Newsletter Winter 2004- Neurological Outcomes of Pregnancy
For years, poor neurological outcomes of pregnancy, including cerebral palsy and neonatal encephalopathy, were assumed to be due to events occurring during childbirth. We now know that less than 10% of neurologic impairments in newborns are the result of intrapartum events and of these, the majority were not preventable.1 In the report recently released by the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) , “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology”, it is noted that the majority of newborn brain injury cases do not occur during labor and delivery. Rather, most instances of neonatal encephalopathy and cerebral palsy are attributable to events occurring before labor begins.

The report was developed by an ACOG task force formed in 1999 and was co-authored by the AAP. This group was comprised of a multi-specialty panel of medical experts representing maternal-fetal medicine, pediatrics, neuroepidemiology, radiology, and pathology. Their conclusions support and update an earlier statement in 1999 by an International Cerebral Palsy Task Force. The report has received the endorsement of major organizations including the National Institute of Child Health and Human Development of the National Institutes of Health, the Centers for Disease Control and Prevention and the March of Dimes Birth Defects Foundation.2

Clinical conditions: NE/CP
Neonatal encephalopathy (NE) may or may not result in permanent neurologic impairment. The characteristics of neonatal encephalopathy include abnormal consciousness, poor muscle tone and reflexes, difficulty initiating or maintaining breathing, or seizures.

Cerebral palsy (CP) is a chronic developmental disability of the central nervous system characterized by aberrant control of movement and posture, generally appearing early in life. CP is not a progressive neurologic disease.

Despite significant reductions in maternal and neonatal morbidity/ mortality, the incidence of CP has changed little. It occurs equally in infants of normal birthweight and premature infants. CP prevalence is identical in both developed and underdeveloped countries.

Research supports that spastic quadriplegia, especially with an associated movement disorder, is the only type of cerebral palsy associated with an acute interruption of blood supply. Purely dyskinetic or ataxic cerebral palsy, especially where there is an associated learning difficulty, commonly has a genetic origin and is not caused by intrapartum or peripartum asphyxia. 3

Both CP and NE are associated with significant mortality rates and long-term morbidity. Both have been critical components in obstetric litigation. Both were thought to be related to hypoxemia during labor and delivery, but those theories have been challenged and disputed.

In the past, factors used to define perinatal asphyxia, such as meconium-stained amniotic fluid and low Apgar scores, were neither sensitive nor specific to the disease process resulting in neurologic damage. Studies have shown that the use of nonreassuring fetal heart rate patterns to predict subsequent cerebral palsy had a 99% false-positive rate, causing large number of infants to be inappropriately diagnosed "perinatal asphyxia”. 3 These factors were often assumed to be adequate evidence of birth as binations of these factors.

Essential Criteria
The report outlines the criteria needed to identify and determine the probability that NE and CP were a result of intrapartum events. These essential criteria (must meet all four) include:

• Evidence of a metabolic acidosis in fetal umbilical cord arterial blood obtained at delivery (pH <7 and base deficit =12 mmol/L)

• Early onset of severe or moderate neonatal encephalopathy in infants born at 34 or more weeks of gestation

• Cerebral palsy of the spastic quadriplegic or dyskinetic type

• Exclusion of other identifiable etiologies such as trauma, coagulation disorders, infectious conditions, or genetic disorders3

Criteria that collectively suggest intrapartum timing (within close proximity to labor and delivery, eg, 0-48 hours) but are nonspecific to asphyxial insults may include:

• A sentinel (signal) hypoxic event occurring immediately before or during labor

• A sudden and sustained fetal bradycardia or the absence of fetal heart rate variability in the presence of persistent, late, or variable decelerations, usually after a hypoxic sentinel event when the pattern was previously normal

• Apgar scores of 0-3 beyond 5 minutes

• Onset of multisystem involvement within 72 hours of birth

• Early imaging study showing evidence of acute non-focal cerebral abnormality 3

Litigation trends
These criteria have been identified as predictors of future medical-legal claims; however in the majority of claims, all the criteria were not fulfilled. Researchers found that while the criteria prevalence was high in all cases of cerebral palsy it did not appear to influence the outcome of a claim. 4

Time is also an essential factor in litigation involving these cases. In general, lengthy periods of time are irrespective of outcome. Successful litigants continue to sue more quickly, (on average two years) however their claims involved significant time periods till resolution. The average wait time to receive compensation was reported as eight years. 5

One study compared compensation for medical and income losses between claimants in the Florida no-fault program (Neurological Injury Compensation Act [NICA]) and those who filed tort claims. They found that families of children with CP were overcompensated for the injury when tort claims were filed, whereas NICA recipients were under-compensated. The difference between tort and NICA compensation levels was attributable to payment for income loss. Those who did not receive tort or NICA compensation lost nearly $75,000 in the first 5 years following the birth.6

Future impact on litigation
This report will undoubtedly aid in assisting in the defense in cases that focus on intrapartum care. For the plaintiffs, this report will direct legal scrutiny to focus more on the antepartum care of pregnancy. Identifying a clinician's understanding of the causative factors and respective care will be critical.

In a recent survey of ACOG members, many practicing obstetricians had "significant misperceptions" about NE and CP. Greater than 65% of responding physicians answered less than half of the NE/CP questions correctly, and only 6% were aware that antepartum risk factors were reported most frequently in cases of NE epidemiologic studies.7

Risk management groups identify that 50-55% of the total claim costs (indemnity and defense) for OB/GYN's are attributable to either prenatal or intrapartum conduct. “The majority of this portion of the costs is attributable to the allegation of neonatal brain injury.”8 Loss prevention specialists are strongly urging medical providers to document well the presence or absence of the essential criteria and the intrapartum timing listed above. In addition they encourage medical providers to never state or imply the use of terms such as asphyxia, birth trauma, hypoxic events without using these criteria and consulting with the delivering physician.

Life Care Planning Issues
In medicolegal opinions, the survival prospects of children with CP and NE are frequently underestimated. Typically physicians often give a life expectancy of 10 additional years or less, which is generally only correct for children in a vegetative state. Survival has improved, especially following the first few critical years and life expectancy is often confused with median survival time, the latter being shorter in high-risk children.9

Tools such as the 5-level Gross Motor Function Classification System have been shown to successfully and accurately predict the eventual level of gross motor function in children with CP and NE.10 This assessment identifies distinct motor development curves that describe important and significant differences in the rates and limits of gross motor development. This will provide life care planners, clinicians and parents with a means to plan interventions and to judge progress over time.

Additional tools that can be used to measure ongoing progress are the Touwen Examination, the Movement ABC and the WPPSI-R. These neuropsychological tests were administered to children at ages 5-6 years old, that had been identified as having NE at birth. In this study 34 children were deemed normal at 2 years of age but school testing subsequently showed minor neurological dysfunction and/or perceptual-motor difficulties in approximately 20%.11

In addition it is recommended children have periodic brain MRI for continued surveillance. In the study listed above children with neurological impairments and perceptual-motor difficulties had mild or moderate basal ganglia or more marked white matter lesions seen on MRI of the brain in the vast majority of cases.

Conclusions
Understanding the mechanism of neurologic injury and extent of damage is critical to litigation of cases for children with CP and NE. The Legal Nurse Consultants at Century Consulting are an invaluable asset to your medical-legal team for these cases. Call today (503-465-9796) to put our expertise to work on your next case.

References
1. http://www.acog.org/from_home/publications/press_releases/nr04-28-03-1.cfm

2. Nelson KB; The epidemiology of cerebral palsy in term infants; Mental Retardation Developmental Disabilities Review. 2002;8(3):146-50

3. http://www.acog.org/from_home/ Misc/neonatalEncephalopathy.cfm

4. Greenwood C; Cerebral palsy and clinical negligence litigation: a cohort study; British Journal Obstetrics & Gynaecology; 01Jan2003; 110(1): 6-11

5. Symon AG; The significance of time factors in cerebral palsy litigation; Midwifery; 01Mar2002; 18(1): 35-42

6. Whetten-Goldstein K; Compensation for birth-related injury: no-fault programs compared with tort system; Archives Pediatric Adolescent Medicine; 01Jan1999; 153(1): 41-8

7. Hankins GD, Erickson K, Zinberg S, Schulkin J; Neonatal encephalopathy and cerebral palsy: a knowledge survey of Fellows of The American College of Obstetricians and Gynecologists; Obstetrics and Gynecology; 2003;101:11-17

8. http://callcopic.com/publications/ copiscope/cs_113_may_2003.pdf

9. Eyman RK, Strauss DJ, and Grossman HJ; Survival of children with severe developmental disability; Bailliere's Clinical Pediatrics, pp.543- 556; Harcourt Brace & Co. Ltd.; 1996.

10. Rosenbaum PL; Prognosis for gross motor function in cerebral palsy: creation of motor development curves; JAMA (Journal of American Medical Association); 18-Sep 2002; 288(11): 1357-63

11. Barnett A; Neurological and perceptual-motor outcome at 5 - 6 years of age in children with neonatal encephalopathy: relationship with neonatal brain MRI; Neuropediatrics; 01Oct-2002; 33(5): 242-8