Is Your Child's Birth Injury the Result of Medical Malpractice?

What is medical malpractice?
How do you know if there was malpractice?
What should you do when you suspect malpractice?
What happens when you contact an attorney?
What is going to happen in court?
Will you recover damages?
Who gets the money?

Katie is a bright, eager 15 year old who loves adventure, fast cars, computers, and girl scouting. She is one of the stars in numerous television commercials, billboards and news articles of the Amazing Kids campaign in Pittsburgh Pennsylvania. She has served as the ambassador from Pennsylvania for the Children’s Miracle Network. Katie also has severe spastic cerebral palsy as the result of a traumatic birth injury.

The events surrounding Katie’s birth are as vivid today as they were fifteen years ago. I suppose that when your child is injured to the extent that a doctor tells you that you will have to determine when to shut off life support because your daughter will not survive, it engrains every detail indelibly into your mind forever. That decision was not an option and it was then that I promised my daughter that I was going to fight as fiercely as she was for her life and that I was willing to accept her no matter what the outcome.

Betsy’s pregnancy with Katie was our fourth. All of her pregnancies had progressed uneventfully and exactly according to plan and schedule. We were the proud parents of two daughters and one son and excited about the newest addition to our family that would be arriving any day. When we arrived at the office for our weekly OB visit everything was well. I listened to the baby’s heartbeat while Betsy discussed with our obstetrician that she was tired of being pregnant and would be glad when this baby was delivered. She was 40weeks + 2days, not overdue by medical opinion but our obstetrician scheduled a non-stress test for her that afternoon at the Western Pennsylvania Hospital in Pittsburgh. We left the OB’s office and strolled the antique shops and ate lunch in the quaint Southside of Pittsburgh while we waited for our appointment time to arrive. We certainly weren’t expecting to have a baby this day.

We arrived at the Hospital at the appointed time and Betsy was fitted with the monitoring belt of the non-stress testing machine at around 1:15 in the afternoon. Everything was fine. The baby’s heart rate was 120-140 beats per minute with good variability for at least 10 minutes then without notice the heart rate dipped off of the scale. Our nurse was concerned but not worried as she rolled Betsy from side to side explaining that the baby probably moved and that she just needed to adjust the monitor. After several minutes our concern grew as a heartbeat could not be located. Two telephone calls were placed to our obstetrician at 1:35 and 1:37pm, a resident obstetrician was called and a STAT cesarean section was ordered over the telephone by our obstetrician. The testing nurse told us that Betsy was to have an emergency C-Section. Betsy was whisked onto a gurney and taken directly into the operating room which was just a short run down the hall.

I ran alongside the gurney holding Betsy’s hand but was stopped at the operating room doors by a second year resident and told that I could not go in. Minutes seemed as hours and when he re-emerged at approximately 2:00pm from the operating room he explained that they had found the baby’s heart beat which was good and that they were going to wait for our obstetrician to arrive. I explained that I was afraid that I was going to lose my wife and baby and that he didn’t have enough security in the building to keep me out of the operating room. He responded to a nurse to get me scrubs which I donned in the hallway over my clothes and went into the operating room to be with my wife.

In the operating room, Betsy was on the operating table and she explained that she had been given a spinal anesthetic. A sheet had been placed at her mid-section so that she wasn’t able to watch the surgery. I stood at her right side and could see over the sheet. A nurse began the insertion of a catheter and scrubbed her belly with bedadine. I watched the clock that was on the wall in front of me as I comforted my wife. Medical personnel stood around the perimeter of the room waiting for our obstetrician. Minutes ticked away.

Our obstetrician arrived and the medical team sprang into action. He made his incision and our daughter was born at 2:31pm nearly an hour after the STAT C-Section had been ordered.

Noticeably shaken our obstetrician said to me, “You have a son.” I replied, “No, I have a daughter.” He said that, “this was good because girls do better under these circumstances than boys”. No one offered any explanations and everyone avoided my questions.

Katie was passed to another doctor who we mistakenly believed at the time was a Neonatologist. She was dusky blue and lifeless. I watched as he cleared her airway, held her upside down and smacked her 20 to 30 times. Finally she made a faint cry as the sound of the continued smacking echoed in my head. During this period a Neonatologist arrived and relieved the Anesthesiologist who had resuscitated our baby. Katie was intibated, quickly shown to us, and taken to the neonatal intensive care unit. I watched as our obstetrician performed a tubal ligation. Betsy was then cleaned up, sponges counted by a nurse and staples put in to close the incision.

Betsy was shivering as they wheeled her to the recovery room. She assured me that she would be fine and urged me to get to the NICU to check on Katie’s condition. When I arrived in the NICU a team of doctors and nurses were attending to Katie. No one had time to speak with me. I stood and watched as they attached my daughter to a ventilator. Katie’s head had begun to swell and she was jaundice. She was placed into an isolet and had hoses and electrical leads coming out from her. Monitors and IV solutions surrounded her. She was unconscious. I was eventually told that Katie was having seizures, multiple organ failure, heart and lung problems and had been “pavulonized” or artificially paralyzed to keep her from fighting the ventilator. The Neonatologists on the unit told me her prognosis was very poor and that the outcomes for children like this were not very good. I wanted so much to hold my daughter, vowing that if she was to die, it would be in my arms. I wondered, what was I going to tell my wife?

Betsy was in her room when I caught up to her. She wasn’t permitted to get up because of having the C-Section. I was down playing Katie’s condition and deliberately didn’t mention the seizures. She was always concerned about children that had seizures; she worked on the pediatric unit of the hospital that we were at as an RN and always saw the worst case scenarios. I decided that it was best not to upset her. Her best friend was coming in to be with her and I headed back to the NICU.

My vigil in the NICU began with over 72 hours of sleeplessness as I did whatever I was permitted to do with my daughter and then some, visiting Betsy for only brief periods of time. It was during this time that one of the Neonatologists explained that Katie was not going to survive and I would have to determine when to shut off life support to her. I immediately retaliated. In my mind this was never an option. This was my daughter that I was playing with the day before as she kicked at my hand from inside of my wife. Our bond went back nine months and as difficult as it was to see her in this condition I loved this little girl more than my own life. I felt that if only I could trade places with her. I sat by her side stroking her, reading to her, talking to her, and encouraging her to never give up. Telling her that she was going to come home with me and that I would take care of her forever.

Katie’s condition was grave but one doctor in particular, Tony, stood out. Tony wasn’t going to give up as I felt the others had. Tony wasn’t scheduled to be working the day Katie was born; in fact he was supposed to be in Washington D.C. but finished his work there early and stopped by the hospital on his way home. He stayed by Katie’s side the entire first night making ever so slight adjustments in her treatment from minute to minute as she began to respond. I sensed that this was personal. He is Betsy’s friend and has a special needs child of his own. I asked Tony if my daughter was going to die. He responded that he had some more tricks up his sleeve and that he wasn’t going to allow her to die. He was the only doctor to offer words of encouragement and he was fighting for Katie’s life as hard as Katie and I were.

Betsy was finally permitted out of bed she and came to the NICU to be with Katie and I. It was day three and I must have looked a wreck. Without my realizing it, Betsy called our friend John who is himself an obstetrician to come to the hospital; not to see Katie but to get me to go home for some sleep. I reluctantly consented, but planned to sleep only four hours and rush back to Katie’s side.

Gradually Katie’s condition improved. Betsy and I took up our positions at Katie’s side. We were now permitted to hold her and comforted her for hours trying never to leave her alone. I anticipated that the time would come when for some reason we couldn’t be there so I recorded stories and our children singing songs on my micro cassette to play for Katie if we were not there. We were told by the unit doctors and Katie’s neurologist that we were being unrealistic in our expectations of Katie and that she would be profoundly impacted and not able to do much and that we should consider institutionalization.

But Katie was responding despite her doctors’ prognosis. I would make observations that indicated that she was improving and her doctors would deny that the event occurred continuing their claim that I was unrealistic and that she couldn’t possibly do what I had watched her do. It was very clear to me that Katie was a fighter and had a will stronger than any that I had ever seen. We asked for a meeting to discuss weaning her from the ventilator. Over a period of a couple of days Katie was weaned off of the ventilator and was now breathing on her own. She was no longer artificially paralyzed but was prescribed phenobarbitol for control of her seizures. The swelling of her head began to reduce and her organ systems began to function normally. Katie was progressing from being the most critically ill baby in the NICU to a miraculous comeback. The only comment that her doctors would now offer was, “we don’t know why Katie is doing so well, just keep doing what you are doing”. Katie was winning, we were winning!

What is medical malpractice?

Medical malpractice is defined as a dereliction from medical professional duty or failure to exercise an accepted degree of medical professional skill or learning rendering medical services which result in injury, loss, or damage.

Medical Malpractice cases are complicated matters. Negligence is conduct which deviates from a standard of care required by law for the protection of persons from harm. Negligence may result from the performance of an act or the failure to act. The determination of whether a defendant was negligent requires a comparison of the defendant's conduct against a standard of care. If the defendant's conduct is found to have fallen below an accepted standard of care, then he or she was negligent.

Negligence in a doctor's medical practice, which is called malpractice, is the doctor's failure to comply with the standard of care in the care and treatment of his/her patient. Usually it is necessary to establish the standard of care by expert testimony, that is, by testimony of persons who are qualified by their training, study and experience to give their opinions on subjects not generally understood by persons, such as jurors, who lack such special training or experience. In the usual case the standard of care by which to judge the defendant's conduct cannot be determined by the jury without the assistance of expert medical testimony.

We didn't want to believe that Katie was a victim of medical malpractice. It was unthinkable that the hospital and doctors who were our friends, that we trusted could nonchalantly dismiss our baby with a simple "sometimes these things just happen, we don't know why". It literally took years for us to realize that "these things" don't just happen; Everything is the result of cause and effect. Sometimes the clues are very subtile. When we began to examine the facts, doctors avoiding our questions, hospital refusing to provide us with records and claiming records had been lost, obstatrician offering to forgive the bill, and many other signs that individually do not suggest anything, but collectively point in one direction; we finally understood that something was wrong and that we needed the help of an attorney.