Cerebral Palsy Law Blog : Cerebral Palsy Lawyer & Attorney : Burke & Eisner Law Firm : Medical Malpractice Lawyers & Attorneys

In the early 1980s, Dr. Peter Rosi was criminally prosecuted in Alaska on felony charges of negligent homicide. The case involved the death of a newborn he delivered who had failed to receive the medical attention he needed in a timely manner.

Though acquitted, Rosi was found by the State Medical Board to have shown “professional incompetence” and to have “committed a serious error in judgment.”

He subsequently moved to Illinois, where he would be sued 10 times for medical malpractice. But it seems that Rosi would rather blame parents than himself for mistakes that led to brain damage and death in newborns he delivered.

“Eighty percent of complications in childbirth are psychological. Babies can be killed by a mother’s attitude,” he said in an interview.

It is unfortunate that a medical professional would turn such a tragedy around on the parents, especially a doctor who uses medical techniques that were popular “50 and 100 years ago.”

The truth is that medical negligence in the delivery room is more likely to cause brain damage and death than the mother’s psychological state, if any credence can even be given to his assertion.

In fact, medical malpractice happens all too frequently as many medical lawyers and families can attest. Every year, law firms across the country are winning cases for families of children who have been diagnosed with cerebral palsy, brain damage, and other injuries due to the negligence of a doctor or nurse.

Dr. Rosi argues that “babies die.” Yes, some do. But many babies can live with competent medical care, and everyone is entitled to at least that.

 

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Medical errors made during pregnancy, labor and delivery, and post-natal care can cause brain damage to the infant and lifelong conditions like cerebral palsy. However, the medical community has been slow to make changes toward reducing the potential for mistakes. But at a recent meeting of the American College of Obstetricians and Gynecologists (ACOG), the emphasis was on making the difficult but necessary changes.

Patient safety expert Dr. Robert M. Wachter, who addressed those in attendance, used the emergency landing of a US Airways plane in the Hudson River as an example of how standardization and training can help doctors prepare for the unexpected.

Dr. Wachter argued that the captain of that plane, Chelsey “Sully” Sullenberger, was able to remain calm during the crisis because he had trained for emergency situations using simulators and also because he immediately made it clear to his co-pilot who was in charge.

In healthcare settings, simulation and team training for unexpected emergencies is not standard but it should be, according to Dr. Wachter. Checklists, computers and standardization are all tools ob-gyns and other doctors should be using to reduce the incidence of medical errors.



 

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There has been an uproar surrounding the “Baby Shaker” application on the new Apple iPhone and rightfully so. The 99 cent application, which was removed from Apple’s online store amid the controversy, allowed users to virtually shake a crying baby into silence – and death.

Unfortunately for Apple, shaking babies is no joking matter. In fact, Shaken Baby Syndrome affects more than 1,000 babies each year in the United States and is the result of violent shaking, usually by an exasperated parent or caregiver. Infants are particularly vulnerable to shaking, and this kind of violence can cause severe brain damage, cerebral palsy symptoms and other lifelong disabilities.

Child abuse is a matter that should always be taken seriously, and though Apple has offered an apology for the application, we can only hope that the company has also learned an important lesson.


 

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Cerebral palsy is the fourth leading cause of paralysis in the United States, according to a new report by the Christopher and Dana Reeve Foundation. The report estimated that about 412,000 of the more than five million cases of paralysis in the U.S. are due to cerebral palsy.

What is cerebral palsy? Cerebral palsy is a movement disorder that can cause spasticity, paralysis or limpness in the arms and legs – sometimes the condition only affects one side or half of the body, and other times it affects all limbs.

Cerebral palsy is generally caused by brain damage and is diagnosed in thousands of infants and children each year. As with spinal cord injuries, there is no cure for cerebral palsy. However, extensive research efforts are being made to change this.

The top three causes of paralysis include stroke, spinal cord injury (which Christopher Reeve suffered) and multiple sclerosis. Additional causes include traumatic brain injury and birth defects.


 

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Lack of adequate oxygen at birth affects approximately 2 to 4 in every 1,000 babies born in the United States, and it can result in brain damage, cerebral palsy and other serious injuries to the newborn. To reduce the risk of death or disability in these infants, St. David’s hospital in Austin, Texas has started using what’s known as hypothermia therapy.

What is hypothermia therapy?
 

Hypothermia therapy has long been used to prevent brain damage in adults after they’ve suffered cardiac arrest or had cardiac surgery. Its use in infants and children is not yet widespread but involves using cooling blankets to reduce the newborn’s temperature – usually down to 92 degrees for 72 hours.

Cooling the baby’s temperature helps to reduce swelling, slow down the injury process and prevent “a cascade of events that causes cell death,” said neonatologist Dr. Frank Cho. In addition, no major side effects are associated with hypothermia therapy.




 

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Officers from Wayne County Jail in Michigan are being sued for injuries suffered by Chelsie Barker during her birth 10 years ago, and attorneys for their defense are arguing that the officers are not liable for the girl’s injuries because she had no constitutional rights before she was born.

The lawsuit filed against the officers claims that they violated Chelsie’s constitutional rights by failing to get her jailed mother to the hospital for a safe delivery. However, the defense has cited the landmark abortion case Roe v. Wade, claiming that as a fetus Chelsie did not have rights as a person under the 14th Amendment.

That argument is a stretch.  Roe v. Wade has little to do with Chelsie’s birth, a fact with which U.S. District Judge Stephen Murphy III seems to agree. The judge described her injuries as “continuous,” occurring both before and after birth and said “there is no principled reason to distinguish” between them.
 
Irreversible Brain Damage
Chantrienes Barker was taken to Hutzel Hospital shortly before Chelsie’s birth but was discharged before the baby was born. Back at the jail, Barker’s labor pains intensified. For two hours, she was left without treatment while other inmates tried to alert the guards.

Chelsie was not breathing when she was born and the paramedics did not have the equipment to resuscitate her, the lawsuit states. She was taken to the hospital, but suffered brain damage as a result of the oxygen deprivation.

Lack of oxygen can cause significant injury including cerebral palsy. In Chelsea’s case, the brain damage was so severe that she will require round-the-clock care for the rest of her life.

See also:  What is Cerebral Palsy




 

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There is much debate regarding the high number of Cesarean sections performed in the United States each year, particularly because it’s a major surgery that is increasingly chosen out of convenience rather than necessity.

Once a woman has a C-section, she is usually forced to have the procedure for subsequent pregnancies because of the risks associated with what is known as VBAC (vaginal birth after C-section). VBAC can cause uterine rupture, oxygen deprivation to the baby (which can lead to brain damage and cerebral palsy) and even death.

According to an article in TIME Magazine, 1 in 2,000 babies die or suffer brain damage after VBAC – a statistic the author cites as low. However, one case of death or oxygen deprivation is one too many and these are the types of cases that can result in a medical malpractice lawsuit. Consequently, not a lot of doctors are willing to oversee a VBAC.

To read more about the ongoing debate and some of the issues confronting pregnant women, check out the article in the current issue of TIME Magazine online.


 

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In May 2002, Dan and Lori Perseke of Minnesota went to the Ortonville Hospital for the birth of their son, Wyatt.  Unfortunately, during and immediately following his birth, something went tragically wrong.  The Persekes allege that due to negligence by Dr. Allan Ross, his staff from his Northside Medical Clinic and the nurses at Ortonville hospital, Wyatt now suffers from cerebral palsy and permanent brain damage.

The lawsuit, which originally resulted in a hung jury, was recently retried in a new venue and this time the family was successful.  

During the trial, the jury heard testimony from a dozen doctors, split equally for the prosecution and the defense.  Dr. Ross, the nurses involved and the Persekes also took the stand to give testimony of the days tragic events.

In the end, the jury ruled that there was negligence, and attributed 70 percent to Dr. Ross and the remaining 30 percent to the hospital nurses.  The jury awarded $9,566,500 in damages, most of which will be placed in a trust for Wyatt’s future expenses.  The balance will go directly to the Persekes to cover Wyatt’s medical bills and other expenses until he turns 18.

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Jaundice is extremely common among newborns – about 60 percent of all babies develop the condition, which is characterized by excess levels of bilirubin in the blood. When left untreated for too long, severe jaundice can result in a type of brain damage that causes athetoid cerebral palsy.  

Kernicterus Is Preventable

This type of brain damage is known as kernicterus and it’s completely preventable when jaundice is promptly diagnosed and treated. Over the past decade or so, however, a few factors have led to an increase in the number of kernicterus cases diagnosed each year, including:

• Shorter hospital stays
• Relaxed treatment guidelines for jaundice
• Overall decreased public concern over the dangers of jaundice (largely because it’s so common)

There are a number of signs and symptoms associated with severe jaundice, which parents should be aware of and doctors should identify:

•  Yellowish-orange skin tone
• Irritation or fussiness
• Poor feeding
• Abnormal muscle tone
• Sleep problems

In addition to cerebral palsy, kernicterus can cause mental retardation as well as hearing, vision and dental problems. This is unfortunate given that severe jaundice is often treatable with simple phototherapy, or a transfusion in more extreme cases.

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A $5.5 million settlement has been reached in a medical malpractice lawsuit filed by a woman whose son suffered severe brain damage after prolonged oxygen deprivation at birth. The damage has left the boy, now 6, unable to perform basic functions like walking, sitting on his own, feeding and talking.

“Seeing how he struggles, seeing him in a wheelchair and not being able to hear him say ‘Mom’ in English or Spanish, it’s painful. We shouldn’t have been going through all of this,” said Eva Liberato, the boy’s mother.

According to Liberato’s lawsuit, the baby’s heart rate began to plummet after she was given medication to induce contractions. A family doctor tried unsuccessfully to deliver the baby with a vacuum retractor and forceps before an obstetrician was called to deliver the baby by C-section.

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It would seem  to be true in the case of a young California boy whose troubled birth has left him with severe brain damage and cerebral palsy.  A Sierra View District Hospital  has agreed to a 4 million dollar settlement.  The obstetrician and nurse anesthetist have also agreed to a settlement but the terms of the settlement remain confidential.

Gabriela Enriquez  was admitted to Porterville Hospital on March 19th of 2006 to give birth to her first child, Jose Carrillo.  Bruce Fagel, Gabriela's attorney, said that the baby's monitor indicated that the baby was in distress over the  last several hours of labor but that those indications of distress were ignored by the nurses and obstetrician on duty.  He went on to say that by the time an emergency c-section was ordered the next morning significant brain damage had occurred from lack of oxygen.

According to Fagel, Jose has severe cerebral palsy and, while his doctors believe his intellectual development may be normal, his motor skills are lacking and he will never be able to walk or communicate normally.

Because the hospital district board is a public agency it was required to approve the terms of the settlement even  though the settlement was reached in private negotiation.  A judge also had to approve the settlement because the plaintiff is a minor.

Court records show the Enriquez/Carrillo suit against the hospital also named as defendants Dr. Jose R. Salas, a Porterville obstetrician; Janet Michelle Bailey, a registered nurse/anesthetist; and Dr. Philip Early, head of the hospital's anesthesiology department.

According to records of the Medical Board of California, Salas was placed on probation in 1999 for three years because of an accusation of "gross negligence" and "repeated negligent acts" stemming from a 1995 birth at Sierra View.

So, how does a 4 million dollar settlement become a 45 million dollar settlement?  It doesn't.  The settlement  is still a 4 million dollar settlement but the 4 million dollars will be placed in an annuity designed to provide a monthly income for the rest of Jose's life - to cover his medical needs, home care and therapy.  Over his lifetime that annuity is estimated to pay him about 45 million dollars.

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As reported in the Chicago Tribune an Aurora woman has settled her malpractice suit for fifteen million dollars.  Vanessa Jenkins had brought suit against the doctor, hospital and staff alleging that her son Cody suffered brain damage because, during her labor, the doctor used a vacuum device improperly thus causing brain damage.

Her attorneys said that her labor was uneventful until the doctor began to use the vacuum device.  Within a period of 50 minutes the device was used 18 times.  When Cody's fetal heart rate indicated that he was in distress, Cody was delivered by Caesarean section by another doctor.  By then the damage had been done and Cody was left disfigured, brain damaged and incapable of living independently.

The settlement was approved by Judge Kurt Klein in Dekalb County Circuit Court and her attorneys said this was the largest award ever reached in Dekalb County.

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