Newborn Neurological Injury and Litigation: Medical-Legal Challenges to Causation

Presented at the SickKids Brain Injury in Children conference on July 12, 2011.

Posted July 25, 2011
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Newborn neurological injury due to trauma occurring in and around birth (peripartum) is often profoundly disabling. For affected infants and their families, these injuries can be life-altering, resulting in unfathomable burdens. For health care professionals providing peripartum care, these dreaded outcomes are immensely distressing.

Neurological injury in infants may result from idiopathic causes, antenatal causes, unpreventable causes and potentially avoidable causes. The objective in the medical-legal context is to distinguish between potentially avoidable causes and all other causes.

Compensation for these profoundly injured children will be available through litigation only when it can be proved, on a balance of probabilities, that neurological injury was due to a potentially avoidable cause. This requires the plaintiff to prove that some form of intervention was required, by the applicable standard of care, and that intervention would have avoided some or all of the harm. This issue of causation is generally the most complex and controversial medical-legal issue in birth trauma cases.

This paper will focus on the medical-legal issue of causation in the context of newborn neurological injury caused by peripartum events or conditions. To appreciate the potential for contribution of peripartum conditions to poor neurological outcomes it is necessary to consider the potential impact of all other causes of neonatal neurological injury, and, on a balance of probabilities, rule those out. All of the available medical data must be evaluated together to arrive at the most likely diagnosis. It will be argued that the key to this exercise is the proper use of the differential diagnosis. It will be also argued that, generally speaking, obstetrics plays a relatively minor role in the diagnostic process.

In exploring the difficult causation issues in birth trauma cases, this paper will consider the current state of some of the important medical literature affecting causation as well as the recent development of medical views affecting this vital issue. The issues will be examined primarily in the setting of peripartum asphyxia of the term fetus.

Paper: Newborn Neurological Injury and Litigation: Medical Legal Challenges to Causation

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