Tennessee Medical Malpractice Law Blog

Scientists have reported  that "two proteins secreted by the placenta may be responsible for virtually all cases of preeclampsia, a severe complication of pregnancy that can be fatal to a mother or her baby."  There is hope that this knowledge will lead to both a more timely diagnosis and an effective treatment of the condition, which is responsible for 15% of the maternal deaths each year. 

This article explains that 270,000 women suffer from preeclampsia each year in the United States.  "Usually diagnosed late in pregnancy, the disorder is characterized by sharp increases in blood pressure, swelling and proteins in the urine. It can progress to eclampsia, which produces seizures and often fatal complications of the liver, kidneys, lungs, blood and nervous system."

The results of the study can be found in the New England Journal of Medicine.  (The link is to an abstract of the article; registration required.)

John Day has a post on how the Seaton hospitals have reduced birth trauma injuries at www.Dayontorts.com

Forceps and vacuum extractors are commonly used to assist in the delivery of neonates. A 2005 article in the Obstetrics and Gynecology journal compared outcomes of patients who underwent these procedures and it was determined that births assisted with vacuum extraction were more often associated with cephalohematoma and shoulder dystocia whereas forceps deliveries were more often associated with maternal third and fourth degree perineal lacerations. Click here to see the journal article abstract. The American College of Obstetricians and Gynecologists has put out Technical and Practice Bulletins regarding these operative delivery techniques. To help in locating these bulletins, here are abstracts for ACOG Technical Bulletin number 196 and the committee opinion number 208. Additionally, you might want to review ACOG Practice Bulletin number 17.

Apgar scores are used to evaluate a newborn's condition following birth, and the scoring system helps the medical providers determine if additional care is needed. When evaluating the baby, the apgar score takes into consideration the baby's color, heartrate, respirations, response, and muscle tone. The score is usually given twice, at one minute and at five minutes after delivery. At times, a third apgar score is given at ten minutes following delivery. The National Center for Emergency Medicine Informatics website has a tool where you can calculate apgar scores. Check it out here.

The Ohio Supreme Court has allowed recovery of costs of pregnancy and birth-related expenses of an unhealthy child born following negligent genetic counseling or a negligent failure to diagnose a fetal defect or disease. Although the decision is nominally for the plaintiff, the right given in a hollow one because, all things considered, the birth-related expenses will be relatively small and the more significant expenses - the extra costs of raising a disabled child - cannot be recovered.

The case is what is known as a "wrongful birth" case; i.e. one in which "the parents of an unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fetal defect or disease bring suit for the costs of having to raise and care for an impaired child, arguing that they were wrongfully deprived of the ability to avoid or terminate a pregnancy to prevent the birth of a child with the defect or disease.”

However, Court denied the claims of the parents for other economic losses and for emotional damages claimed by the parents because of having to raise an impaired child, saying that they were not a proximate cause of the defendant's negligence. More specifically, "consequential noneconomic damages require a valuation of being versus nonbeing. A judge or jury would be asked to weigh the emotional and physical tolls resulting from raising and supporting a disabled child versus not having a child at all. No such damages are recoverable."

The Court made it clear that it was not passing judgment on abortion. It said: "It is important to note that the issue of whether abortion should be considered a proper course of treatment during prenatal care is not before this court. Regardless of the multitude of moral, religious, policy, and legal arguments inherent in the abortion debate, the holding today merely recognizes that medical negligence during prenatal care that impacts the parents’ ability to decide whether to continue the pregnancy may be actionable."

The case is Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc.; read it here.

Look at my entry at www.dayontorts.com to read about the Tennessee Supreme Court's decision to allow the 3-year medical malpractice statute of repose to children.

One of the most difficult aspects of any case is determining what, if any, expert witnesses are needed. This is particularly true with birth trauma cases where an infant suffers brain damage or even death as a result of asphyxiation during delivery. In those cases, there are numerous medical specialists with whom you may want to consult. For example, you will probably need an obsterician, and perhaps an obstetrical nurse, to testify regarding standard of care. On the issues of causation and damages you may want to consult with a neonatologist, perinatologist, a placental pathologist, a neurologist, and a neuroradiologist. You may also need an expert to discuss a life care plan for the plaintiff. Finally, you may want to consult an economist to discuss loss of anticipated earnings. I am not saying that you will necessarily require experts in all of these specialties in your particular case. I am simply trying to give you an idea of the types of specialties to turn to for help. I also want to remind you that consultation with these experts will be an expensive and time-consuming process, so start early.

When you are investigating a fetal injury or fetal death case, it is important that you review the fetal monitoring strips. As I mentioned in a previous entry, the fetal monitoring strips provide valuable information such as how the fetus was tolerating labor and delivery. We have found that typically hospitals do not insert the fetal strips into the mother's main hospital chart. Therefore, remember to specifically request the fetal monitoring strips when requesting a copy of the complete chart.

When a baby is delivered, the placenta is delivered thereafter, and it is typically the physician’s job to visually inspect the placenta, including the umbilical cord, for size, shape, surface appearance, etc. In most instances, the physician will then decide whether a pathological examination of the placenta is necessary. Things such as abnormal appearance, suspected infection, and poor pregnancy outcome may lead the physician to request further placental examination.

Complications during pregnancy, such as infection, maternal disease, and decreased blood flow, can lead to a change in the placenta and the way it functions. Pathological examination of a placenta may provide insight as to events that occurred during the pregnancy and may be helpful in determining the cause of a birth injury and/or poor fetal outcome. The pathologist will perform a gross examination of the placenta and also a microscopic examination.

If you are working on a birth injury case and/or one regarding poor fetal outcome, a pathological examination of the placenta may have been performed at the time of delivery. If placental tissue blocks are available, you may decide that you would like slides re-cut so that you can have them evaluated by a placental pathologist.

For those of us who are not physicians, pathology reports concerning examinations of placentas are extremely difficult to understand. A great resource to use when reviewing a placental pathology report is a book written by Richard L. Naeye entitled Disorders of the Placenta, Fetus, and Neonate: Diagnosis and Clinical Significance.

Here is an article written by a defense lawyer on how to defend brachial plexus injury cases.

This is a helpful article to review before accepting one of these cases and before taking the deposition of the defendant doctor.

The highest court of New York has rejected in part the medical negligence claim of a woman who sued a doctor and others for emotional distress but permitted the claim of the child to go forward.

The mother claimed that the doctor told her that the seven week old fetus she was carrying in utero would likely be harmed by fibroid tumors in her uterous and recommended that she terminate the pregnancy. The drug methotrexate was given to accomplish that result. The drug was administered, and the woman thought that the pregnancy was terminated, but later discovered she was 28-weeks pregnant. She alleged that the dose of methotrexate that she was given was too small to terminate the pregnancy. She was told that the drug administration put the baby at risk for harm, but she decided not to have a late-term, out-of-state abortion.

The baby was born severly injured. Suit was filed on behalf of the child; the mother also filed suit for emotional distress. The Court of Appeals held that the mother could not assert a claim for emotional distress arising out of the birth the impaired child but could assert a claim for any injuries independent of the birth of the child. She was granted leave to amend her complaint to plead accordingly.

Interestingly, the child's claim was allowed to proceed despite the suggestion that it was a "wrongful life" claim. Such claims may not be pursued in New York (or in Tennessee) but the court held that the claims were plead to assert that the original advice about the need to terminate the pregnacy was in error and that error lead to methotrexate-induced injury.

The Supreme Court of the State of Minnesota has held that a physician has an affirmative duty to inform a child's biological parents about the risks posed by their child's genetic problem.

The plaintiff's child was born with an inheritable form of mental retardation known as "Fragile X." The parents were told that the condition was probably not genetic and the child's doctors did not do full genetic testing on the child. The parents then had a second child born with the same condition. Later testing revealed that both children and the parents were carriers of Fragile X.