United States: The Paradox Of Prematurity: Why Have Improvements In The Care Of Preterm Infants Led To More Malpractice Claims?

Advances in maternal fetal medicine and neonatology have dramatically increased survival rates for extremely premature infants, defined as infants born at fewer than 28 weeks gestation.¹ One would think that medical advances that increase survivability would tend to lower the frequency and severity of malpractice lawsuits. We will examine why, ironically, we've seen that medical advances related to the obstetrical and neonatal care of extremely premature infants have actually led to an uptick in high-exposure cases involving the birth of extremely premature infants. More importantly, this article will evaluate common plaintiff and defense strategies in malpractice actions involving extreme prematurity.

Backgrounds

One of the driving factors behind the increased survival of extremely premature infants has been the use of antenatal steroids. After a 1994 National Institutes of Health (NIH) recommendation regarding the administration of antenatal corticosteroids, The American Congress of Obstetricians and Gynecologists (ACOG) followed with its own endorsement, leading to the administration of a course of antenatal corticosteroids in 70−90 percent of women who delivered at fewer than 34 weeks gestation.² The use of antenatal steroids, coupled with the establishment of the modern neonatal intensive care unit, between the 1970s and 1990s, including the routine use of CPAP devices, mechanical ventilation and surfactant, has resulted in improved survival rates.³

Much has been written about societal costs associated with the delivery of extremely premature infants. A 2005 study found the annual societal economic burden associated with preterm birth in the United States to be least $26.2 billion, including special education services estimated at $1.1 billion.⁴ However, the impact of increasing preterm survival rates on the frequency and severity of related medical malpractice actions is discussed less often. Nevertheless, we've seen a deluge of cases that involve defensible medical treatment that inexplicably results in a malpractice claim. The crux of the problem faced by medical providers and their defense counsel is this: Although the use of antenatal steroids, modern neonatal care and neuroprotective agents such as magnesium sulfate can sustain life and guard against cerebral palsy, they cannot make the fetal brain develop faster.

Litigation

The birth of an extremely premature infant with a poor neurodevelopmental prognosis creates an enticing opportunity for plaintiffs' attorneys. Clearly, the cognitive dysfunction found in many extremely premature infants constitutes a high-exposure injury. Additionally, the sheer number of medical decisions that must be made in the neonatal intensive care unit in order to keep the infant alive provides a plethora of opportunities for the plaintiffs' attorney to "Monday Morning Quarterback" the care rendered. These decisions in the intensive care unit can involve, among others, resuscitative efforts, ventilator settings, antibiotic coverage and decisions related to feeding. Given the fragility of extremely premature infants, and given the fact that nearly any medical intervention can potentially cause serious injury, the number and complexity of the treatment decisions in this setting provides opportunities for plaintiffs' attorneys.

Although every effort must be made to defend these claims on liability grounds, it can be challenging given that plaintiffs' experts attempt to link injuries sustained by extremely fragile premature infants to medical interventions. For instance, a plaintiff's expert may allege that an improper ventilator setting or use of a manual resuscitator caused an intraventricular bleed, a common occurrence in extremely premature infants. Given the seemingly endless potential for factual allegations that must be defended, in many cases the most viable defense theory is to focus on the science behind fetal brain development. This can provide a compelling causation defense as to why the infant's neurodevelopmental delays were not caused by medical treatment rendered, but rather by a brain that never had the chance to fully develop. For instance, a 26-week infant has one fifth of the brain volume of a 37- week infant. At 28 weeks, the cerebral cortex, perhaps the most important part of the brain in terms of cognitive function, has not fully formed, its neurons are not layered and its synapses remain unformed.

Plaintiffs' attorneys may argue that some extremely premature infants can develop in the extra-uterine environment and live totally normal lives; therefore, but for the negligence of the providers, their client would have developed normally. Complicating the defense of this argument is the fact that, oftentimes, extremely premature infants who have permanent neurodevelopmental delays had stormier neonatal courses. As such, more medical decisions are made in the neonatal intensive care unit and, as discussed above, each of these decisions can lead to a potential allegation of malpractice.

Mounting a Defense

One potential response to the question of why some extremely premature infants develop normally while some do not is that in order for an extremely premature brain to continue to develop properly in an extrauterine environment, conditions must be "ideal." Defense counsel must point to all the infant plaintiff's difficulties during the neonatal course − such as respiratory distress, infection or gastrointestinal problems − that were not caused by the medical providers but nevertheless led to increased stress on the infant and a decreased likelihood that the infant's brain would develop normally. Additionally, defense counsel must examine the quality of the intrauterine environment and point to complicating factors − such as intrauterine growth restriction or placental insufficiency − that would have made it less likely for the infant plaintiff to thrive once outside the womb.

In sum, when faced with the increasingly common claims involving extreme prematurity, it is helpful to assess the viability of the defense strategy from the outset, obtain experts who can support the theory and use the neuroscience regarding fetal brain development to respond to the plaintiff's efforts to link an infant's injuries to medical treatment as opposed to a tragic outcome that could not have been prevented by medical providers.

Footnotes

1. World Health Organization (http://www.who.int/mediacentre/factsheets/fs363/en/).

2. "Antenatal corticosteroids in the management of preterm birth: are we back where we started?"; Bonanno, Wapner; Obstet Gynecol Clin North Am. 2012 Mar; 39(1): 47–63.

3. "Outcomes for Extremely Premature Infants"; Glass, Costarino, Stayer, Brett, Cladis, Davis; Anesth Analg. 2015 Jun; 120(6): 1337–1351.

4. Preterm Birth: Causes, Consequences, and Prevention, Institute of Medicine (US) Committee on Understanding Premature Birth and Assuring Healthy Outcomes; Behrman RE, Butler AS, editors; National Academies Press (US).

Originally published by The Risk Management Quarterly.

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