How Medical Malpractice Applies To Childbirth And Issues Arising From Oxygen Deprivation.

Medical malpractice deals with a very short time during the actual birth of the child.

If a problem with the baby pre-exists that time frame, that is, if the baby develops genetic problems or other issues while in the womb, it’s not something that gives rise to medical malpractice action against the doctor. What lawyers focus on are the damages that may occur to an infant right at the time of birth, which under good, standard medical practice, should not occur and cause harm to a baby. We examine many factors.

How the baby is delivered.
We look very carefully at how the baby is delivered. We look at the time it takes to deliver a child, during the second stage of labor (after the mother has reached full cervical dilation, which is normally ten centimeters) and after that period of time we look at the indicators that concern the baby’s health. The medical profession today uses fetal heart monitors to try and assess the level of oxygenation while the baby is being delivered. It is during this crucial time, when the baby is in the birth canal, that oxygen deprivation occurs. The baby is very significantly compressed, and that is the time when we have to ensure that the baby is delivered as quickly as possible.

Fetal monitor readings.
If there is a disproportionately large baby to the size of the birth canal, we’re looking at some significant problems in getting the baby through the birth canal for a normal vaginal birth. The fetal heart monitor tells us when the baby is in distress. We know from looking at the heart monitor strip, (the printed strips that are produced from the fetal heart monitors) whether the baby is still in a normal situation, that he/she still has a normal heart rate, and the heart rate is going up and down in predictable ways. If the heart rate shows signs of severe deceleration due to hypoxia or lack of oxygen, and shock, we begin to focus on this when we look at a possible medical malpractice file.

Hospital records.
When the cases come to me, there is a real issue of severe intellectual or physical damage to the baby. Then it becomes my job to assess whether that damage occurred at the critical time during birth. We know that certain cases do give off red flags in terms of whether it’s a medical malpractice issue. When we see an oxygen debt issue, we begin our more serious enquiry into the hospital records. Those records include every single note that was written by any nurse, by any residents, or the obstetrician in charge, looking at fetal heart strips, looking at the timing of the fetal heart strips. We carefully review the records to see at what point there should have been an evaluation or that the baby should have been taken through a caesarian rather than a normal vaginal birth.

Neuroradiologists reports.
Because we already have been presented with a baby who has been damaged, we have to assess whether that damage occurred in the last hour of delivery or prior to birth. Very specialized doctors, called neuroradiologists, assess the destruction caused to an infant brain by lack of oxygen. The destruction to a fetal brain that occurs prior to birth will be evident at birth. So if they do a brain scan of an infant right after birth then another four to six hours after birth, the fetal brain will show signs of the oxygen deprivation that occurred over a period of time before birth. The brain will be smaller than normal, which is a very strong indicator that the problems the baby suffered occurred long before the birth process.

What we are looking for from the neuroradiologist is to establish the impact of oxygen deprivation at the time of birth. This cannot be determined immediately at birth, but damage will be evident 24 hours later. At that time a scan will show the brain looking abnormal and subsequent scans over the years will show signs of the brain not developing in a normal way.

Blood gas.
We also look very carefully at the blood gas as it is taken from the umbilical cord. We know the normal range that the blood gas has to be in and we analyze the blood gas analysis done at the time of birth. The Americans have looked at blood gas in placentas. They are defending these cases by suggesting that the analysis of placentas in terms of oxygen uptake is a better indicator of lack of oxygen in an infant than umbilical cord gas. We’re not there yet. But it seems that the blood cord gas is probably as good an indicator of the various levels of lack of oxygen that the baby goes through. We also know that an infant can withstand oxygen deprivation for a certain period of time. It’s only those cases that go on to have severe oxygen deprivation that result in a very severe intellectual and physical impairment in an infant. We know that the baby’s body will shut down oxygen to all organs except the brain, in a last ditch effort to save the most vital organ in the body. An expert at the hospital will review the child physically and indicate through a medical report that the child has certain problems with muscle tone and muscle function. Once we get that report, we then go through our investigation to see if we can establish when the oxygen debt occurred. If we come to the conclusion that it occurred at the time of birth, we will review the birth records to see if we think the decision should have been made to change from a normal vaginal birth to caesarian.

Apgar Scores and Seizures
We also look at Apgar scores. They measure a number of very basic functions of the baby. In normal babies, the scores range between 8 and 10 for zero, 5 and 10 minutes after birth. A baby that has been traumatized may well have Apgars at zero or zero plus one for zero, five and possibly ten minutes. The other thing that sometimes happens is seizures. Sometimes these babies go into full clonic seizures, post-birth within twenty four hours, which is also an indicator that there has been a severe oxygen deprivation situation.


If you, or someone you care about, is dealing with Personal injury law issues in the Toronto, Ontario Region, contact Strype Barristers LLP.

This article is taken from a September 7, 2007 interview with Jeff Strype LL.B., Personal Injury Lawyer with Strype Barristers LLP in Toronto , a Personal Injury Law Firm.

Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.