For many children and adults there is no connection between their cerebral palsy and the circumstances of their birth. For others there is a direct causal link, and for them, their injury may have been avoidable.
The type of birth injury which is commonly the subject of clinical negligence claims is cerebral palsy due to Hypoxic Ischaemic Encephalopathy (or “HIE”).
HIE occurs where the baby’s brain is starved of oxygen to a damaging extent. The hypoxia can be over hours or days, in which case it is called chronic or prolonged partial hypoxia. In other cases the hypoxia is sudden and near complete and this is termed acute profound asphyxia. Sometimes there is a combination of the two. The HIE is typically categorised as ‘mild’, ‘moderate’ or ‘severe’.
When I take details from a parent about whether their child may have a claim, as well as hearing the “birth story”, I will typically ask about the condition of the baby at birth as there are various indicators of Hypoxic Ischaemic Encephalopathy. Relevant questions include:
- Was the baby breathing a birth? If not, how easily and quickly was the baby resuscitated? Was intubation needed?
- What were the Apgar scores, not just at one minute after birth, but at five minutes? These are the scores given to record the newborn baby’s condition and include colour, heart rate, first breath and movement. The baby who has suffered damaging levels of hypoxia will typically have poor scores at five minutes of age, as well as at one minute of age.
- What were the cord blood gases? The blood from the umbilical cord may be tested and the pH levels determined. The more acidotic the blood, the higher the levels of hypoxia.
- Did the baby need to go to the SCBU? Invariably the hypoxic baby who suffers a brain injury will need ongoing support after delivery.
- Did the baby suffer fitting? If so, for how long and how soon after the birth? The timing of fitting can be roughly correlated to the timing of hypoxic injury.
- Was there evidence of organ failure? Commonly organ function is also impaired in the baby who has suffered damaging levels of hypoxia. By the time of discharge from hospital, those issues have typically resolved.
- Has a brain MRI scan been carried out and was it abnormal? If so, what did this show?
These are some of the indicators of damaging levels of hypoxia in the newborn. As the baby matures, milestones may be delayed or not met and eventually a diagnosis of cerebral palsy may be made.
The question as to whether there will be a successful claim, will rest on being able to prove that the damaging period of hypoxia should have been avoided. We look at whether inappropriate care was given during labour and delivery, and/or during the antenatal period.
There are a number of ways in which the baby can exhibit signs of compromise, both during or prior to labour. When investigating a claim we examine whether any such signs were unreasonably missed. We also gather expert evidence on the underlying cause of the cerebral palsy and we correlate the obstetric and paediatric neurology evidence.
Typical signs of fetal compromise prior to birth include:
- An abnormal heart rate pattern as shown on a Cardiotocographic trace (CTG) or as listened and noted down by a midwife (“auscultated”). If labour has started, how does the baby’s heart respond during contractions? What is the baby’s heart rate between contractions? Failure to interpret a CTG trace properly by both midwives and doctors is one of the most common allegations of negligence in successful claims for cerebral palsy.
- Meconium staining. This is the waste passed by the “stressed” baby into the amniotic fluid. It may leak out of the mother or be apparent during a vaginal examination.
- Reduced fetal movement. This may be a sign that the baby has been or is being deprived of oxygen.
- Abnormal fetal scalp blood test results. What were the pH levels and were they appropriately responded to?
Typical scenarios may involve a protracted labour which culminates in a caesarean section or, perhaps more likely, a protracted labour where there is an unassisted delivery. There can also be issues surrounding induction of labour, as well as speed of response to a medical emergency. The question of appropriate care in the antenatal period must also be considered and whether a decision should have been made to deliver the baby before the due date. If so, the damaging events of labour and delivery may have been avoided altogether.
Key information such as the nature of the CTG trace and the results of the tests carried out on the baby at birth may well not be known without obtaining the medical records. Many completely normal labours are protracted and difficult and, for this reason, not all parents make a link, perhaps especially in times gone by, between what happened during labour and delivery, and the condition of their cerebral palsy child.
In some cases, even if parents do make a link, it is only to dismiss what happened as “one of those things” and the question of fault may not be considered at all. Only many years later may such parents ask themselves, should the birth have been handled differently and should my child’s injury have been avoided?