April 15, 2014

Doctors Given New Guidelines for Newborn Birth Injuries to the Brain

by Levin & Perconti

Recent updates to guidelines issued by the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics advise physicians to conduct extensive examinations on babies born with brain injuries, or neonatal encephalopathy. According to a report on the Health Day website, the two groups have determined that, by pinpointing the causes of brain injury, physicians can prevent further complications and create new techniques for prevention. The previous recommendations were presented in 2003, directing doctors to place their focus on the possible lack of oxygen to the brain during delivery. The new guidelines are extending those recommendations to include other details of the delivery, as well as the mother's physical condition.

Loss of oxygen is reportedly a common cause of newborn brain injury, but the causes can begin before labor even starts. According to the report, there are several possible causes for these injuries:

Metabolic Disorders
Genetic Conditions
Placenta complications
Oxygen Deprivation

Researchers hope that the new guidelines will result in treatment advances for prevention and management of brain injuries in newborns. Currently, treatment is utilized at much higher rate than prevention. According to a National Institute of Health report, the current treatment model includes:

Correction of hypertension
Management of pulmonary disturbances
Maintenance of glucose levels
Treatment of seizures
Monitoring for additional organ system complications

Neonatal hypothermia is reportedly the sole method of prevention currently in common use. The article explains that the treatment cools a newborn's body down for 72 hours. This suppresses the cell pathways, which defers the death of healthy cells and minimizes long-term damage to the brain.

The Frequency and Complications of Neonatal Encephalopathy
According to the Health Day website, physicians are reacting positively to the recommendations, with one doctor referring to the guidelines as a “safety document.” The guidelines call for a more proactive approach by pediatricians as well. The report states that more than 3,000 American hospitals perform births on a daily basis. Out of that number, neonatal intensive care units are only available in about 1,000 of them. Researchers state that in the other 2,000 facilities, pediatricians should be actively involved in treating newborns with brain related birth injuries or quickly referring them to a facility where neonatal hypothermia is offered.

The NIH reports that neonatal encephalopathy occurs in one to five of every 1000 live births. Of those occurrences, 15% to 20% of the babies do not survive the postnatal period and about 25% are diagnosed with various childhood disabilities. The levels of damage to the brain affect the extent of injury in the baby. Severe encephalopathy in newborns can result in death. Survivors are at a significant risk of cerebral palsy and mental retardation. Moderate encephalopathy can result in “memory impairment, visual motor or visual perceptive dysfunction, increased hyperactivity, and delayed school readiness.”

These recommendations give doctors a higher level of responsibility and accountability for newborns with birth injuries to the brain. Failure to follow this suggested course of action for detection and prevention of neonatal encephalopathy could result in legal liability.

If you are the parent of a baby who was born with an injury to the brain, contact the attorneys of Levin & Perconti.

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Hospital Lawsuit Following Brain Injury During Childbirth

April 11, 2014

Parents of a Stillborn Baby File Lawsuit Against Hospital and Doctors

by Levin & Perconti

According to a report by Medstak, a couple recently filed a lawsuit alleging medical negligence that resulted in the death of their unborn child. The complaint names the hosptial and two medical centers as the responsible parties. It also lists several specific employees from each organization. The plaintiff was reportedly 30-years-old when she was admitted into the hospital for a scheduled inducing of labor. She states that she had medical complications with previous labor,s including gestational diabetes. According to the complaint, the parties assert that this history should have alerted doctors to possible problems with the labor and delivery process. The mother additionally claims that, once inducement was started, the fetus showed numerous signs of distress. However, from her perspective, hospital staff did nothing to address the signs.

The plaintiff's baby was stillborn, with no heartbeat upon delivery. An autopsy reportedly concluded that asphyxia was the cause of death. Asphyxia occurs when there is not enough oxygen to the brain. According to the article, it is treatable if detected early. There are various levels of asphyxia. Mild asphyxia can be treated with minimal effects. Severe asphyxia can result in brain damage or organ failure. The most extreme cases result in death. The plaintiffs assert that the baby could have been saved if the hospital staff had completed the delivery by cesarean section earlier in the labor process.

The Causes and Risk Factors of Stillbirth
The American Congress of Obstetricians and Gynecologists describes stillbirth as “a fetal death that occurs during pregnancy at 20 weeks or greater of gestation.” The organization reports that stillbirth occurs once in every 160 pregnancies, with about 25,000 stillbirths reported each year. Though this is a common occurrence, physicians remain somewhat unsure about its causes. However, several risk factors are known:

***African American women reportedly experience stillbirths more often than any other race of woman in the United States, even when receiving sufficient prenatal care
***Women with diabetes prior to pregnancy are more likely to deliver a stillborn child
***Obesity is a substantial risk factor, even when there are no additional health issues
***A pregnancy of two or more babies is four times more likely to conclude with a stillbirth
***Older women with their first pregnancy have a higher risk of stillbirth than older women who have been pregnant before

According to the Medstak report, Norwegian researchers claim that “half of all birth asphyxia cases may be attributed to medical negligence.” Inadequate fetal monitoring and lack of overall clinical skill are reportedly the major causes for this disturbing conclusion. The plaintiff in the North Carolina case alleges that the hospital staff did not adequately monitor the fetal monitor throughout the inducement of labor. This allegedly led to a lack of action on the part of the physician.

If your baby was stillborn and you suspect medical negligence, call an experienced attorney who will aggressively advocate to pursue any relief to which you are entitled.

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Advocate Calls for Hospital Births -- Raises Awareness of Childbirth Deaths

April 3, 2014

Neural Tube Defects in Newborns

by Levin & Perconti

Birth defects of the brain or spine are called neural tube defects. According to the National Institute of Health (NIH), neural tube defects often occur as a result of insufficient folic acid intake by the mother. Folic acid is is a form of the Vitamin B and it is found in foods like spinach, broccoli and various types of beans. Women who do not eat these types of food are often deficient in Vitamin B, even before becoming pregnant. Neural tube defects develop within the first month of gestation. Women often don't know that they are pregnant yet, so they are not taking prenatal vitamins, which are good supplements for folic acid. To combat this potential problem, physicians sometimes prescribe prenatal vitamins to patients who are trying to become pregnant. According to the NIH, there is a higher risk of neural tube defects when:

--the mother is obese

--the mother has diabetes that are not adequately controlled

--the mother takes certain medications to prevent seizures

Types of Neural Tube Defects

Spina bifida is one type of neural tube defect. According to the NIH, it occurs when the spinal column of the fetus does not close completely. The most common of these defects, spina bifida occurs in approximately 1,750 U.S. births each year. There are four types of spina bifida:

--Occulta is the mildest form and rarely causes disability

--Closed neural tube defects have few or no symptoms, but can result in partial paralysis or bowel dysfunctions

--Meningocele occurs when spinal fluid protrudes through an opening in the vertebrae. It can lead to complete paralysis

--Myelomeningocele is the most severe form and often renders the affected child unable to walk

Anencephaly is another neural tube defect. According to the Center for Disease Control, babies with anencephaly are born with undeveloped parts of the brain and skull. This reportedly happens when the top of the neural tube does not completely close. Most babies born with anencephaly die very soon after birth. The CDC reports that the condition occurs once in about every 5,000 U.S. births.

The Role of the Doctor in a Neural Tube Defect Pregnancy

Neural tube defects can be detected early in the pregnancy with appropriate testing by the mother's obstetrician. According to the NIH, though there is no cure for spina bifida, a growing number of physicians are performing fetal surgeries, with the goal of closing the abnormal spinal cord opening. The procedure is done while the baby is still inside of the mother's abdomen and it involves substantial risk to the both the fetus and the mother. The fetus is in danger of premature delivery brought on by the surgery. For the mother, the procedure can cause infection and significant loss of blood.

According to reports, there is some evidence to suggest that certain prescription drugs may contribute to the development of neural tube defects, including spina bifida and the deadly anencephaly. It is a doctor's responsibility to keep abreast of the most current studies and research on various birth defects. If a mother is prescribed medications during pregnancy and the fetus develops a neural tube defect, the prescribing physician may be liable in regards to the birth defect, as well as any related difficulties.

If you or your baby has suffered due to a neural tube defect, call an experienced attorney for a free consultation.

March 26, 2014

Lawmakers Consider a No-Fault Birth Injury Fund

by Levin & Perconti

The state of Maryland is considering a measure that would protect hospitals and doctors within the state from birth injury lawsuits. According to Becker's Hospital Review, the state no-fault injury fund would compensate parents for birth injuries, in lieu of personal injury lawsuits.

During the past two years, Maryland birth injury juries returned several verdicts for awards in excess of $15 million in malpractice lawsuits. In addition, one jury awarded more than $50 million to a birth injury plaintiff against a Maryland hospital. Despite these large verdicts, medical malpractice claims are capped at $740,000 in the state of Maryland. However, officials assert that the frequency of these lawsuits is putting an undue strain on hospital resources. The Frederick News-Post reports that some hospital officials claim they are considering the closure of their maternity units, in response.

Supporters of the fund assert that it would decrease the financial risk for hospitals, while creating an ongoing source of financial compensation for parents. According to reports, they argue that it will also maintain vital medical services for the women of Maryland. Projected funding for the program is $23.1 million, which would be funded by premiums from state hospitals and OBGYN physicians. Parents who agree to utilize the fund would have 21 years to file a claim and would be prohibited from seeking any relief in the courts against the responsible hospital or the physician, regardless of the specific case facts.

The Argument Against the Fund
Opponents of the fund assert that most Maryland jury awards are reduced or overturned. Birth injury plaintiffs are already receiving award amounts that are considerably less than the court verdicts. They further argue that the fund is unnecessary and only set up to protect medical professionals at the expense of the injured party. The available payments under the fund would be insufficient to adequately cover the significant pain and suffering of injured babies and their parents.

Illinois Compensation Regulations
The state of Illinois does not utilize a no-fault injury fund. Injured parties file medical malpractice lawsuits in hopes of securing compensation through various types of damage awards. Compensatory damages cover tangible economic losses, like deprivation of income and medical costs. The award of non-economic damages is a controversial topic within the state of Illinois. These would include pain, suffering and the loss of companionship that often accompanies a birth injury. Though the state legislature voted for a $500,000 cap in 2005, judges consistently allowed judgments in excess of the cap. In 2010, the Illinois Supreme Court ruled that the cap was unconstitutional.

If you or your baby experienced a birth injury, and you believe the doctor or hospital may be responsible, contact the experienced birth injury attorneys at Levin & Perconti for aggressive representation.

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March 20, 2014

Preeclampsia and HELLP Syndrome: Diagnosis, Treatment and Wrongful Death

by Levin & Perconti

For most women, pregnancy is an exciting time, filled with planning, nesting and dreaming about the new life being brought into the world. But it is also a time for great caution, especially with pregnancy related illness increases the risk of birth related injuries for mother and baby.

Preeclampsia and HELLP
Preeclampia is a medical condition that occurs when a woman develops high blood pressure during pregnancy. According to the Preeclampsia Foundation, thousands of women and babies are sickened by the illness each year. These cases can also be fatal for the mother, the baby or both. The syndrome is particularly dangerous because many of the symptoms mirror conditions that are common in most healthy pregnancies. The Preeclampsia Foundation lists the following symptoms:

Swollen feet
Rapid weight gain
Lower back pain
Changes in vision
Sudden weight gain

Many of these symptoms are complaints that most pregnant women share and experiencing them would not necessarily alert a woman to potential complications. The key to detection lies in regular obstetrician appointments, where blood pressure is measured and protein levels are monitored. Adequate prenatal care should provide early detection of preeclampsia.

About 15% of preeclampsia cases develop into an even more serious condition called Hemplysis, Elevated Liver Enzymes, Low Platelets Count Syndrome (HELLP). The syndrome generally develops at about 37 weeks into the pregnancy. The National Institute of Health lists several possible symptoms of HELLP:

Blurry vision
Fluid retention
Bleeding that will not stop easily
Nausea and vomiting
Pain in the upper right section of the abdomen

To diagnose, physicians may conduct a CT scan to identify any bleeding in the mother's liver. A fetal non-stress test and ultrasound may also be done to diagnose any dangers to the fetus.

Numerous treatments are available for a diagnosis of preeclampsia or HELLP. High blood pressure medication may be prescribed. Dietary restrictions are also useful in controlling the symptoms and complications. In severe cases, bed rest is directed for the mother until birth, Corticosteroid may also be administered to prepare the fetus for a possible premature delivery, which may be a necessary option. The earlier the diagnosis, the more time and opportunity there is for the physician to implement a treatment plan that prevents injury and death.

Effects of Missed Diagnosis
When diagnosis of preeclampsia and HELLP is missed, the results can be devastating to mother and child. Premature birthing can cause complications to the baby's health and may result in significant birth injuries. The mother may experience excessive bleeding during the birthing process. Kidney failure is also possible, along with fluid build up inside of the lungs. Separation of the placenta from the uterine wall is also common, which causes fetal distress in about half of all cases, according to the National Institute of Health.

If you or your baby experienced birth injuries from preclampsia or HELLP, and you believe the doctor or hospital may be responsible, contact the experienced birth injury attorneys of Levin & Perconti today.

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March 13, 2014

Researchers Tackling Preterm Brain Injuries

by Levin & Perconti

Virtually all Illinois residents know that infants born prematurely often face difficult odds and have increased risk of suffering various injuries. This is to be expected, as the very idea of a “pre” term birth is that the child was not given the preferred amount of time to develop in the womb before being born--the underdevelopment can have many ramifications.

Fortunately, medical researchers never just accept that certain injuries may arise--they work to find solutions. However, before finding cures or understanding preventative steps, professionals must first appreciate exactly what causes each injury. Figuring out what is causing harm is sometimes even more difficult than finding a solution.

According to reports from the American Journal of Reproductive Immunology, one group of researchers is working to better under the mechanisms behind preterm brain injuries with the ultimate goal of developing treatments for those at risk.

The New Birth Injury Research
The root of the new research is evidence from testing in mice that an inflammatory protein produced by a pregnant mother can cause brain damage in a developing fetus. The protein usually produces a response by the body in order to fight off an infection. In the study, the injuries involved a lack of “dendrites” in the brain. These dendrites attach to neurons and create synapses helping in neuron communication. This includes the “fingerlike” connections that are so crucial for many different cognitive functions.

Interestingly, in the past research believed that the protein caused a premature birth which then led to brain injury, But after more fine-tuned investigation, they believe that the protein only causes the brain injury, not a preterm birth itself.

These distinctions are critical, because they can make all the differences in uncovering treatment options. In the case of this protein, researchers noted that an anti-inflammatory drug worked on the mice to quell the brain injury and prevent damage--but not prevent the preterm birth. The drug is currently approved by the FDA to treat rheumatoid arthritis. Researchers noted that there are no known side-effect risks for pregnant woman, and so the drug may eventually prove incredibly useful for those babies at risk of this preterm neurological damage. Those involved in this particular study noting that use in humans remains a bit off. Naturally, considerable caution is exercised before implemented new treatments that may affect a human mother and child.

The medical experts working on these matters are not limiting their work only to this particular inflammatory protein issue. Researchers note that they are taking a wide look at all of the many mechanisms involved in an attempt to understand the various factors at play in both fetal brain injuries and preterm births themselves. As already noted, the experts were surprised to learn that the brain injury and early birth may have separate underlying causes. This differed from the expectation that something about the early birth itself caused the brain damage.

Legal Help
As the above discussion shows, there is immense complexity to all of these issues. If your child suffered an injury during birth and you have questions about whether it is appropriate to pursue legal accountability, please contact the injury attorneys at our firm to see how we can help.

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March 6, 2014

State Regulations Fall Behind As Popularity of Midwives and Homebirths Rises

by Levin & Perconti

New and evolving models for health care delivery have increased the opportunity for physicians, midwives and other healthcare providers to all be involved in the treatment of the same patient. While physicians have dealt with malpractice for years, the unique and seeming surge in the popularity of midwives in the healthcare industry prompts renewed consideration of midwife liability and standards.

In 2012, an Oregon couple sued the state and their midwife, among other people, for complications that occurred during the birth of their son.

The basis of the couple’s suit was that no monitoring equipment was used to check the fetal heart rate. As a result, when born, the infant did not respond to stimulation and did not breathe on his own. He was taken to hospital and 10 days later was discharged with signs of brain damage caused by oxygen starvation. The baby suffered, among other things, significant brain damage and cerebral palsy.

The parents of the child sued for $28 million in non-economic damages as well as $22.5 million in economic damages in the form of ongoing medical and therapeutic care, lost wages, and emotional distress.

In addition to the midwife, the couple sued the state. Alleging that, though the state has a list of “absolute risk factors” for birthing centers whereby when a risk factor is present, a pregnant mother should be transferred to a higher level of care, like a hospital, that such regulations are frivolous. One such risk factors is hypertension. The state of Oregon listed the threshold at a blood pressure of 150/100. According to the lawsuit, that threshold was “inappropriate and not evidence based.”

A similar case was filed in Michigan.

Both these cases have been used as examples of why some believe states should amp up their regulation of the growing midwife industry. Although they account for less than 1 percent of all births nationwide, the number of planned non-hospital births with midwives rose nearly 30 percent between 1990 and 2009, according to the Centers for Disease Control and Prevention.

All across the country, there are lax standards for homebirth midwives. Some major concerns in many states are:

--Since licenses are not required, they can’t be charged for practicing without a license.
--Because licenses are not required, there are no standards of practice they are bound to follow and there are no penalties for violating reasonable standards of practice.
--There are no standards for the use of the term “midwife”, so they can’t be charged for falsely representing their skills.
--There are no educational standards
--There is no insurance required.

Years ago, though homebirth dramatically increased the risk of perinatal death, lawsuits rarely followed in the wake of those deaths. However, now that midwives are no longer neighborhood caretakers and have transitioned into business professionals or healthcare providers, the litigation rate has increased.

While many more suits are being filed, that does not mean that they are all won. Most people would agree that an angry parent can sue anybody but that doesn't mean that they have a case, and that doesn't preclude a midwife from winning and filing a countersuit for a malicious lawsuit.

Generally, in medical malpractice cases a plaintiff needs an expert to show that the care provided was below the industry standard, that the sub-par care cause them some harm, and that there are some damages. The problem with proving such a medical malpractice case against a midwife is that often, in many states, there are no industry standards for comparison purposes.

While there are organizations aimed at increases the validity and safety of the midwife profession, such as the Midwives Alliance of North America (MANA), it is likely safe to say that many problematic and deadly birthing incidents could be avoided with a revamping of state regulations.

February 27, 2014

Record Jury Award in West Virginia Birth Injury Case

by Levin & Perconti

Doctor and Hospital Missed Signs of Oxygen Deprivation in Infant

This past Monday, a jury in Lehigh County, West Virginia awarded $55 million to a couple whose child suffers from cerebral palsy as a result of mistakes made during his November 2009 childbirth.

The verdict is believed to be the largest for a single plaintiff in the history of the U.S.

The Case
According to the parents and plaintiffs, Mark Crowell and Sharon Petrosky Crowell of the Ohio Valley, the child wasn’t getting enough oxygen, but the doctor, Dr. Ronald Kirner, and St. Luke’s University Hospital, failed to notice the signs of distress.

Instead of delivering the baby via Caesarean section, which would have alleviated the problem, Dr. Kirner opted for vaginal delivery, which led to the child becoming stuck in the birth canal. The doctor used vacuum extraction to dislodge the baby, causing further oxygen loss. In addition, Petrosky Crowell began hemorrhaging and required emergency surgery.

During the 2012 trial, nationally recognized experts from Harvard, Johns Hopkins and the Children’s Hospital of Philadelphia sided with Kirner’s and St. Luke’s choice of procedure. However, the jury disagreed, holding the hospital and Dr. Kirner equally responsible for injuries to the child, Matthew.

Matthew is now four and, in addition to having cerebral palsy, is severely developmentally delayed. He experiences difficulty in language development as well as physical movement.

Due to a deal struck between the parties before the verdict was reached (known as a ‘high-low agreement’) the plaintiffs will not receive the full $55 million award. The agreement capped how much the hospital would pay if the plaintiffs won or lost their case. Such agreements are common in civil cases. The exact amount the Crowells will receive is unknown.

Other Causes of Cerebral Palsy
Besides oxygen deprivation, cerebral palsy can be caused by:

Damages to the baby’s brain in the early stages of pregnancy
Gene mutations during brain development
Bleeding inside the brain during pregnancy or birth
A damaged placenta
Breeched delivery
Infections (such as meningitis) after birth

Does My Child Have Cerebral Palsy?
Parents are not often aware that their infant is suffering from cerebral palsy. According to the Mayo Clinic, they should observe the baby’s posture, reflexes, muscle movements, feeding and breathing to detect possible symptoms, which include:

Muscles that are too stiff or floppy
Exaggerated reflexes
Lack of muscle coordination
Tremors, involuntary movements, or slow/writhing movements
Delayed motor skills
Favoring one side of the body
Difficulty walking
Excessive drooling
Problems sucking, swallowing or eating
Difficulty speaking
Difficulty with precise movements (e.g., picking up toys)

Parents who believe their infant suffered from oxygen deprivation during childbirth should ask for cranial ultrasounds, MRIs and blood tests to determine if their child is suffering from cerebral palsy or other birth injuries.

Continue reading "Record Jury Award in West Virginia Birth Injury Case" »

February 17, 2014

AOL CEO’s Comments on Preemies Highlight Need for Focus on Premature Births

by Levin & Perconti

This week, AOL CEO Tim Armstrong spoke with employees during a company-wide meeting on changes to employee benefits. Armstrong spoke with employees about why company contributions to retirement accounts were delayed. Armstrong blamed rising healthcare costs for AOL on the Affordable Care Act, stating:

"We had two AOLers that had distressed babies that were born that we paid $1 million each to make sure those babies were OK in general.”

Rather than inspiring understanding and agreement, Armstrong’s comments alienated AOL employees from upper management. Deanna Fei, the wife of an AOL employee and the mother of a 16-month-old, gave birth 4 months prematurely and spoke out against AOL.

"The suggestion that her very existence could be called into question and blamed for corporate cost-cutting made me really furious," Fei said.

AOL employees weren’t the only ones who were disgusted by Armstrong’s comment. The media began picking up the story, and soon, Fei was being interviewed by national news outlets about the experience she went through with her premature daughter and how Armstrong’s comments cut her.

The public outcry against Armstrong’s comments was so severe that AOL reverted back to its old policy. Armstrong called Fei personally to apologize. According to Fei, "I just hope that in the future we'll be more careful about reducing human life to a monetary figure.”

This AOL controversy has highlighted the nation’s need to discuss the treatment of and care of premature babies. Modern medicine has failed at preventing premature birth. In fact, 12% of U.S. babies are born prematurely, costing the United States $26 billion annually. $12 billion of this was paid by employers. In addition, premature babies face difficult and dangerous deliveries and often spend weeks in the hospital hooked up to various medical equipment. The risks of birth injury and infant mortality increase drastically in a premature birth. In fact, the most common birth injury in preemies is a brain injury. Common brain injuries include cerebral palsy, epilepsy, and ADHD.

Many of these birth injuries are caused by the lack of oxygen in the days and weeks following premature birth. This damages the brain, which is still developing its neural network, the operating system that carries neural messages from the brain to the body. Scientists have been working on detecting these injuries and are now able to use an MRI scanner to safely scan preterm babies to detect brain injuries early on. However, scientists are still at a loss on how to prevent or even repair these birth injuries.

While Armstrong’s comments were meant as a condemnation of the Affordable Care Act’s effect on employers, they serve as a starting point for a discussion on premature infants and the need for increased prevention and treatment options of birth injuries associated with preemies.

If you or a loved one gave birth to a premature infant that subsequently suffered a birth injury, please do not hesitate to contact Levin & Perconti to review your case and discuss your options.

See Our Other Blog Posts:

Federal Government Finds that Researchers Did Not Properly Inform Parents of Risks to their Premature Babies

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February 12, 2014

Birthing Injury Caused to Mother Ruins Career

by Levin & Perconti

Amy Herbst filed a lawsuit in federal court against the federal government Monday for negligence. The new mother is alleging that her digestive and reproductive systems are permanently damaged by a faulty operation performed during childbirth.

Herbst was a popular mezzo-soprano opera singer in Nashville who worked for Nashville Opera Company. She is also an Army wife who was living at Fort Campbell with her husband at the time of the incident.

Herbst checked into the Blanchfield Army Community Hospital at Fort Campbell, Kentucky in February of 2012. During the second stage of labor, the baby’s shoulder became stuck, obstructing delivery. To avoid an instance of Erb’s Palsy, a nurse-midwife performed an episiotomy to aid in delivery.

An episiotomy is a cut a doctor or nurse makes to the perineum, the space of skin between the vagina and anus. An episiotomy was done to help to widen the delivery area and prevent muscles and skin was later tearing. Doctors once believed that episiotomies were beneficial during child labor because straight cuts are easier to stitch than jagged tears and because they believed women would experience less pain and fewer pelvic-floor complications. However, recent students have shown that these doctors were incorrect in their assumptions and that episiotomies are in fact associated with more pain, greater tears, and incontinence.

Without telling Herbst about the complication or procedure and without obtaining consent, the nurse performed the episiotomy. Following childbirth, the nurse then repaired the cut with sutures. While episiotomies are common, there are other safer alternatives.

Not aware of the emergency procedure that had been performed on her, Herbst later was released from the hospital. However, she began to experience incontinence and excessive flatulence. Confused and alarmed, she returned to Blanchfield Army Community Hospital for a follow-up. Another nurse told Herbst about the episiotomy and informed Herbst that the original nurse-midwife was unable to successfully repair the incision.

Herbst sought a second opinion from a colorectal surgeon at Vanderbilt University Medical Center. This surgeon told Herbst that she would need additional surgery to repair the damage. Due to the nature of the injury, Herbst may also need to have reconstructive surgery redone multiple times. There is no guarantee that surgery will reverse the side effects of the injury. In addition, all future pregnancies will have to be delivered using a Cesarean section. Due to the complications and embarrassment of her injuries, Herbst has been unable to continue to work with the Nashville Opera Company.

Herbst is suing the Army hospital for $2.5 million in negligence, pain and suffering, embarrassment, and loss of income. Herbst is able to sue the federal government through the Federal Tort Claims Act because an alleged tortious act that caused damage was performed by a federal employee.

According to Herbst’s attorney, “At no time was she asked to consent, nor did she consent, to the performance of an episiotomy.” He continued, “There seemed to be an assumption they didn’t need to involve the patient in the decision making and they were completely wrong, as a matter of law and social responsibility.”

If a doctor or nurse performed a procedure during labor without informing you or getting your consent, please contact Levin & Perconti today.

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February 3, 2014

$32 Million Jury Award to Brain Damaged Girl

by Levin & Perconti

The term medical malpractice may invoke imagines of doctors failing to perform their duties consistent with a reasonable standard of care. However, some may not think about the wider group of personnel involved in medical care, particularly in a hospital setting. Not only are doctors subject to malpractice claims, but nurses are as well, since nurses are also expected to perform with a certain standard of care with patients.

In January 2014, a jury awarded $32 million to a girl born with brain damage as a result of the negligence of two of the nurses at the hospital during the birth. It is reportedly one of the highest jury award in state history. The trial lasted about two weeks, and the jury included eight men and four women. The hospital does have the option to appeal the decision, although nothing in that regard has yet been done.

Birth Injury Case
Lily Ciechoski, now 4 years old, suffers from spastic quadriplegic cerebral palsy, caused by brain damage suffered during her birth. The baby’s heart rate dropped dramatically most likely as a result of a problem with the umbilical cord, which failed to allow sufficient oxygen to reach her brain. The Lily’s mother testified that while the two defendant nurses observed this decrease in heart rate, they did not notify the doctor when it occurred. It was not for another 12-13 minutes until the doctor entered the mother’s room that she immediately discovered the problem and immediately moved to perform an emergency cesarean section to bring the baby out. However, as the mother testified, staff could not locate a supervisor for several more minutes, and could not locate an anesthesiologist for another several minutes after that. Thus the baby was delivered well over a half an hour since her heart rate dropped. Expert testimony revealed that had they been able to deliver Lily 15-17 minutes earlier than her actual time of birth, the brain damage would have been minimal or may not have even occurred. However, the extended time of oxygen deprivation and the drop in heart rate led to the permanent damage.

Lily’s condition now limits her ability to move, as she must cope with frequent spasms in her arms, legs and neck. She struggles to talk and to walk. While nothing can change circumstances for Lily in this horrible case where a matter of 15 minutes may have been the difference, the $32 million award will assist her in paying for medical needs throughout her life.

It is terrifying to think about anything going wrong with a birth, but unfortunately it takes tragic cases like this one to remind us of the risks associated with medical procedures and practices. It is also a reminder that not only doctors, but entire staffs are expected to conform to reasonable standards of care. For those who have given birth to children with medical conditions that may have been caused by the negligence of doctors, nurses or any other hospital personnel, it is important to know what your options are and that malpractice law also applies to childbirths like any other medical procedure. Such suits can never change the damage, but can give victims the resources so they can get the support they need as they live their lives.

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January 30, 2014

Cesarean Birth Rates on the Decline

by Levin & Perconti

For the first time in 6 years, Cesarean birth rates are on the decline. A CDC study reported that Cesarean sections declined nationally by 2% in 2012. First-time Cesarean birth rates had increased each year between 2006 and 2012. However, according to 19 states that reported to the CDC in 2012, only 21.9% of first-time births involved Cesarean sections. This represents a return to the 2006 rate, and health advocates are hopeful this decline will continue.

Women who have Cesarean sections for their first births are likely to seek Cesarean sections voluntarily for all subsequent births. In fact, only 10% of women who had Cesarean sections for their first births have a vaginal birth for their second or subsequent births. About 33% of all births in the United States are Cesarean sections, approximately 21.9% of which are first-time births.

Recently, health officials and advocates have worked to curb interest in voluntary first-time Cesarean sections, and advocates are pleased with the CDC’s findings. Risks of birth injuries and infant mortality rates increase with Cesarean sections. In fact, the risks of pregnancy complications and infant mortality increase with each subsequent Cesarean. Health advocates have been working over the last several decades to decrease interest in Cesarean sections, touting the dangers of the procedure.

Cesarean sections are more traumatic for the baby, increase the risk of injury to the mother, and increase the risk of birth injury and death for the baby. Potential injuries to the mother include infection, excessive bleeding, blood clots, prolonged recovery time, and scarring. Potential birth injuries to the baby include stillbirths, oxygen deprivation, injuries such as brachial plexus injuries, breathing problems, and increased need for intensive care. According to Dr. Mitchell Maiman, “Cesarean should only be resorted to when it’s necessary.”

Obstetricians, despite knowing the risks, have been pushing for more Cesarean sections for several reasons. First, malpractice lawsuits are on the rise related to birth injuries that occur during vaginal births, and doctors, out of fear of malpractice suits, prefer Cesarean sections. Second, Cesareans are relatively fast when compared to vaginal births. During vaginal births, obstetricians must stay with the mother for hours during delivery, and often times, due to complications, an emergency Cesarean is ordered anyway. Many malpractice suits originate from these complications and a failure of the doctor to order a Cesarean sooner. Many doctors try to bypass the long ordeal of a vaginal delivery and the need for an emergency Cesarean by ordering a Cesarean from the start.

According to Dr. Maiman, "After decades of climbing, there seems to be a hold to it. But we could do a lot better." However, some states have seen dramatic declines. While the national average in 2012 was a 2% decline, Delaware, New York, North Dakota, and Oregon saw decreases in Cesareans ranging from 5% to 10%. Utah’s Cesarean rates fell by an astonishing 15%.

In addition, the closer the baby was to full term, the more dramatically Cesarean rates dropped. For instance, babies born at 38 weeks saw the biggest drop in Cesarean rates.

Health advocates hope that putting financial pressure on hospitals regarding Cesareans, as well as changing medical malpractice laws, could lead to an even further reduction in Cesarean rates.

If you or a loved one suffered a traumatic birth injury, either due to oxygen deprivation or other birth complication, please do not hesitate to contact Levin & Perconti to discuss your options.

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