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There are few events in life that can approach the wrenching hurt of watching a baby or child try to live in the world with brain damage or severe physical injury or disability. Fortunately we live in a time where knowledge and equipment exists that help medical professionals to anticipate, predict and plan for the potential of an abnormal birth. When a doctor pays close attention and remains plugged in to the labor and birthing process, available and prepared to act and react, tragedy can often be avoided.
In terms of medical malpractice litigation, the defense of a doctor most often revolves around determining whether the apparent abnormality has a benign or easy explanation. When it does not, the defense often argues that there was a sudden emergency that could not be anticipated or planned for. The medical malpractice attorney representing the family of the injured baby must know (a) the questions that need asking; (b) the answers that demonstrate that the failure to respond was excusable under the law and (c) how to separate the excusable failure to respond from defense manipulations of what was happening that seek to excuse wrongful inaction and the resulting tragic injury.
The investigation by the medical malpractice attorney for the family must look to prove that the unanticipated and unprepared for emergency should have been both anticipated and prepared for, and should not have been allowed to degenerate into a predictable crisis. Some of the relevant investigation questions are: Do fetal monitor tracings that appear temporarily abnormal have a ready and reoccurring explanation? Do they return to normal in time so that there is a firm reason to accept they were the result of temporary positioning of the fetus? I
Is there something in the mother's history or in the labor itself, that raised the risk of fetal compromise or danger that required anticipation and preparation by the doctor?
If labor is not progressing, is there an increasing risk of compromise of the cord that nourishes the fetus until birth and the baby's ability to live separately from the mother? Has there been meconium staining, sometimes a sign of fetal distress and an indication that an earlier birth is necessary?
Was there some practical reason that would interfere with the need for a quick or emergent delivery? Did the doctor and hospital arrange to be ready for that potential, so that precious time was not wasted if a quick or emergency delivery in fact became necessary?
Did the delivery professionals properly anticipate and plan for the potential of a problem birth for the patient who had a problem labor?
The above are only a few questions that arise in brain damaged baby situations or with babies born with cerebral palsy. Investigation frequently boils down to figuring out what the delivery staff should have known and when could they and should they have known, appreciated and reacted, to avoid or minimize that developing risk to the baby.
The medical malpractice attorney for the family must ascertain whether the excuses of the doctor, after the fact, are simply the product of after the injury research found in a textbook or a witness hired to provide excuses.
The medical malpractice attorney for the family must determine whether or not the birthing professionals actually looked for and connected the dots prior to and at the time of the birth or did they, rather, bend over backwards after the injury to the baby to come up with benign, excusing explanations, because they failed to appreciate the pattern or collection of events that evidenced the baby's increased need for protective action and caution. Further, it must be ascertained whether the doctor made primary the avoidance of unnecessary risk to the baby, that a more prompt delivery, recognizing the risk potential, would have provided.
The battle in this kind of a medical malpractice case is one between what the doctor knew or should have appreciated versus the many excuses and experts who are available to give excessive weight to the existence of after the fact possible excuses and explanations for delayed reaction, rather than timely anticipation and action.
About the Author
Attorney Andrew Rockman is a partner who has been representing injured plaintiffs in medical malpractice cases in New Jersey for more than thirty years. He can be reached at 609 520 0900 or arockman@pralaw.com. Or visit http://www.pralaw.com
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