Litigating Birth Brachial Plexus Cases in Canada
This post was written by Andrea Girones:
Below is the paper that Andrea Girones recently presented to the Ontario Trial Lawyers Association Medical Malpractice Caucus. Andrea Girones exclusively represents injured clients, particularly children injured at birth.
Birth Brachial plexus injuries (or BBPI) are a common source of obstetrical malpractice litigation. An otherwise healthy, full term baby can be left with a paralyzed arm and numerous other complications if the delivering doctor is negligent in dealing with the obstetrical complication known as Shoulder Dystocia. Shoulder Dystocia is a complication that occurs at the end of labour, just as the baby is being delivered.
This paper will briefly address the basics of a BBPI medical malpractice case and demonstrate some plaintiff lawyer tips and techniques to get around the basic defences that have been developed by obstetricians in the US, UK, and Canada. Unfortunately, the more plaintiff lawyers learn about these cases, the more the medical community pursues research and position papers that try to minimize legal liability.
In 2014, the American College of Obstetricians and Gynecologists (ACOG) published what they claimed was a definitive review of the medical literature surrounding the origins and causes of BBPI. This document will form the basis of most doctor defences in BBPI cases. It is entitled “Neonatal Brachial Plexus Injury” and reading it and studying it is the key to fighting these cases.
After a brief introduction to causes of BBPI, I will review the main issues that the plaintiff lawyer will face when dealing with the ACOG publication.
What is the mechanism of a BBPI?
Brachial plexus injuries caused at birth have a similar mechanism. In a nutshell, these injuries typically occur as follows:
a) There is a large baby being delivered vaginally.
b) At the end of labour, the head is delivered but the anterior shoulder of the baby gets wedged behind the mother’s symphysis pubis bone. The baby cannot be delivered simply by having the mother push the baby out with contractions.
c) This is a medical complication known as “Shoulder Dystocia”. The clock begins to tick. There is only so much time to get the baby out before the baby can asphyxiate.
d) The doctor/nurse/midwife panics and pulls forcefully on the head to deliver the baby. Instead, medical personnel should have performed certain well established “manoeuvers” to resolve Shoulder Dystocia. Typically, the manoeuvres involved re-arranging the mother or rotating the baby’s shoulders to reduce the diameter of the baby’s torso.
e) The pulling action rips and tears away at the brachial plexus nerves sometimes even pulling them from their roots in the spinal cord, causing permanent damage to the child’s arm, shoulder, hand, and wrist.
Why is Shoulder Dystocia so critical?
Shoulder Dystocia almost always precedes a permanent BBPI. Whenever there is a large baby descending through the birth canal, there is a possibility that the baby’s shoulder, during the natural rotation as the baby descends through the birth canal, may get stuck along the way. Shoulder Dystocia occurs near the very end of labour when the head is able to be delivered but, due to the size of the baby or a malposition of the baby in the birth canal, the shoulder will not emerge, thereby delaying the birth. Typically, the anterior shoulder is wedged behind the mother’s pubic bone. Sometimes it is the posterior shoulder that is wedged in the sacral promontory.
The doctor is alerted to the condition of Shoulder Dystocia by something called the “turtle sign”. This is when a baby’s head is delivered with a contraction, then retracts back into the birth canal. The turtle sign is an ominous sign as it is indicative of a medical emergency. Shoulder Dystocia is every obstetrician’s nightmare. The baby can potentially be asphyxiated if the body cannot be delivered quickly. It is estimated that the baby must be delivered within 5-7 minutes to avoid brain damage.
However, while there is a clock ticking, this is not an excuse for dealing with Shoulder Dystocia in a rash, panicked, or violent manner by pulling the baby out. The worst thing you can do is pull on the head! Imagine you are leaning your shoulder against a doorway in your home, and then someone pulls your head towards the other shoulder. You can feel the stretch between your neck and shoulder. This is how the brachial plexus nerves are damaged.
Instead of strong traction or pulling, doctors are trained to perform certain manoeuvres that have traditionally been very successfully in resolving Shoulder Dystocia. The manoeuvres involve rotation with a delivered posterior arm, turning the baby, and curling the shoulders inward in order to reduce the diameter of the baby. Another manoeuvre, called the McRoberts manoeuvre, involves pulling the mother’s knees back towards her ears, which has the effect of moving the pelvic bones and allowing the shoulder to be delivered. A doctor may also deliver the posterior arm, which will allow rotational forces to deliver the anterior shoulder. All of these manoeuvres can typically be performed in 2-3 minutes.
If time is very tight, one can also perform two more extreme manoeuvres: reaching in to break the baby’s collar bone, or pushing the baby back into the mother to prepare for a C-section. The idea behind breaking the collar bone is to reduce the diameter of the baby’s torso. A broken collar bone will heal fast and is better for the child than a permanent brain injury. This is why you often see an x-ray of the clavicle after a Shoulder Dystocia delivery.
Finally, a doctor can try to push the baby back up into birth canal to perform a C-section. This is called the Zavanelli manoeuvre and carries many risks; it is a last ditch option. That being said, is it estimated that 95% of Shoulder Dystocia cases can be resolved with the McRoberts and rotational manoeuvres.
Shoulder Dystocia cannot be accurately predicted nor prevented. The ACOG paper and research is clear on that. However, once it appears, it is incumbent upon the doctor to deal with it in an appropriate manner so as to avoid a permanent BBPI.
Relationship of BPPI with Big Babies
Shoulder Dystocia is usually associated with a big baby. Although Shoulder Dystocia cannot be accurately predicted, there are many, many signs that a prudent obstetrician thinks about regularly in their practice. Any time there is a large baby expected, an obstetrician should be thinking about Shoulder Dystocia and be prepared in case it happens. Also, a mother who has a variety of risk factors for a large baby should be counselled on the risks that come with a big baby, including Shoulder Dystocia and BBPI. This will go toward the informed consent issues in the case, and the issue of whether a mother should have been offered a C-section.
When should one expect a big baby? Here are some red flags:
1) A big mom or excessive weight gain.
2) A large-for-date baby, either by external measurement or by ultrasound. You will hear from the defence experts that neither method is 100% accurate for predicting large babies. Maybe so, but doctors take these measurements for a reason, and that is to prepare for a large baby. Every OBGYN will give you this admission.
3) Diabetic mom, either pre-pregnancy or pregnancy-induced. These moms have difficulty with sugar control and are more likely to have very large babies.
4) Previous large babies, previous Shoulder Dystocia, or if mom herself was a big baby.
What exactly is damaged?
The brachial plexus is a bundle of nerves that exit from the spinal column at the C5, C6, C7, C8, and T1 vertebrae and innervate the shoulder, arm, elbow, wrist, and fingers. When these nerves are damaged or torn apart, the baby’s arm no longer functions and slowly begins to shrivel away. The exact disability will depend on which nerve endings are damaged.
When the brachial plexus nerves are damaged, you will immediately see a child who is unable to move their arm at birth. It is important to remember that many birth brachial plexus injuries are transient especially to the C5 and C6 roots. The brachial plexus is intended, biologically, to be stretchy at birth. A transient brachial plexus injury will typically heal within a few months.
It is the brachial plexus injury that persists at six months, at nine months, that begins to concern the clinicians. If the injury persists beyond 12 months, there is a very high likelihood that the injury is permanent and that no further recovery will occur. Often, these children will be referred to a surgeon for nerve grafting. Without nerve grafting, at around 24 months of age, the nerves will begin to degenerate and the arm will start to shrink. A permanent brachial plexus injury is usually the result of severe damage to the nerves of the brachial plexus.
How serious the damage is can be pretty hard to say without surgery. Nerve conduction tests can be done on a baby and if the damage is serious then you will probably be able to get some results. However, for the purposes of a lawsuit, you really need surgery.
There are some surgeons who will attempt a nerve graft to try to get some movement and nerve innervation back to the brachial plexus, usually performed where there is severe damage. Once the surgery is conducted, the operative report often gives you information that is critical to a successful brachial plexus case.
Put in simple terms, the worse the identified injury is, the better case you have. The surgeon will describe the nerve damage as falling generally into the four categories below:
• Avulsion – this means the nerve has been pulled out from the spinal cord and has no chance to recover.
• Rupture – this means the nerve has been stretched and at least partially torn, but not at the spinal cord.
• Neurapraxia – this means the nerve has been gently stretched or compressed but is still attached (not torn) and has excellent prognosis for rapid recovery.
• Neuroma – this refers to a type of tumor that grows from a tangle of divided axons (nerve endings), which fail to regenerate. The prognosis will depend on what percentage of axons do regenerate.
In other words, if you have avulsions, you have a strong case but if you have neuromas, your case will be much tougher and you may run into causation issues.
Sounds easy right? Here are some of the most common challenges facing plaintiffs in these cases.
i) Damages can be limited compared to other birth injury cases.
Unlike a cerebral palsy/birth asphyxia case, there usually is no brain damage and no other physical problems beyond the BBPI. Depending on the severity of the injury, many BBPI victims lead almost totally normal lives. However, many others live a life with one arm, which prevents them from cleaning themselves, doing up shoelaces and ties, feeding a baby with a bottle, and many other daily activities.
Because these children have intact brains, there is usually an opportunity for them to earn an income, and lead a relatively normal life. What they typically require in terms of monetary damages are medical care costs and housekeeping/attendant care costs. Our firm has done a number of these cases and we are trying to push the CMPA up in damages in these cases because of the real medical issues that tend to develop for these children as older adults. One should also investigate the psychological damage on these children, which is often significant.
The liability fight is where you will spend a lot of money on experts so it is worthwhile to be continually re-assessing your liability case.
ii) The general bias towards doctors
These cases tend to become a credibility battle. A charming, lovable, caring obstetrician stands a very good chance of having a jury believe his story. His/her story will always be “I pulled very gently”, “I have no idea what happened”, and “the injury must have occurred in utero”. We have never seen a hospital birth record where the doctor states “I pulled too hard”. It is always “I used gentle traction”.
It is also important to avoid any inference that the parents are trying to profit from their child’s disability.
Judges are not immune to this inherent bias towards doctors either. They relate to fellow professionals. Even the standard jury charges for medical malpractice cases are horribly tilted towards letting a doctor, who made an “honest mistake”, off the hook.
iii) The state of the medical literature
This is where the fun really begins. In 2014, the American College of Obstetricians and Gynecologists published the policy booklet on neonatal brachial plexus policy. It purports to be a comprehensive review of the latest scientific thinking. It is an attempt by obstetricians to develop alternate theories to explain neonatal brachial plexus injury.
To summarize the policy book in this paper is impossible. I recommend you obtain a copy and read it, ideally months before your brachial plexus trial, and review the associated literature. What is critical to understand is how the policy paper relies on studies that have varying levels of scientific accuracy, as well as studies that only deal with transient brachial plexus injury as opposed to the permanent kind which tends to carry legal liability. What I will do, however, is flag a couple of the myths that this policy paper purports to “prove”.
1) That Shoulder Dystocia is not associated with BBPI
It is well recognized that Shoulder Dystocia is underreported. If a doctor used excessive traction to drag a baby out, they may not have recognized that there had been Shoulder Dystocia prior to delivery. Thus there is no note in the birth records, nor is this case of BBPI used in the medical literature as being related to Shoulder Dystocia. There are numerous studies actually show that permanent BBPI is almost always associated with Shoulder Dystocia.
2) That there are” in utero” causes of BBPI
Birth brachial plexus cases have long been considered cases where the “injury proves negligence”; that is, but for the negligence of the doctor, these injuries do not exist. Pediatric neurology literature only ever views these injuries as caused by “physician induced traction” at the time of birth. However, because these cases also impact obstetricians and their professional reputation, the obstetrical medical literature has become obsessed with “other causes of BBPI” because of the medico-legal concerns.
The “in utero cause” is the heart of all defences in BBPI cases and is based on pseudoscientific articles published by Gherman, Lerner, and Ouzounian. If you come across an article by one of these doctors, you can best assume it cites in utero, natural forces of labour, or non-Shoulder Dystocia causes for neonatal BBPI. A careful read of these articles will show that many of them are based on re-reviewing older papers and reinterpreting the information.
Above all else, you must counter the implicit defence argument that the ACOG paper is science, as opposed to junk science and a medical-legal treatise. This is the trap that even plaintiff experts can fall into.
With proper preparation, we can bring to light these pseudoscientific myths and help our clients, who were traumatized at their birth, lead better quality lives.