California Obstetrical Malpractice Lawyers and Birth Injury Attorneys Explain the Legal Strategies for Preparing and Presenting Cerebral Palsy, Brain Injury, Brain Damage, Erbs Palsy and Brachial Plexus Injury Cases.

The following is an article published by California obstetrical malpractice lawyer, Ray Henke, summarizing our approach to birth injury litigation. For the more complete discussion of our obstetrical malpractice attorneys approach to birth injury cases please consider our "Obstetrical Malpractice Lawyers and Birth Injury Attorneys" page.

Whenever a baby is born or is discovered subsequent to birth to suffer delayed development or evidence of cerebral palsy, brain injury or brain damage, or paralyzing symptoms of Erbs palsy or other brachial plexus injury, the California obstetrical malpractice lawyers or birth injury attorneys should always conduct the appropriate investigation to determine whether the injury was caused by medical or hospital employee negligence. The following discussion also applies to obstetrical malpractice and birth injury cases generally, including in most other states than California, although the parent should contact appropriately qualified counsel in the state where their child was born to assure that the advice they receive is absolutely accurate under the applicable state laws. For example, under California law, a medical malpractice case must be supported by the testimony of a licensed and qualified medical practitioner. This may not be required by the laws of every state, but whether required or not under state law, we would urge that it is an element of good legal practice for medical malpractice attorneys generally and obstetrical malpractice lawyers in particular.

Sometimes birth injuries can occur in the absence of obstetrical malpractice or hospital negligence, so in most cases it cannot be inferred by the parent or attorney with certainty that the obstetrician, physician or other health care practitioner "fell below the standard of care" solely because the child suffered serious brain injury, cerebral palsy, or even a brachial plexus injury. The first step in the investigation undertaken by obstetrical malpractice lawyers is to interview the mother and others present during the prenatal doctor visits, the delivery, and post delivery time periods, to gain their information with regard to the indicators of high risk, the medical events, including prenatal treatment and discussions with the physicians, the events occurring before, during and after the delivery, and the parents conclusions, impressions and even speculation as to aspects of the medical care that may have contributed to the child's birth injury.

In the process of this inquiry into the parents' and other's recollections of the potentially significant medical events, the California obstetrical malpractice lawyer will be aware of the child's diagnosed birth injury and therefore will be able also to ask specific questions with regard to the common medical errors the family or friends might have observed that would be most likely to be associated with the particular birth injury. For example, brain injury sustained during the delivery process may occur as the result of hypoxia, or oxygen deprivation, and so the obstetrical malpractice attorney may ask the mother, father and others present during the delivery if a fetal monitor was employed, and whether the hospital staff and physicians present during the delivery process were observed to discuss, for example, "fetal distress," and then what they observed in terms of the hospital staff and physician response to the fetal distress. The critical time period for inquiry would be the time period between when the family members first noticed this concern among the health care providers through the time the baby was delivered by cesarean section or other action taken by the obstetrician or hospital staff to relieve the fetal distress. In other obstetrical traumatic brain injury cases the malpractice lawyers may want to inquire about whether the physicians were required to manipulate the baby's head, possibly with forceps, in the process of extracting the baby from the birth canal.

In an Erbs palsy or other brachial plexus injury cases, because these injuries commonly occur because of the baby's presentation with shoulder dystocia, where one of the baby's shoulder's becomes lodged behind the mother's pubic bone, the obstetrical malpractice lawyers will often want to inquire whether they heard the physicians or hospital staff mention the words "shoulder dystocia" or what obstetrician's call the "turtle sign," a term they use to describe the resemblance to a turtle attempting to pull its head back into its shell, with the baby's cheeks commonly bulging. Erbs palsy, a type of paralysis affecting the shoulder and arm, as well as other brachial plexus injuries, most commonly result from the obstetrician's failure to follow the standard of care maneuvers to free the baby's shoulder from its entrapment behind the mother's pubic bone without excessive use of force. One benign procedure, which is the first procedure that should be used by obstetricians as soon as shoulder dystocia is recognized, is the McRoberts procedure. The obstetrical malpractice attorneys and birth injury lawyers should be aware of the obstetrical standards of care to be able to elicit all the information known to the mother, father and other family members that may be useful in their subsequent investigation of the birth injury case. For more information you may wish to consult California Obstetrical Malpractice Lawyers and Birth Injury Attorneys on the Investigation of Cerebral Palsy, Brain Injury, Brain Damage, Erbs Palsy and Brachial Plexus Injury Cases At that page we also discuss the California obstetrical malpractice lawyers investigation and interpretation of the prenatal, hospital and obstetrical records in birth injury cases involving brain injury and brachial plexus injury cases, as well as physician specialist expert review of the medical records as essential to the obstetrical malpractice lawyers preparation of the birth injury case.

Very briefly, following the aspect of his investigation in obtaining the recollections of the mother, father, and others present during the relevant prenatal, delivery and postnatal periods, the obstetrical malpractice lawyers will then obtain and review the medical records. Often times birth injury lawyers will be able to recognize indications in the medical records suggesting that the hospital staff or obstetrician failed to comply with the applicable standards of care. But often too, even for the most highly experienced California obstetrical malpractice lawyers there will be aspects of the information contained in the records that may be beyond their expertise to interpret. For example, analysis of the fetal heat monitor strips usually requires the interpretation of qualified medical specialists to determine whether there was fetal distress for a time period sufficient to account for the child's brain damage. In California it is a legal requirement that appropriately qualified medical experts be consulted prior to filing a medical malpractice claim, and our California obstetrical malpractice lawyers and birth injury attorneys certainly consider that it is essential to the proper preparation of every medical malpractice case, and in particular every obstetrical malpractice case, that highly qualified medical experts be consulted early on both with regard to the failures of the involved physicians to conform to the obstetrical standards of care, and to establish that the obstetrical negligence was the "cause" of the baby's birth injury. All appropriate expert consultations should also certainly be obtained prior to taking the depositions of the obstetrician, other physicians and the hospital staff present during the hospitalization leading up to the delivery and in the immediate postnatal period. The specific criticisms of the experts are essential for the obstetrical malpractice lawyers in order to properly frame their deposition interrogation of the involved health care providers.

Obstetrical malpractice cases also commonly involve serious or catastrophic birth injuries that may require a lifetime of medical expense and loss of earning capacity measured over the child's "work life expectancy." The California obstetrical malpractice lawyers and birth injury attorneys therefore must also prepare to present at settlement conferences and at trial the evidence of the child's injuries, his pain and suffering, his loss of enjoyment of life damages, his past and future medical expenses and future loss of earning capacity to assure that the child will be compensated for the full measure of his or her damages. This involves again the preparation and presentation of the testimony of a number of medical experts, as well as "life care planners" to assess all of the future medical expenses that the child is likely to incur during every month of the remainder of his life. The California obstetrical malpractice lawyer in serious birth injury cases will also engage "vocational rehabilitation experts" to assess the range of occupations the child will be disqualified by his or her injuries to enter and those occupations which he or she might be capable of entering, in arriving at the "net lost earning capacity," as well as forensic economists to apply medical cost inflation statistics and wage growth statistics and discount the totals of medical expense and earnings losses to present dollar figures.

The preparation and presentation of birth injury cases is a complex legal endeavor for the obstetrical malpractice lawyer, but these are legal tasks for which malpractice lawyers in every state are highly experienced and appropriately qualified to undertake and perform well. Obstetrical malpractice attorneys cannot turn back time and reverse the brain damage or paralysis of the child, but we can do our very best to assure that the child will have the funds to assure that he receives all the medical care that he will require over the course of his life, and permit the child and his or her parents the dignity of choice in medical options and the security that the child will be well cared for after the parents are no longer alive to help manage the child's care.

Raymond L. Henke
Principle trial attorney, California Obstetrical Malpractice and Birth Injury Lawyers Law Group