Everything You & Your Family Need To Know About Your Birth Injury Case

How a Birth Injury Attorney Helps

An experienced birth injury attorney is essential in determining whether you have a viable birth injury malpractice claim. 

What Is A Birth Injury?

The term “birth injury” is most often used to describe birth outcomes that should not have occurred if the mother and baby had received proper medical care. It is typically a preventable injury that your child suffers during labor and delivery.

What Causes Birth Injury?

There are two common types of avoidable birth injury: Physical Trauma and Hypoxic/Anoxic Brain Damage.

Physical Trauma

A common birth injury resulting from physical trauma is Erb’s palsy. Erb’s palsy is caused by nerve damage to the baby’s neck and arm during a difficult delivery. It usually happens when the doctor and/or nurses improperly respond to a situation where the baby’s shoulder is stuck while traveling through the birth canal. This is also called shoulder dystocia. Infants with Erb’s palsy usually have a weak or useless arm that is immediately noticeable after birth.

Another physical trauma that may cause brain injury is the improper use of instruments such as a vacuum extractor or forceps when applied to the baby’s head.

Hypoxic / Anoxic Brain Damage

Hypoxic/Anoxic brain injuries occur in a number of different ways, but the basic cause of injury is a lack of oxygen to the baby’s brain. Without enough oxygen, the baby’s brain cells die. It takes time for hypoxic/anoxic brain injuries to be diagnosed because the changes that occur to the brain are not immediately visible. Typically, after several sonograms, CT scans, and MRI’s your doctor will diagnose your child as suffering from cerebral palsy. As your child ages, you will notice your baby failing to reach and/or properly advance through the developmental milestones such as rolling over, sitting up, crawling, walking, self-feeding, and talking.

Important First Steps After a Birth Injury

Most birth injury cases start with a difficult delivery. You may notice labor took longer than expected. Sometimes there is a lot of bleeding before the baby is born. The mom pushes and pushes during delivery but the baby seems stuck. Often, after hours of labor, mom is rushed back to the operating room and the baby is delivered by cesarean section.

After your baby is born, if any medical problems are suspected, he or she will be taken to the neonatal intensive care unit (the “NIC-U”). Oftentimes, the medical staff will tell you it is too early for them to determine what is wrong, or what is going to happen. If a brain injury is suspected, your baby may be put into something called a “cooling protocol” – a treatment designed to lower the baby’s body temperature in an effort to decrease the damage to the baby’s brain and nerve cells.

What You Should Do Now

1. Learn all you can about your child’s diagnosis
2. Follow the advice of your child’s pediatrician and other medical providers
3. Document everything
4. Take photographs
5. Talk to an experienced birth injury attorney

Brain-Related Injuries

The leading brain-related birth injury is Cerebral Palsy (CP). Cerebral is the medical term usually used to describe the brain. Palsy is the medical term used to describe a type of paralysis. In children with CP, parts of the brain that control muscle movement have been damaged by lack of oxygen.

Therefore, the brain can not send and receive the necessary signals for normal muscle movement and body control. Because all body functions depend in some way on muscle movement, children with CP can also have difficulty eating, swallowing, breathing, and speaking. Children with CP can also have cognitive (thought and intelligence) disabilities.

There are several causes of CP. The two causes most related to birth injury are infections and oxygen deprivation. Many times, the brain injuries caused by oxygen deprivation or infection could have been avoided if the physician had used the correct preventative measures. For example, if a physician fails to monitor fetal distress and take the appropriate actions, the infant may develop CP. Other instances include:

• Failure to monitor, detect, and treat maternal infections
• Failure to plan and carry out an emergency C-section
• Failure to identify and treat a prolapsed umbilical cord
• Failure to use birth-assisting tools correctly

In order to understand what doctors and lawyers mean when discussing an infant brain injury, it is important to be familiar with a few key terms:

HYPOXIC ISCHEMIC ENCEPHALOPATHY

Hypoxic Ischemic Encephalopathy (HIE) is a brain injury that occurs from too little oxygen reaching the baby’s brain. Hypoxia is a medical term for too little oxygen in the blood stream. Ischemia is the medical term for cell and tissue damage caused by too little oxygen. Encephalopathy is the medical term used to describe disease, damage or malfunction of the brain.

When doctors and lawyers speak of HIE, they are talking about brain damage that occurred because the baby’s brain received too little oxygen for too long. Often, these babies are diagnosed with Cerebral Palsy.

ANOXIA

This term is used to describe an absence of oxygen to the brain. Think in terms of a garden hose. Hypoxia occurs when the water is turned down. Anoxia occurs when the water is turned off. Children who suffer an anoxic event often have a severe form of cerebral palsy because more significant brain cell death has occurred.

HEMORRHAGE

This term is used to describe bleeding or blood leaking outside of the blood vessels. There are several circumstances related to birth injury in which a hemorrhage is relevant. While inside the womb, baby and mom share one circulatory system. Mom’s blood gets to her baby from blood vessels between her uterus and the placenta which connects to the baby through the umbilical cord. If there is a disruption anywhere in the system, (a hemorrhage) the baby will receive less blood. If this disruption is too severe, or lasts too long, the baby can suffer injury from lack of blood supply to her brain and other vital organs.

UMBILICAL CORD COMPRESSION

A disruption in blood flow through the umbilical cord can occur from the cord being kinked or squeezed. This stops or blocks blood flow through the umbilical cord leaving the baby with too little blood supply to her brain and vital organs. If the cord is compressed or kinked for too long, this damage can be permanent.

OLIGOHYDRAMNIOS

This is the medical term for low amniotic fluid. The amniotic fluid is the “water” that surrounds the baby in his mother’s uterus. If there isn’t enough fluid, several problems can occur, including cord compression from the baby’s own weight pressing down on the umbilical cord.

PLACENTAL ABRUPTION

The placenta is the organ responsible for ensuring blood and nutrients get from mom to baby while baby is growing inside the uterus. The placenta is attached to the inner wall of the uterus through a complex network of blood vessels. At times, part of the placenta can tear away from the uterine wall. This is called an “abruption”, and can disrupt the proper flow of blood and nutrients to the baby.

PLACENTAL INSUFFICIENCY

This occurs when the placenta is not delivering is a complication of pregnancy when the placenta is unable to deliver an adequate supply of nutrients and oxygen to the baby.

UTERINE RUPTURE

The term “uterine rupture” refers to a tear in the uterine wall during pregnancy. It is a rare complication, most associated with women who have had a prior c-section. As the baby grows inside the womb, the uterus stretches. Sometimes, instead of stretching along with the other uterine tissue, the scar tissue from a prior c-section can tear, creating a dangerous situation for both the mother and baby. The tear most often occurs at the end of the pregnancy, when the uterine wall experiences the stresses of labor. Because of this, many women who have had a c-section will choose to forgo a vaginal birth, (also called a “V-BACK”) and opt instead to deliver all of their future babies by c-section.

The symptoms most associated with uterine rupture are:

• Vaginal bleeding
• Sharp pain between contractions
• Contractions that slow down or become less intense
• Unusual abdominal pain or tenderness
• Recession of the fetal head (baby’s head moving back up into the birth canal)
• Bulging under the pubic bone (baby’s head has protruded outside of the uterine scar)
• Sharp onset of pain at the site of the previous scar
• Uterine atony (loss of uterine muscle tone)
• Maternal tachycardia (rapid heart rate) and hypotension
• Abnormal fetal heart tones, variable decelerations
• Bradycardia (slow heart rate)

WHOLE BODY COOLING FOR BIRTH RELATED HIE

Research has concluded that the best predictor of long-term outcome following perinatal injury is the presence of newborn brain swelling. If moderate swelling is present, the risk of death is less than 10% and as many as one-third of the survivors have physical disabilities. With severe swelling, mortality is higher (as much as 60%) and many, if not all, survivors are handicapped. The benefit of whole body cooling (induced hypothermia) in newborns with post-asphyxia brain swelling has been proven in high-quality randomized controlled trials to be safe and has been adopted as standard of care at most of the large hospitals in the United States.

The aim of the cooling protocol is to reduce the newborn’s body temperature to between 33.5°C and 34.5°C within 6 hours of birth. This temperature is then maintained without interruption for 72 hours. The baby is then slowly re-warmed over a period of at least 4 hours at a rate of 0.5°C per hour until the rectal temperature reaches the desired range of 36.5-37°C.

IF YOUR BABY WAS PLACED IN A COOLING PROTOCOL AFTER BIRTH, YOU SHOULD CONTACT US IMMEDIATELY.

CHORIOAMNIONITIS

Chorioamnionitis is a medical term used to describe an infection that gets into the amniotic fluid and the sac surrounding the baby. It is caused when bacteria normally present in the vagina ascend into the uterus. The amniotic fluid and placenta — as well as the baby — can become infected.

Sepsis

Sepsis is the result of infection. It occurs when chemicals released into the bloodstream to fight the infection start to “poison” other parts of the body. Left untreated, these chemicals can damage multiple organ systems, causing them to fail.

PERIVENTRICULAR LEUKOMALACIA

Periventricular Leukomalacia (PVL) is a form of brain injury involving the white matter of the brain. Premature babies are especially at risk for developing PVL because their lungs did not have enough time to fully develop before birth. Without proper lung function, the baby cannot get enough oxygen to his brain. This causes parts of the brain to die, leaving the baby with a form of cerebral palsy.

Physical Birth Injuries

There are several types of physical injuries that can occur during birth. Many involve trauma to the skull and face from improper use of birth-assist devices like vacuum extractors or forceps. During c-section delivery, babies can be cut by the scalpel. While these injuries can be serious, they most often resolve just like any other cut or bruise.

SHOULDER DYSTOCIA

Shoulder dystocia is not a birth injury. It is a medical description of an event that occurs during the birth process. A shoulder dystocia occurs when an infant’s head and shoulders get trapped behind the mother’s pelvic bone during delivery. If a shoulder dystocia is not properly recognized and managed by the doctors, both baby and mother can be severely injured. Mother can suffer uterine rupture, and the baby may experience a collarbone fracture, cerebral palsy, a brachial plexus injury, an erb’s palsy, and in some instances, death.

BRACHIAL PLEXUS INJURY

A brachial plexus injury, also called an “Erb’s Palsy” is diagnosed when a newborn baby shows weakness or lack of movement in one or both arms. These findings are evidence of damage or injury to the nerves in the brachial plexus; the area near the baby’s neck where certain nerves leaving the spinal cord extend across the top of the baby’s shoulder and down into her arm.

An Erb’s palsy is frequently caused by something called a “shoulder dystocia” during delivery. Shoulder dystocia is the medical term doctors use to describe a baby’s shoulder geting “stuck” or “hung up” on something as she is pushed down the birth canal. Doctors are supposed to recognize this immediately, and take actions to release the baby’s shoulder. If they don’t, the forces of labor and mom’s pushing will move the baby’s body forward, but the shoulder will be stuck in place. This can cause the baby’s arm to be pulled down, away from her head. This pulling can stretch, and sometimes even tear, the nerves in the baby’s shoulder.

Nerves are the wires through which our brain sends signals to the rest of the body. If these wires are damaged or torn, the signals can’t travel through them properly. If a baby suffers a brachial plexus injury during birth, her brain will have less ability to send messages to her arm, wrist, hand, or fingers. That is why babies with an Erb’s palsy have a weak grip in one hand, or look as if their arm is paralyzed and constantly bent at the elbow.

BRACHIAL PLEXUS INJURY TREATMENT

• See your pediatrician
• See your specialists
• Follow their advice and physical therapy plan!

Treatment for an Erb’s palsy usually involves several types of specialty doctors working together. A pediatric neurologist (nerve specialist) will work with a physical therapist and an orthopedic surgeon. Their goal will be to repair the damaged nerves (if possible) and to strengthen the muscles and nerve signals around the injured area. Because babies grow develop so quickly, early treatment is critically important. Early treatment and strict adherence to physical therapy plans, including exercises the doctor will teach you to do for your baby, give the baby’s body the best chance of diminishing the long term effects of his injury.

Babies are incredibly resilient. Thus, early, proper and consistent treatment has been shown to “cure” almost 75% of Erb’s palsy symptoms by the baby’s first birthday. However, there are cases where the injury is severe enough to cause lifelong problems. Although such cases are rare, these children can face the life long challenge of having an arm that does not work properly. Difficulty with performing daily tasks may lead to anger and frustration. Limited use of the arm can make participation in sports and other activities hard or impossible. As you can imagine, this can cause the child to suffer psychologically and emotionally. Counseling by a child psychologist can help with these real and important issues.

ERB’S PALSY

Erb’s palsy is a term used by doctors to describe a baby with muscle and nerve dysfunction in one or both arms caused by damage or malformation of the brachial plexus nerves. It is named after Wilhelm Erb, who, in 1874 concluded that associated paralyses of the shoulder, back, and arms are derived from damage to the nerves in the brachial plexus region, rather than isolated nerves further down the arms. It is marked by the nerves of the upper arm being affected, usually after a birth injury. Infants with Erb’s palsy may experience the loss of feeling and weakness in the affected arm and hand. In severe cases, infants may have total paralysis in the affected arm.

KLUMKE’S PALSY

Klumpke’s palsy is diagnosed when damage to the lower nerves in the arm affects the arm, wrists, and fingers. It is named after Augusta Déjerine-Klumpke, an American-born French physician known for her work in neuroanatomy. A baby with Klumpke’s palsy will usually have total paralysis in the lower half of the affected arm, and the hand usually takes on a permanent, claw-like shape.

HEAD INJURIES

Head injury during birth is far less common than a brachial plexus injury. When it does occur, it is usually associated with the doctor’s use of either a vacuum extractor and/or forceps to assist with delivering the baby. Both of these devices are applied to the baby’s head. Improper use can cause bruising and swelling around the baby’s head and face. This will usually resolve within a few days and have no long term effects.

However, improper use of forceps and/or vacuum devices can also damage the blood vessels in and around the baby’s brain, or the nerves leading from the brain to the rest of the spinal cord. This may cause loss of memory, speech, or movement in the affected area.

Your baby’s pediatrician should be aware that your baby was delivered by vacuum or forceps, and be on close watch for any developmental delays. Your baby should be seen by specialists in neurology and physical medicine at the first sign of decreased physical or mental development.

Birth Injury Infections

Infections can have serious consequences for developing and newborn babies, including brain and other major organ damage. An infection can be transmitted to an unborn baby via the placenta, the umbilical cord, the amniotic fluid, or the vaginal canal. Of course, it is the doctor’s responsibility to detect and treat infections, and to take measures to protect the baby from the harm these infections can cause. Some of the more common infections associated with preventable birth injury cases are:

CHORIOAMNIONITIS

This is an inflammation of the membranes surrounding the baby in her mother’s uterus due to a bacterial infection. It typically results from bacteria ascending into the uterus from the vagina and is most often associated with prolonged labor. The risk of developing chorioamnionitis increases with each vaginal examination that is performed in the final month of pregnancy, including during labor. Failure of the doctor to recognize the onset of chorioamnionitis and timely deliver the baby can result in permanent and serious injury or even death.

GROUP B STREP (GBS)

GBS is a bacteria commonly found in the lower part of the digestive system (colon) and, in women, the vagina. In healthy adults, GBS is not harmful and does not cause medical problems. But in pregnant women and newborn infants, being infected with GBS can cause serious illness.

Approximately one in three pregnant women in the US carries GBS in their intestinal tract and/or in their vagina. Carrying GBS is not the same as being infected. Carriers are not sick and do not need treatment during pregnancy. There is no treatment that can stop you from carrying GBS.

Pregnant women who are carriers of GBS can become infected. GBS can cause urinary tract infections (typically involving only the bladder), infection of the amniotic fluid (“bag of water” surrounding the fetus), and infection of the uterus after delivery. GBS infections during pregnancy may lead to preterm labor or stillbirth.

Pregnant women who carry GBS can pass on the bacteria to their newborns, and some of those babies become infected with GBS. Newborns who are infected with GBS can develop pneumonia (lung infection), septicemia (blood infection), and/or meningitis (infection of the lining of the brain and spinal cord).

These complications can be prevented by giving intravenous antibiotics during labor to any woman who is at risk of GBS infection.

You are at risk of GBS infection if:

• You have a urine culture during your current pregnancy showing GBS
• You have a vaginal and rectal swab culture during your current pregnancy showing GBS
• You had an infant infected with GBS in the past

If you go into labor and have not had a culture for GBS in your current pregnancy or a previously affected infant, you are at risk for GBS if:

• You go into labor prematurely (more than three weeks before your due date)
• You have a fever ≥100.4 degrees Fahrenheit during labor
• You have ruptured membranes for ≥48 hours

GENITAL HERPES

The biggest concern with genital herpes during pregnancy is that you might transmit it to your baby during labor and delivery. Newborn herpes is relatively rare (about 1,500 newborns are affected each year), but the disease can be devastating, so it’s important to learn how to reduce your baby’s risk of becoming infected. You can transmit herpes to your baby during labor and delivery if you’re contagious, or “shedding virus,” at that time. The risk of transmission is high if you get herpes for the first time (a primary infection) late in your pregnancy.

Much less commonly, you can transmit the virus if you’re having a recurrent infection. If you’ve ever had a herpes outbreak, the virus remains in your body and can become reactivated. In rare cases, a pregnant woman may transmit the infection to her baby through the placenta if she gets herpes for the first time in her first trimester. If a baby is infected this way, the virus can cause a miscarriage or serious birth defects.

If you’re having an outbreak or symptoms of an impending outbreak when your water breaks or when you go into labor, you’ll need an immediate cesarean delivery. This would be the case if you have any visible sores on your cervix, vagina, or external genitals, or any symptoms, like tingling, burning, or pain, that sometimes signal an imminent outbreak. (Currently, there’s no quick and reliable way to test whether you’re actually shedding virus.)

To improve your chances of being able to deliver vaginally, most experts — including the American College of Obstetricians and Gynecologists — recommend that pregnant women with recurrent genital herpes be offered oral antiviral medication from 36 weeks or so until delivery. Recent studies show that this reduces the risk of an outbreak at the time of labor.

If you first get genital herpes late in pregnancy and blood tests confirm you’ve never had it before, some experts recommend having a cesarean section even if you don’t have symptoms when you go into labor. About a third of the time, newborn herpes affects a baby’s skin, eyes, or mouth, but not his other organs. If that’s the case, he may have sores at delivery or develop them up to four weeks later. They typically turn up between 1 and 2 weeks of age.

Herpes lesions usually look like blisters and can appear anywhere on a baby’s body. They often appear where there has been a small break in the skin or any trauma — like where the hospital wristband was or where an electrode was placed on his head to monitor his heart rate during labor.

If your baby has herpes that’s limited to the skin, eyes, and mouth and gets prompt treatment with intravenous acyclovir, he’ll most likely do well. One study showed that more than 90 percent of babies with this form of herpes were developing normally when they were tested as 1-year-olds, although an infected baby can have serious recurrent outbreaks or long-term problems.

If not treated promptly, a baby who starts out with herpes limited to the skin, eyes, and mouth can go on to develop an even more serious form of herpes.

In another third of newborns who get herpes, the central nervous system is affected. This most often shows up at about 2 to 3 weeks of age with symptoms such as irritability, fever, lethargy, poor feeding, or seizures.

The remaining third of newborns get what’s called “disseminated herpes”. This involves multiple organs, often the lungs and liver. It typically shows up during the first week after birth. Babies with disseminated herpes may or may not have skin lesions. (If they don’t, diagnosing herpes as the source of the baby’s illness is tricky.)

These latter forms of herpes are very serious. Unfortunately, even with prompt treatment, a number of these babies will die, and many of the survivors will end up with serious long-term health and developmental problems.

TRICHOMONIASIS

Trichomoniasis is a fairly common sexually transmitted infection that is caused by a microscopic parasite. A “trich” infection during pregnancy is associated with a higher risk of preterm birth, preterm premature rupture of the membranes (PPROM), and having a low-birth-weight baby (a baby weighing less than 5.5 pounds at birth). Trichomoniasis can also make you more susceptible to HIV if you’re exposed to it.

It’s possible for your baby to become infected with the trich parasite during delivery, but that happens very rarely, and the infection can be treated with antibiotics.

You might not have any symptoms. If you do, you may have a yellowish or greenish vaginal discharge, often with a frothy appearance and an unpleasant odor, and your vagina and vulva might get red, irritated, or itchy. You might experience some discomfort while urinating or during intercourse, and possibly some spotting after intercourse. You may notice lower abdominal discomfort, but that symptom is less common. Symptoms could start soon after you become infected or show up much later. So, if you’ve just been diagnosed with trich, it doesn’t necessarily mean that you recently contracted it.

If you do have symptoms, let your practitioner know so you can be tested for trich and other possible culprits. To test for trichomoniasis, your practitioner will take a swab of vaginal fluid and examine it under a microscope. She may also send a sample to the lab for a more sensitive test.

Unless you have symptoms, you won’t be tested for trich. There’s no evidence that treating trich lowers your risk of complications, and some research suggests that it may even increase the risk of preterm birth. For this reason, only women with bothersome symptoms are tested and treated for trich during pregnancy.

If you have bothersome symptoms and are diagnosed with trich, you’ll be given a course of oral metronidazole, which is generally considered safe for the baby during pregnancy. Your partner should be treated at the same time, whether or not he has symptoms (most men don’t).

You’ll need to abstain from sexual intercourse until you’ve both finished the treatment and are symptom-free – otherwise, you risk being reinfected.

Have sex only with a partner who has sex only with you. If this isn’t the case, using condoms reduces the risk of transmission of trichomoniasis and most other STIs.

Birth Injuries Caused During Delivery

Birth injuries that occur during delivery are not uncommon. Improper use of vacuum extractors or forceps, administering the wrong medication, or mishandling the infant can result in serious injuries to newborns. Depending on how the physician handles the delivery, an infant may also experience injuries related to stress, decreased oxygen, high or low blood pressure.

Wrongful Birth

Also called “Wrongful Life”, these cases stir up intense controversy. Can any life be “wrongful”? Is it morally wrong to allow parents to abort an “imperfect” fetus? If we set aside societal judgment and community opinion and focus strictly on the law, we find that about half of the states recognize a claim for a doctor’s failure to inform and prepare parents that an infant will be born with a severe abnormality. While it is probably a misnomer, these cases are often called “wrongful birth” or “wrongful life” actions.

Wrongful birth actions are usually derived from the tests that doctors perform to check on the development of the baby at various stages in a pregnancy. These tests can detect abnormalities in the baby that parents may wish to avoid by terminating the pregnancy. This avoids a lifetime of pain and suffering for the child, and the enormous financial and emotional burden that would be placed on the parents.

Obviously, these cases create “battle lines” between pro-life and pro-choice advocates. There are intense personal, political, and social ramifications involved in pursuing a wrongful life case.

Diagnosis of a Birth Injury

No one can diagnose their own child with a birth injury or a developmental delay. If you suspect that your child is consistently missing milestones or, if your child is showing other birth injury symptoms, it is critical to discuss your concerns with his/her pediatrician so that the proper medical investigation can be started.

This investigation could include imaging studies of your child’s brain such as CT, MRI or Ultrasound. It could also include blood testing for chemical, metabolic, or genetic abnormalities. Your child may have an EEG to study the electrical pathways of his or her brain. You may be referred to a specialist in pediatric neurology, physiatry, or orthopedics.

The process of diagnosis can be long and frustrating. Getting answers for the cause of your child’s condition often requires patience, persistence and time. Keep your appointments, take notes and ASK QUESTIONS! You can’t provide the proper care and support your child needs until you fully understand his/her condition and the treatment options available.

Common Birth Injury Symptoms

Calling birth injury symptoms “common” is probably a misnomer. Injuries suffered during the birth process can be physical and readily apparent. These include fractures, cuts, bruises, and nerve damage. If, however, the injuries are related to the brain and/or other internal organs, the signs of injury may not be apparent for some time.

As a parent, you should seek the advice of your child’s doctor if you observe any of the following:

• Baby arches back while crying
• Lack of movement in arm(s) or leg(s)
• Curled up hand(s)
• Breathlessness
• Difficulties with sucking, eating, and swallowing
• Excessive drooling
• Excessive fussiness for no apparent reason
• Grunting and/or high-pitched crying
• Nausea, vomiting
• Lethargy
• Light sensitivity
• Jaundice (yellow skin)
• Blue lips, fingers, or toes
• Poor weight gain
• Seizures

Sometimes, the diagnosis of a brain injury suffered during the birth process is not made until an infant falls behind on his or her “developmental milestones”. These “milestones” are behaviors which most children exhibit by certain ages. It is important to note that every child is different, and not all will reach each of the milestones by the average time. Your child’s doctor will be able to discuss these milestones and your child’s abilities in more detail.

Child Development Milestones

Below is a list of the usual milestones and associated age ranges doctors use to assess development.

2 TO 4 MONTHS OLD

• Baby will turn head in response to sound
• Baby coos and smiles
• Baby uses eyes to follow objects and recognizes faces
• Baby can hold up and control head
• Baby can reach and grasp objects
• Baby pushes up on elbows if lying on stomach

6 To 9 Months Old

• Baby puts objects to mouth
• Baby begins to crawl
• Baby can roll from back to front and front to back
• Baby passes objects from one hand to the other hand
• Baby can sit upright without assistance
• Baby can “bounce” up and down while being held with feet on floor
• Baby can pick up small objects with fingers
• Baby reacts to words and sounds

1 Year Old

• Understands simple instructions
• Explores surroundings
• May walk, or start trying to walk
• Starts to say simple words

18 Months Old

• Holds a pencil or crayon and scribbles alone
• More advanced at standing and walking
• Holds and eats with a spoon
• Holds and drinks from a cup
• Indicates which objects he/she wants

2-3 Years Old

• Knows and can say his/her name and age
• Runs and kicks a ball
• Draws lines and shapes
• Identifies body parts
• Identifies family members
• Completes sentences and understands rhymes
• Walks up and down stairs without help
• Dresses and undresses without help

4-5 YEARS OLD

• Uses the toilet without assistance
• Works out simple problems with peers
• Uses safety scissors
• Recites his/her favorite stories
• Climbs up onto things without assistance

Resources to Assist With Birth Injury Diagnosis

UNITED CEREBRAL PALSY (UCP)

UCP is an organization dedicated to advocacy for children with cerebral palsy and education of their caregivers. UCP educates, advocates and provides support services to ensure a life without limits for people with a spectrum of disabilities. UCP also serves as a clearinghouse for research, local assistance and other resources. www.ucp.org

CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC)

The CDC acts as the United States’ health protection agency. CDC conducts critical scientific research and analysis and provides health information with the goal of protecting the U.S. against expensive and dangerous health threats. The CDC can provide detailed information about the known types of cerebral palsy, their symptoms, research and scientific articles. www.cdc.gov

KENNEDY KRIEGER INSTITUTE

Located in Baltimore, Kennedy Krieger Institute is an internationally recognized institution dedicated to improving the lives of children and young adults with pediatric developmental disabilities and disorders of the brain, spinal cord and musculoskeletal system, through patient care, special education, research, and professional training.

Kennedy Krieger’s patient care programs offer an interdisciplinary treatment approach tailored to the individual needs of each child, throughout all stages of care. Highly trained professionals from various disciplines and departments collaborate to design treatment plans specific to each patient’s needs. www.kennedykrieger.org

MARCH OF DIMES

The March of Dimes is a non-profit organization dedicated to preventing birth defects and infant mortality. The March of Dimes has led the way to discover the genetic causes of birth defects, to promote newborn screening, and to educate medical professionals and the public about best practices for healthy pregnancy. The work done by the March of Dimes helped initiate the system of regional neonatal intensive care for premature and sick babies. www.marchofdimes.org

UNITED BRACHIAL PLEXUS NETWORK

The United Brachial Plexus Network (UBPN) is a non-profit organization devoted to providing information, support and leadership for families and those concerned with brachial plexus injuries worldwide. Available resources include their extensive website; online registry, outreach and awareness programs, and an in-depth publication. www.ubpn.org

THE NATIONAL INSTITUTE OF NEUROLOGICAL DISORDERS AND STROKE (NINDS)

NINDS is part of the U.S. National Institutes of Health (NIH). It conducts and funds research on brain and nervous system disorders. The mission of NINDS is “to reduce the burden of neurological disease—a burden borne by every age group, every segment of society, and people all over the world”. NINDS basic science research focuses on studies of the fundamental biology of the brain and nervous system, genetics, neurodegeneration, learning and memory, motor control, brain repair, and synapses. NINDS also funds clinical research related to diseases and disorders of the brain and nervous system, including brachial plexus injuries, Hypoxic Ischemic Encephalopathy, Alzheimer’s disease, epilepsy, muscular dystrophy, multiple sclerosis, Parkinson’s disease, spinal cord injury, stroke, and traumatic brain injury. www.ninds.nih.gov

BRACHIAL PLEXUS INJURY

Treatment for brachial plexus injuries (Erb’s Palsy or Klumke’s Palsy) includes splinting, occupational or physical therapy and, in some cases, surgery. Some brachial plexus injuries may heal without treatment. Many infants improve or recover within 6 months, but those that do not have a very poor outlook and will need further surgery to try to compensate for the nerve damage. The ability to bend the elbow (biceps function) by the third month of life is considered an indicator of probable recovery, with additional upward movement of the wrist, as well as straightening of thumb and fingers an even stronger indicator of excellent spontaneous improvement. Gentle range of motion exercises performed by parents, accompanied by repeated examinations by a physician, may be all that is necessary for patients with strong indicators of recovery.

REHABILITATION

There are many treatments to facilitate the process of recovery in people who have brachial plexus injuries. Improvements occur slowly and the rehabilitation process can take up to many years. Many factors should be considered when estimating recovery time, such as initial diagnosis of the injury, severity of the injury, and type of treatments used. Some forms of treatment include nerve grafts, medication, surgical decompression, nerve transfer, physical therapy, and occupational therapy.

OCCUPATIONAL THERAPY

Having an effective Occupational or Physical Therapy program is important when dealing with the unfortunate circumstances of brachial plexus injuries. One of the main goals of rehabilitation is to prevent muscle atrophy (loss of muscle tissue from disuse) until the nerves regain function. Electrical stimulation is an effective treatment to help patients reach this fundamental goal. Exercises that involve shoulder extension, flexion, elevation, depression, abduction and adduction facilitate healing by engaging the nerves in the damaged sites as well as improve muscle function. Stretching is done on a daily basis to improve or maintain range of motion. Stretching is important in order to rehabilitate since it increases the blood flow to the injury as well as facilitates nerves in functioning properly.

UTERINE RUPTURE

Although uterine scar ruptures for women laboring for a VBAC are rare, the medical response is a rapid cesarean. The longer it takes to diagnose and respond to a uterine rupture the more likely it is that the baby and/or the placenta can be pushed through the uterine wall and into the mother’s abdominal cavity. This places the mother at increased risk for hemorrhage and the baby at increased risk for brain injury or death.

Informed Choice Current US health law and medical-ethical guidelines give childbearing women who once gave birth by cesarean the option of laboring for a VBAC or scheduling an elective repeat cesarean. Women with one prior cesarean should be counseled by their doctors about VBAC during the early part of their pregnancy. Your doctor should give you comprehensive information about the benefits and risks of VBAC and elective repeat cesarean. Ultimately the decision about how to deliver your baby is YOURS.

For additional information see:

• A Woman’s Guide to VBAC : Navigating the NIH Consensus Recommendations
  www.givingbirthwithconfidence.org
• ACOG Vaginal Birth After Previous Cesarean Delivery
  www.acog.org
• Vermont/New Hampshire VBAC Project
  www.nnepqin.org

Additional Resources

MARYLAND THERAPEUTIC RIDING

Maryland Therapeutic Riding uses horses to help disabled children build core strength while creating a positive emotional bonding experience. www.horsesthatheal.org

EXERCISE THERAPY FOR DISABLED CHILDREN EQUINE (HORSE) THERAPY

Learning to ride a horse requires balance and coordination. Many physically disabled children lack muscle tone, and consequently, their coordination is severely lacking. Equine therapy gives a disabled child a physically enjoyable experience (learning to ride a horse) that also helps develop muscle tone, balance, and coordination. It also helps the child develop and improve upon hand-eye coordination. It achieves the same results as standard physical therapy but in a more pleasant setting.

For more information about equine therapy, please visit www.horsesthatheal.org

MARTIAL ARTS

For children with special needs the benefits of martial arts are invaluable. The structure and discipline the martial arts bring to a child’s daily life assist the child with overcoming the extra challenges presented by his/her disability.

The unique component of martial arts for children with special needs is the competition within themselves, not with others. Children with special needs must work on life skills, not competing with others for a trophy. Martial arts requires consistency and repetition. The continuous structure, discipline and physical demands of martial arts allow children with multisensory issues to thrive and enjoy a true sense of accomplishment. Focus, concentration, balance, tone, awareness, self regulation, core strength, reduced anxiety, and spatial awareness are just a few of the benefits your child will receive when you find the right martial arts program. For more information about martial arts programs for special needs children, please visit:

• www.specialneeds.com
• www.adaptivemartialarts.org

Swimming

Water decreases pressure on bones and joints, which is beneficial for children with physical disabilities. Being in the water is also fun for children, which can be an important motivator for exercise. Swimming lessons help kids with special needs in a number of key areas, including greater muscle strength and physical endurance, increased flexibility, more self-control, and, in many instances, improved behavioral outcomes.

For more information about swimming for children with special needs, please visit:

• www.reachabilityfoundation.org
• www.sensoryswim.com
• www.specialneeds.com

SPECIAL NEEDS TRUSTS

A special needs trust is set up for a person with special needs (the beneficiary) to supplement any government benefits the person receives. A special needs trust is designed to manage assets for that person’s benefit while not compromising access to important government benefits. The trust must be created by the beneficiary’s parent or grandparent, or by a court, but it cannot be created by the beneficiary, even though his assets are going to fund the trust. While the beneficiary is living, the funds in the trust are used for his benefit. When he dies, any assets remaining in the trust are used to reimburse the government for the cost of his medical care. These trusts are especially useful for people receiving SSI and/or medicaid who come into large amounts of money, such as a law suit settlement. The trust allows the beneficiary to retain his benefits while still being able to use his own funds when necessary.

POOLED SPECIAL NEEDS TRUSTS

These trusts pool the resources of many disabled beneficiaries, and those resources are managed by a non-profit association. There are times when the amount of money available to fund the trust is not enough for an individual trust to make sense. In those instances we can direct our clients into these trusts, which provide the same asset protections and trust services of an individual trust, but spread the administration costs over a larger participant group. In addition, at the beneficiary’s death the state does not have to be repaid for its Medicaid expenses on her behalf as long as the funds are retained in the trust for the benefit of other disabled beneficiaries.

For more information on Pooled Special Needs Trusts please visit: www.shared-horizons.org

SPECIAL NEEDS HOME MODIFICATIONS

Homes can often be modified and made more accessible with some minor structural changes. We work with contractors who have specific experience in creating adaptive and accessible living spaces for our disabled clients.

You can also ask your child’s physical or occupational therapist for suggestions of adaptive equipment and modifications. There are sometimes inexpensive and creative solutions to improve accessibility. As you identify needed modifications, remember to think about your child’s future needs. As a child grows, will the bathroom be large enough and will the bedroom accommodate a hospital bed? Will you need a dedicated room for therapy? Some popular examples of home modifications include:

• Constructing ramps
• Widening doors and changing from knobs to levers
• Lowering countertops
• Installing grab bars, shower seats and walk-in bathtubs
• Installing a stair glide or elevator

MEDICAL CARE AND SERVICES COORDINATION

Many of our clients have complex medical care and services needs. The time spent on ensuring appoints are kept and the right care and services are received can be overwhelming for their family members. Then, there is the added stress of making sure the right insurance and government entities pay for the care. To help, we direct our clients to organizations that provide care management for people with the most complex health, social and disability needs. Managed care case management is targeted care coordination and innovative services among managed care plan participants whose care needs are over and above those that are typical of most participants. Care needs may cover the spectrum of health and safety concerns related to trauma, rare diagnoses, catastrophic needs, or chronic illnesses that result in greater use of health care and therapeutic services.

VOCATIONAL REHABILITATION AND ANALYSIS

Vocational rehabilitation is a process which enables persons with functional, psychological, developmental, cognitive and emotional impairments or health disabilities to overcome barriers to accessing, maintaining or returning to employment or other useful occupation.

Vocational rehabilitation can include:

• assessment, appraisal, program evaluation and research.
• goal setting and intervention planning.
• provision of health advice and promotion, in support of returning to work.
• support for self-management of health conditions.
• making adjustments to the medical and psychological impact of a disability.
• case management, referral, and service co-ordination.
• psychosocial interventions.
• career counseling, job analysis, job development, and placement services.
• functional and work capacity evaluations

We work with a number of professionals in this field who are dedicated to finding ways our clients can grow and prosper as active contributing members of the community.

MEDICAID REM PROGRAM

The Rare and Expensive Case Management (REM) Program is a case managed fee for service program for individuals participating in Maryland Medical Assistance.The purpose of the program is to provide the integrated coordination of services for people with specialized health care needs. For purposes of the program, these needs have been defined as rare in occurrence and expensive to treat.

Many of our clients are eligible because of their specialized health care needs exceed the scope of services provided by Medicaid managed care organizations. Participating individuals have eligibility for all Medicaid plan covered services as well as an array of optional services.

Basic services under the state plan include medically necessary:

• Physician visits
• Inpatient hospital services
• Pharmacy
• Home health services
• Radiology and lab services
• Durable medical equipment
• Disposable medical supplies
• Therapies, including PT/OT/SL/Assistive Technology

Possible optional services may include medically necessary:

• Private duty nursing and nursing assistance
• Nutritional supplements
• Dental care

How common are birth injuries?

Birth injury is defined as an impairment of the neonate’s body function or structure due to an adverse event that occurred at birth. The overall incidence of birth injuries has declined with improvements in obstetrical care and prenatal diagnosis. The reported incidence of birth injuries is about 2% in singleton vaginal births and 1% in singleton c-sections. The injury may occur during labor, delivery, or after delivery, especially in neonates who require resuscitation in the delivery room.

There is a wide spectrum of birth injuries ranging from minor and self-limited problems (eg, laceration or bruising) to severe injuries that may result in significant neonatal morbidity or mortality (ie, spinal cord injuries). The 10 most common birth injuries include: Brachial Plexus Palsy (Erb’s Palsy), bone fractures, cephalohematoma, caput succedaneum, perinatal asphyxia, intracranial hemorrhage, subconjunctival hemorrhage, facial paralysis; spinal cord injuries; and cerebral palsy.

According to the National Healthcare Quality Report (AHRQ), around 6.68 of every 1,000 birth injuries in the year 2000, in the United States, occurred to male infants, whereas 5.08 of every 1,000 birth injuries happened to female infants. In the same year, 4.33 out of every 1,000 birth traumas occurred in for-profit, private hospitals and 7.15 out of every 1,000 birth traumas occurred at private, non-profit hospitals.

Birth injuries are highest for mothers with birthing tool-assisted deliveries from ages 25-34, and lowest in mothers who range from 40-54. However, the birth injuries for mothers delivering non-instrument assisted vaginal births is only high for ages 25-29.

Are injuries to the mother considered a birth injury?

• Yes, injuries to mothers are considered a birth injury.
• Examples: vaginal tears during childbirth, post-partum hemorrhage, ruptured uterus, and prolapsed uterus.

Can birth injuries cause brain damage?

• Yes, birth injuries can cause brain damage.
• Examples: oxygen deprivation, subdural hemorrhage, intraventricular hemorrhage, or trauma to the head.

Statute of Limitations for a Birth Injury Claim

In Maryland, the statute of limitations for medical malpractice claims is five (5) years from the time of the injury or three (3) from the discovery of the injury, whichever is shorter. The SOL on injuries to minor children generally do not begin to run until the child reaches 18 years of age. Wrongful infant death claims must be filed within three (3) years from the date of death.

Who will receive money after a successful lawsuit for a birth injury?

The distribution of money after a successful lawsuit will not always be the same. In a birth injury case, the vast majority of the recovery is for the child. Therefore, the law requires that the money be placed in a protected trust and only used for the child’s direct benefit.

This can be difficult for many parents to accept. We often hear things like “why would anyone think I would steal from my baby?” Or, “I have other children who have been impacted by the added time and money it has cost to care for the injured baby, why can’t we use the money to help our whole family?”

These are legitimate and totally understandable questions. Dealing with these issues is never easy. That is why we continue to work with our clients even after the case is successfully resolved. We work trust managers, trust lawyers, and asset managers who are experts in this area of law, and who understand that our clients need to be cared for as a family unit. While each case is different, our goals are always the same: (1) ensure that the injured child will be able to afford the care and services he/she will need in the future; (2) ensure the injured child will be safe and secure even after his/her parents can no longer care for him/her; (3) ensure that the family is satisfied with the plan that has been put into place.

What’s the difference between a birth defect and a birth injury?

Generally, the difference lies in whether the outcome was preventable.

The development of a baby from two individual cells into a tiny human requires almost unimaginably complicated biological processes. If something goes “wrong” at any point in during the process, the child may not develop properly. These “errors” in the process of development lead to “birth defects”, such as a hole in the child’s heart, a missing arm, club feet, or a cleft palate. There are cases where these outcomes can be linked to a drug that was prescribed to the mother, or some environmental toxin to which she was exposed. However, the vast majority of these “process errors” are “birth defects” and there is no legal action that can be taken.

“Birth Injuries” are outcomes that could have and should have been prevented. Birth injury cases all start with identifying a time during the baby’s development or delivery where the medical providers had a chance to do something (or not do something) that would have prevented the child’s injury. If such a time exists, and it can be shown that proper medical care would have spared the child from the harm he/she currently suffers, then it is a birth injury case.

Is cerebral palsy as birth injury?

• Cerebral palsy is a neurological disorder that affects the child’s motor skills, muscle tone, and movement. Most cases of cerebral palsy are the result of a congenital disorder, usually caused by brain damage in utero or during or shortly after birth. However, a childhood injury or severe medical condition can lead to cerebral palsy.
• Cerebral palsy can be a birth injury if it is the result of brain damage caused by medical negligence during birth (i.e., preventable injuries), such as oxygen deprivation or improper use of forceps and other tools during delivery. Medical negligence can also be a failure to act, such as delaying a C-section or failing to perform one when medically necessary, improperly monitoring the health of the fetus, or not detecting and treating infections.

I remember signing a consent form, does that mean I have no basis for a lawsuit?

Signing a consent form does not take away your basis for a lawsuit. No one, including doctors and nurses, can touch you, give you drugs, or run tests on you without your permission. Therefore, you must sign a consent form to allow the doctors and nurses to treat and care for you. However, by signing the form you are not giving the doctors and nurses permission to make avoidable mistakes or be negligent in a way that harms you or your baby.

How long does a birth injury case take?

These cases are usually complicated and require significant time to properly develop and litigate. Generally, you can expect that it will take several months just to gather the medical records and other information we need to evaluate the case. Once that step is completed, we will usually spend another month or two working with medical experts to evaluate the medical care and scientific issues in the case. If our analysis concludes that a lawsuit should be filed, it will usually take another 15 to 18 months for the suit to reach conclusion.

Can I get financial help while my case is pending?

Caring for an injured child can be financially and emotionally draining. The stress can understandably lead to a feeling of desperation making “lawsuit loans” look attractive. However, we strongly discourage our clients from taking these loans. The costs of the loans are extraordinary, taxing, and almost never make good financial sense. We prefer to work with our clients to ensure they are receiving all of the government and charitable services available to them, and make every effort to find alternative ways to alleviate their stress.

How much will it cost to file a birth injury case?

Nothing. There is no cost to you unless we win. If the case is successfully resolved, the costs of the lawsuit are repaid from the recovery.