Symposium Outlines New Methods of Managing Risk in Impaired Newborn Cases

The combined use of new technologies and traditional guidelines is helping to replace the myth that "bad labor or delivery makes a bad baby" with the concept that a "bad baby makes a bad labor or delivery."

New capabilities, together with an increased focus on observing patient history, the placenta, and a newborn’s physical features, are helping to resolve impaired newborn claims more quickly. Diagnostic techniques presented at "New Technology and the Impaired Newborn," a 1994 symposium sponsored by The Doctors Company, remain useful in distinguishing between congenital abnormalities and birth injuries.

Speakers at the symposium, A. James Barkovich, M.D., radiologist; Trevor Macpherson, M.D., pathologist; and Aubrey Milunsky, M.D., geneticist, presented a program on diagnostic technologies that help distinguish between congenital abnormalities and birth injuries. The audience of The Doctors Company defense attorneys and claims representatives from across the nation, as well as guests representing other medical malpractice insurers, shared findings that benefit the entire industry.

The following summarizes useful information for cases that could lead to "bad baby" claims — including guidelines for action by attending physicians and assistance with differentiating between congenital anomalies or birth injuries. These guidelines do not, however, outline health care management of impaired newborns.

Maternal Considerations

Obstetricians have struggled with defending "bad baby" claims, increased malpractice premium rates, public scrutiny, and the burden of blockbuster plaintiff verdicts for many years. Such outcomes are based on assumptions that "bad babies" are the result of mismanaging the birthing process or, at the very least, poor prenatal care. The evidence, however, undermines these conclusions.

Significant clues to identifying a potentially impaired newborn are found in the maternal history, physical examination, and ages of the mother and father. Clues may also exist in paternal and other family members’ histories. The presence of any one of the following conditions can lead to an impaired baby:

• amenorrhea
• infertility
• recurrent spontaneous abortion
• intrauterine growth retardation
• antepartum hemorrhage
• polyhydramnios
• oligohydramnios
• fever
• presence of toxins
• use of drugs or alcohol

A mother’s history or the presence of diseases such as diabetes mellitus, epilepsy, myotonic dystrophy, or systemic lupus erythematosus is significant. A physical event, such as an automobile accident, might cause a baby to be deprived of oxygen or the placenta to be injured. Evidence suggests that a normal fetus can be without oxygen for up to 15 minutes in uterowithout signs of hypoxic injury.

Other signs and symptoms that might indicate congenital problems include the appearance of any of the following in the mother:

• tuberous sclerosis (characterized by white spots on the mother’s legs during pregnancy) or enamel pits on her teeth
• hypopigmentation
• abnormal ears, including but not limited to: placement low on the head, smooth with minimal normal ear convolutions, and cup-shaped or deep-creased lobes
• circular pigmented skin patches on the back
• port wine or other skin-color markings
• abnormal hair patterns, such as swirls
• low hairline
• evidence of any other genetic syndromes

Symmetrical and Asymmetrical Anomalies

Symposium experts noted that babies born with symmetrical abnormalities or symptoms can be assumed to have a congenital basis for their anomalies. Conversely, infants with asymmetrical abnormalities may have incurred trauma of some type. Trauma can be traced to either the birthing process or an event in utero.

Geneticists generally agree that a baby born with three or more congenital anomalies runs a higher-than-usual risk of mental retardation. Such abnormalities include the absence of finger and hand creases, unusual fingerprints, and the same group of maternal ear abnormalities previously described.

Changes in an infant’s facial features can be traced to brain injury and may or may not be related to birth trauma. Abnormal PKU, diagnoses of toxoplasmosis, rubella, cytomegalovirus, and herpes indicate congenital problems—not birth injuries.

Delivery Problems

Perform a complete and thorough physical examination on every newborn. When indicated, diagnostic testing should include, but not be limited to:

• CT or MRI to distinguish asphyxia from congenital abnormalities
• lab studies, such as high-resolution chromosome analysis
• pathological analysis, both gross and microscopic examination of the placenta

In addition, close evaluation of the medical history of the newborn’s mother, father, grandparents, aunts, uncles, and cousins can provide significant information for evaluating the causes of impairment.

Role of Radiology

Radiology tests can be critical in determining the genesis of newborn impairment. If a CT of the brain performed within the first four days after birth is normal, assume there is no birth injury. If the CT is abnormal, repeat scanning when the child is between 18 and 24 months old to further identify problems.

Because most brain abnormalities are evident by age 18 months, it is also wise to perform an MRI to determine brain development and identify the impairment.

Contributions From Pathology

Be certain a protocol is in place for delivery room nursing personnel to conduct gross examination of the placenta. To ensure consistency of application, make sure a written procedure also exists in the birthing center for handling the placenta and umbilical cord and in the pathology department for placental examinations.

Gross examination of the placenta can help determine:

• whether the placenta was expelled intact
• if gross examination revealed any abnormalities
• if there was a placental lesion, what was its age? Where was it located?
• if the placenta was infected
• where the cord was attached on the placenta
• whether the cord was obstructed
• if the cord was infected (indicating a long-term problem)

Risk Management Issues

Symposium presentations reinforced that the importance of initial and subsequent prenatal examinations cannot be overemphasized. In addition to performing detailed physical examinations, prompt identification of high-risk mothers is obtained from conducting thorough medical histories—including genetic histories of pregnant patients and their partners. The examiner should observe the entire patient and not just her abdomen. Acute listening skills are vital, as many patients will reveal significant information in casual conversation.

Written patient instructions should include questions designed to elicit information that otherwise might not readily come to light. The probability of litigation over an impaired newborn decreases when physicians watch for signs that suggest genetic abnormality and patients are taught the symptoms and signs of high-risk pregnancy problems. Appropriate counseling also decreases liability.

Training in placental examination should be included as part of educating obstetrical nursing personnel. Initial gross assessment by nurses, including evaluation and documentation of placental presentation, helps pathologists analyze whether the:

• placenta delivered as "shiny schultz" or "dirty duncan."
• placental edges were all intact.
• placenta was larger or smaller than normal.
• cord was knotted or twisted.
• cord was abnormally long or short.
• cord or placenta had an unusual appearance.

Such examination may prove a deciding factor in determining whether an abnormality is congenital or a result of a birth injury.

Alerting the Family

Once congenital anomalies are identified in family members or their newborn, tactfully notify the family as soon as possible. Present the "what, when, and why" related to the anomaly in factual and easy-to-understand language, without judgment or accusation:

• Address the family’s questions and concerns.
• Disclose all information known about the congenital anomaly.
• Help the family accept that an abnormality was predetermined and not the result of birth injury.
• Refer the family for counseling and/or surgical intervention.

Summary of Symposium Guidelines

Developing clinical guidelines based on the following points can help provide consistent, optimal medical care for impaired newborns. These infants should automatically receive appropriate observations, tests, and examinations.

To ensure that all necessary specialties are represented, clinical guidelines must be multidisciplinary. Key recommendations are:

• Do not assume birth trauma until congenital anomaly has been ruled out.
• Obtain complete and thorough medical histories of the entire family, including close observation of family members whenever possible.
• Instruct medical personnel to promptly evaluate, analyze, and most importantly, document the scenarios of difficult labors and deliveries.
• Have documentation include the presence or absence of positive or negative findings for both mother and baby.
• Begin the post-event testing and studies of impaired newborns as soon as possible.
• Offer counseling and/or referrals to the family as soon as potential or actual genetic defects are identified.
• Utilize all appropriate and available ancillary resources both within the hospital or birthing center and in the community.
• Maintain close contact with an impaired infant’s parents to ensure adequate follow-up care.
• Remain reasonably accessible to an infant’s parents to answer their questions and identify other problems that might occur.

J4205 12/99

Updated: December 1999 Originally Published: June 1998