By: Ronald M. Zakarin, Esq.
For most expectant mothers, after nine months of pregnancy, the birth of a child is an exciting, anticipated, and welcomed event. Most often, the birth is uneventful, and the child is brought home healthy to begin life. There are unfortunately occasions where nature goes awry, and problems develop with the fetus which are not apparent until after birth. On these rare occasions, the family learns to deal with the child’s disabilities, and they adjust their lifestyle accordingly. However, when an otherwise normal fetus sustains permanent physical damage as a result of one or more members of the health care teams’ negligence, the results can be catastrophic and life altering, both for the child and the child’s family.
Routinely, expectant mothers are admitted to the hospital to give birth. Typically, fetal monitoring is commenced to track the baby’s progress throughout the labor and birth. The electronic fetal heart rate monitor is a device that allows the doctors and nurses to assess the well‑being of the baby by looking at the fetal heart rate for signs that the babies are reactive. When the health care providers see what are called accelerations, short rises in the heart rate, this is a sign that the fetal brain is functioning properly. Generally speaking, a normal heart rate coupled with fetal movement is considered a reassuring sign of what is termed central nervous system (CNS) integrity, or a normal brain. When problems arise, the nurses and/or physicians caring for the mother should be alerted that the baby is experiencing some difficulty, and measures must be undertaken expeditiously to resolve the problem.
In recent years, the obstetrical community has discarded the term fetal distress, and replaced it with non‑reassuring findings. The basis for this change should be obvious. Nonetheless, what the patient needs to understand is that the fetus requires adequate oxygenation from the mother during the birthing process to remain viable. When there is some obstacle restricting the flow of oxygen to the unborn child, usually this will be transmitted to the health care team via the fetal heart rate monitor. If appropriate intervention is performed, the stress on the fetus can often times be resolved without the necessity of emergency surgery, and prior to any permanent damage to the baby.
When things go awry during the labor and delivery process, the fetal heart rate monitor is a means that enables the baby to cry out that it is having a problem and needs some assistance. Unfortunately, the baby’s cry for help is not always heeded by the health care team. Whether due to a false sense of complacency, as most labors and deliveries proceed without incident, or just plain neglect, there are rare instances where a perfectly healthy fetus sustains permanent and irreparable damage during the labor and delivery process. The tragedy is that in these circumstances the injury could have been avoided through simple attentiveness and appropriate action by the health care team.
It is axiomatic that parents faced with the reality of learning that their child was born with some catastrophic injury will be better capable of dealing with and raising a disabled child with the knowledge that the child’s condition was due to an act of nature as opposed to medical negligence. However, as a corollary, when parents learn that their child will be facing a lifetime of obstacles, which could have been prevented through the exercise of sound, reasonable medicine, this is a reality difficult to handle. The cost of care to a family of a severely brain injured child can run into the millions of dollars.
How can a determination be made with regard to the cause of a child’s disability? While there may be no easy answer to this question, often times science will allow for an evaluation of the baby’s health on admission to the hospital, a review of the course of labor, and a determination may be made within a reasonable degree of medical probability as to the cause of injury. In those instances where it is ascertained that a child was born with a congenital or developmental problem beyond the control of the medical team, the parents can move on with their lives with the peace of mind knowing that nothing they, nor their health care team did was a precipitating cause of the child’s disability. Alternatively, if the injury to the child could have been avoided through the exercise of reasonable medical care, given the magnitude of the cost of care for the child over his or her lifetime, and the ancillary effect on the entire family, monetary damages should be sought. The recovery of damages will assist the family in providing the best quality of life for that child.
What recourse is available to parents in this situation? There is no simple answer. Under certain circumstances, the parents ability to collect damages may be limited by statute. In Florida, for example, a parents’ right to pursue a claim for medical negligence for birth related injuries is governed by the Florida Birth Related Neurological Injury Compensation Association, also known as NICA (F.S. 766.301‑766.316). The difficulty for parents constrained by these statutory provisions is that the damages available to provide for the disabled child are limited. However, exceptions to the applicability of this act do exist, and parents should be cognizant of these exceptions, and explore all avenues of recovery.
If you, or somebody you know has had the misfortune of giving birth to a disabled child, and there is a question regarding the cause of the child’s problem, contact me for a free consultation.