, it’s crucial to evaluate all relevant medical records including past obstetrical records, past neonatal admission records as well as all outpatient and inpatient electronic fetal monitor (EFM) tracings.  Past obstetrical histories, and previous newborn assessments provide valuable information specific to maternal, and fetal risk factors as well as relevant neonatal assessment findings that could indicate a genetic or metabolic cause to the injury.  Additionally, review of all (inpatient and outpatient) EFM tracings and other forms of fetal surveillance (example: ultrasounds, and biophysical profiles) supports the identification of fetal heart rate and clinical trends, changes, and abnormalities indicative of a compromised fetus.  Review of the intrapartum (labor) EFM tracing, multidisciplinary strip interpretation, intrauterine resuscitative measures employed, and multidisciplinary documentation supports identification of compliance with the standardized 2008 National Institute of Child Health and Human Development (NICHD) nomenclature specific to fetal heart rate strip interpretation.  The 2008 NICHD standardized, and quantitative nomenclature should be used by the labor team to describe intrapartum fetal heart rate tracings in order to reduce miscommunication among providers caring for the laboring patient, while promoting consistent, evidence-based interventions to fetal heart rate patterns.

  • Medical Staff By-Laws, Rules and Regulations: When compiling requests for production, don’t over-look the value in reviewing the organization’s medical staff by-laws, as well as the medical staff rules and regulations.  Relevant content can be gleaned from this review that can be applied to case development.  By-Laws: The organization’s medical staff by-laws focus on medical staff (including mid-level providers: midwives, nurse practitioners, physician assistants, nurse anesthetist) privileging, (re)credentialing, professional conduct/corrective action, organizational clinical departments, and committees. Rules and Regulations: The organization’s medical staff rules and regulations focus on requirements of the medical staff.  Some examples include admission/discharge of patients, medical care responsibility, discharge criterion, oversight of adjunct staff (mid-level providers as described above), consultation process, code of conduct, consent forms, orders, practitioner accessibility / response time, continuing medical education, requirements for: health and physical, medical records, progress notes, operative reports, obstetrical records, and discharge summaries.

When reviewing a birth injury case, consider the above elements of causation, as well as suggested requests for production in an effort to strengthen your review.  Lastly, collaborate with medical legal consultants who specialize in birth injury as evidenced by their education, knowledge, training and experience.

References

  1. ACOG, AAP, 2019. Neonatal Encephalopathy and Neurologic Outcome, 2nd ed.
  2. ACOG, 2014. Neonatal Brachial Plexus Palsy
  3. National Institute of Health, 2021. Birth Trauma
  4. National Institute of Health, 2021. Neonatal Mortality
  5. National Institute of Health, 2022. Intrauterine Fetal Demise

P.S. Comment and Share: What do you identify as the most challenging aspect of developing birth injury cases?