New Mexico Injury Attorney Blog

Oxygen deprivation during the birth process can result in serious injuries to the newborn. Studies have found that oxygen deprivation can result in death rates as high as 60%, and of those newborns that survive many sustain brain damage that often results in cerebral palsy, cognitive impairments or hearing and vision loss. While many newborns that suffer from insufficient oxygen during birth may not experience detectable brain damage they remain at a higher risk for learning disabilities, language delays and memory deficit.

Fortunately, The National Institute of Child Health and Human Development Neonatal Research Network has discovered a method that has been shown to reduce the rate of death and disability caused by insufficient oxygen and decreased blood flow to the newborn's brain at birth. This new procedure involves reducing the "whole body temperature" of newborns with brain injuries during the hours immediately after birth.

To do this, specially designed cooling blankets are used to lower the whole body temperature of the newborns to 92.3 degrees Fahrenheit for 72 hours immediately after birth. By providing this whole-body cooling immediately after birth the effects of oxygen deprivation and lack of blood flow are slowed down. This reduces the detrimental effects that usually result from oxygen deprivation. Initial studies found that this cooling process significantly lowered the risk of death and disability by more than 15 percent.

Researchers have learned that brain injuries resulting from insufficient oxygen and blood flow during birth generally occur in two phases. The first phase happens during the birth process when the baby is deprived of sufficient oxygen due to inadequate blood flow supplying oxygen to the baby's brain. The second phase happens in the hours just following birth and is due to a secondary energy failure. When the brain and body are cooled, less energy is needed for the brain to function and this minimizes the brain injury.

In order for this to be effective the cooling blanket must be used within the first six hours after birth. The cooling blankets induce hypothermia and minimize the damage. In some cases this prevents the baby from experiencing the second phase of brain injury. It is hoped that this new treatment will significantly decrease the damages caused by oxygen deprivation.

Inducing whole body hyperthermia is now becoming the standardized treatment for oxygen deprivation in brain injured newborns. Neonatal departments around the world are adopting this cooling technique to reduce the risk of death and disability among infants showing signs of brain injury indicating oxygen deficiency.

Researcher have also noted that this hypothermia therapy is useful for treating adult patients who experience oxygen deprivation and is being used to treat adults that have suffered from of heart attacks, strokes, spinal cord injuries and other forms of trauma that cause injury to the brain due to oxygen deprivation.

Medical malpractice claims require that the medical provider fell below the standard of care in the medical profession. Once standard practices are in place, failure to adopt those practices may by definition suggest the medical provider fell below the standard of care. If your baby has suffered oxygen deprivation and resulting brain injury or cerebral palsy, you should contact an experienced personal injury attorney to determine if you have a possible medical malpractice claim.

Related Reading:
Cerebral Palsy Birth Injuries: Devastating, Costly and Sometimes Avoidable!
Cesarean Sections: An Essential Tool in Prevention of Cerebral Palsy
New Techniques to Fight Cerebral Palsy in the Womb

Collins & Collins, P.C.
Albuquerque Attorneys

Few experiences in life are more emotional than the birth of a baby. We all hope that our children come into this world happy and healthy. Unfortunately there are many different conditions that can impact your baby's development both during your pregnancy as well as during the labor and delivery process. One very serious condition is called Placental Cerebral Infarction or PCI. Placental Cerebral Infarction affects the blood flow going to the fetus from the placenta. PCI is a form of cerebral hypoxia or a decrease of blood flow and oxygen to the baby's brain.

There are a number of developmental causes for PCI including:

1. Maternal diabetes.
2. Preclampsia, which is high blood pressure in the mother during pregnancy.
3. Fetal anemia.
4. Lung malformation.
5. Cardiac disease.
6. Congenital fetal infections.
7. Blood flow problems to the placenta

Placental Cerebral Infarction can also occur if the doctor must perform an operative procedure during pregnancy or a Caesarean section. These types of procedures can cause the placenta to bleed or even rupture which affects the supply of oxygen to the baby's brain. If this occurs the doctor must respond to the situation quickly so that no harm results to the baby. However, if the doctor fails to respond promptly, and the baby's brain is without adequate oxygen for too long, serious birth injuries can result.

The types and seriousness of the injuries caused by cerebral hypoxia are largely dependent upon which portion(s) of the brain are denied adequate oxygen, as well as the severity of the hypoxia. In cases where the lack of oxygen to the brain is mild, the brain injury, if any, will be less serious. Such injuries can include short-term memory loss and/or difficulty mastering complicated tasks. In the most severe cases of cerebral hypoxia, coma and brain death can result.

In serious cases of PCI, another common result is cerebral palsy birth injury. Cerebral palsy can lead to brain damage of varying degrees causing moderate to sever learning disabilities, mental retardation, seizure disorders impaired mobility and other injuries.

In situations where it appears that PCI was caused by medical negligence you may be entitled to file a medical malpractice claim to recover for damages to your child, including medical expenses (past and future), lost earnings (over a lifetime), and pain and suffering.

If you suspect that medical negligence is the cause of your child's PCI, it is very important that you contact an attorney experienced in medical malpractice claims as soon as you suspect that there may be a problem as there are very strict and unique deadlines associated with New Mexico medical malpractice claims. Failure to file your claim within these time frames will result in your inability to bring the claim at all.

Related Reading:
Infant Asphyxia and Hypoxic-Ischemic Encephalopathy
Negligent Failure to Perform C-sections Resulting in Cerebral Palsy
Risks of Pre-Term C-Section Should be Understood by the Patient

Collins & Collins, P.C.
Albuquerque Attorneys

Doctors at Monash Medical Centre in Melbourne, Australia announced a new medical trial that will use melatonin in an effort to prevent prenatal fetal brain injuries, including cerebral palsy. The trial will involve 20 women and will go on for 12 months. Even though results are not expected until 2013, there is reason to be cautiously optimistic.

According to the Centers for Disease Control (CDC) one in every 303 children in the U.S. suffers from cerebral palsy. Cerebral palsy describes a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. However, in a large majority of cerebral palsy cases, the damage occurs during pregnancy.

Whatever the cause, cerebral palsy greatly inhibits a child's development and quality of life. The severity of symptoms can range from moderate to severe. Many children with cerebral palsy require life-long, around-the-clock care.

The Monash study builds on previous research by its scientists and doctors who have found a link between intrauterine fetal growth restriction (IUGR) and injuries to the developing brain of the fetus. According to the specialists at Monash Medical Centre, one in 20 pregnant women exhibit IUGR, a situation where the placenta does not provide sufficient nutrients and oxygen to the developing fetus' brain. IUGR is responsible for a large number of cerebral palsy cases, but currently there is little doctors have been able to do in the way of treatment. The Australian study represents new hope in this field.

The doctors and specialists at Monash Medical Centre have spent the last five years studying and observing the causes of brain injuries and IUGR. Their research has established that the brain injury is caused by oxidative stress, where an excess of free radicals causes tissue damage. Free radicals are highly reactive chemicals associated with cell damage.

According to the doctors and scientists at Monash, doses of melatonin could prevent oxidative stress by protecting fetal brain cells. Melatonin is produced by the pineal gland, and besides regulating important functions in the body, such as the wake-sleep cycle, it is also a powerful antioxidant. With its ability to easily cross cell membranes and from blood to brain cells, scientists at Monash hope that melatonin will prevent oxidative damage to cells caused by free radicals.

The Monash study will include 20 pregnant women who will be administered melatonin orally in tablet form if they exhibit IUGR. Research at Monash has already shown that free radical levels in cord blood of IUGR births are higher than in normal births. The trial will also test the cord blood of babies who were given melatonin for free radical levels to see whether the treatment was successful. If successful, a second trial will include 100 women and two- and three-year follow-up exams of babies to test for development of cerebral palsy.

The trial, if successful, could represent major progress in prenatal treatment and hopefully prevent cerebral palsy in some children. There will still be those instances of cerebral palsy caused by medical negligence. The study does not address those cases. If your child has been the victim of medical negligence, then it is important to seek the counsel of an experienced personal injury attorney as soon as possible due to the unique deadlines associated with medical malpractice claims.

Collins & Collins, P.C.
Albuquerque Attorneys

In birth injury cases, a lack of oxygen is the most common cause of damage to an infant's brain. Oxygen deprivation can come in the form of asphyxia, a blockage to the airways, or hypoxia, a blockage of oxygen-rich blood to the brain. While a lack of oxygen can occur for many reasons, one cause may be due to a common medical practice: immediate cord clamping (ICC).

ICC generally occurs right after an infant's delivery. The umbilical cord that unites mother and child is clamped then cut, typically within 30 seconds after the baby has emerged. The process is thought to prevent hemorrhaging in the mother and allow the infant to be quickly transferred to a resuscitation station for further evaluation.

Recent studies suggest that clamping and/or cutting the cord too soon may lead to massive blood loss into the placenta. This reduces the nutrient-rich blood and oxygen supply a child needs when taking its first breaths. Certain infants are more susceptible to problems from this decrease in oxygen and blood, leading to a possibility of brain hemorrhage or breathing difficulties. Both of these risks can result in brain damage and a wide range of long-term disabilities.

Some experts, including the World Health Organization, recommend that three minutes should pass before cutting the umbilical cord. This will allow blood from the placenta to flow to and nourish the newborn, while the baby establishes a proper breathing pattern and starts to depend on its own bodily systems. It is advised that all signs of pulsation within the cord should cease before the cord is clamped and cut.

Experts believe the amount of blood transferred through the cord may amount to 30-50% of an infant's eventual blood volume. Studies show that infants have a built-in reflex system that will shut off the flow of blood from the cord once they have received the optimal amount. And, this nutrient-rich blood could impact the health of the infant long past birth, reducing the chance of iron deficiency in children as old as 8 months.

Traditional treatment of an infant displaying a lack of oxygen has been to re-oxygenate their systems. Unfortunately, they may be in need of blood volume replacement instead, something that is typically not addressed. Interestingly, rates of oxygen deprivation are much lower in deliveries involving professional midwives. Often, midwives delay the cutting of the umbilical cord until delivery of the placenta.

Dr. George Morley, MB, ChB, FACOG, a board certified OB/GYN states emphatically that "Perinatal and neonatal care is less successful in saving brains than saving lives." He also believes that the cause of oxygen deprivation in newborns has been misdiagnosed, leading to no real decline in cerebral palsy rates, despite intensive interventions.

While this is just one theory involving infant brain damage, expectant parent should discuss ICC with their medical providers. Many physicians may simply be following current trends in obstetric medicine by practicing ICC, without being fully aware of the possible risks this procedure may present.

If your baby has suffered a birth injury, including brain injury, it is important to contact an experienced personal injury attorney right away. There are unique medical malpractice statutes of limitation and other deadlines.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the Center for Disease Control (CDC), cerebral palsy is the most common motor disability among children in the US. In a number of cases, cerebral palsy is caused by a doctor's negligent failure to perform a C-section when conditions deem it necessary.

Juries around the country have recognized that failure to perform a timely C-section when medically necessary is a significant deviation from reasonable standards of care. As a result they often return sizeable medical malpractice verdicts in favor of affected children and families.

The CDC estimates that one in every 303 children in the US suffers from cerebral palsy. Cerebral palsy is the name for a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy greatly affects a child's development and quality of life. The severity of symptoms can range from moderate to severe, and many affected children require life-long care.

Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. Most children display symptoms of cerebral palsy by age three. Around 20% of cerebral palsy cases are attributed to brain damage during birth. In many of these situations, the brain damage that leads to cerebral palsy is caused by lack of oxygen to the brain, known as fetal hypoxia. According to the CDC, fetal hypoxia accounts for roughly 10% of cases of cerebral palsy. Even though only a small percentage of all cerebral palsy cases can be prevented by the timely performance of a C-section, failure to do so can have devastating results for a child and family.

In a number of cases, possible brain damage from lack of oxygen to the brain can be prevented by the timely performance of a C-section. Situations when a C-section becomes medically necessary include when: (1) the baby does not progress through the birth canal and is deprived of oxygen, (2) the umbilical cord is wrapped around the child's neck and the problem cannot be corrected, and (3) prolonged attempts to induce labor have not been effective and the child remains in the birth canal for too long.

When these problems develop, medical professionals often have mere minutes to react before irreversible damage is done to mother and child. There are several ways that healthcare providers can monitor the child for signs of distress that can lead to deprivation of oxygen to the brain. Fetal hypoxia is often accompanied by a change in the baby's heart rate, which should be carefully monitored by healthcare professionals if there are any signs of complications during birth or if there are risk factors associated with the pregnancy.

Unless doctors and nurses are well trained and vigilant, and the hospital has standard procedures in place, these warning signs may go unnoticed and precious time may be lost. In some situations, there is no way to identify signs of distress in time. However, in a large number of cases, the signs are obvious and the physician or medical team simply does not address the need for a C- section in a speedy manner, causing injury and even death to the child. In these cases, doctors and hospitals deviate from the medical standard of care and may be deemed negligent under civil law.

As indicated, medical negligence is not always or even the most common cause of cerebral palsy. However, if your child suffers from cerebral palsy and you suspect medical negligence, it is important to make the determination as early as possible. An experienced personal injury attorney can help you do just that.

Collins & Collins, P.C.
Albuquerque Attorneys

The contingency fee arrangement plays a pivotal role in allowing personal injury plaintiffs access to the courthouse. In fact, without contingency fees, injured persons would for the most part have absolutely no recourse for their injuries and damages.

Of course this is what defendants would like to see. This explains the unrelenting attacks on trial lawyers by insurance companies, the Tort Reform movement, the U.S. Chamber of Commerce, and a long list of so-called small business advocacy groups.

The arguments have been so persistent and so loud for so long that many have taken their truth for granted. In fact, the arguments for tort reform and personal injury liability caps are based largely on myth. These myths were hatched and nurtured by these groups who represent corporate America and the insurance industry. The goal is maximize corporate and insurance industry profits with little regard for the safety of the public. In short, the goal is to keep injured persons out of court.

Among the greatest myths, and one that is particularly popular even among the public, is that the greed of trial lawyers is draining small business. Because the myths and misrepresentations are so numerous and profound, it is really hard to rank them in order of deception. However, this myth ranks at or near the top.

The focus of the "greed" argument has been on the contingency fee arrangement. Remarkably, the very conservative Fourth Circuit Court of Appeals shot down this argument in the 2010 case of Pellegrin v. National Union Fire Insurance. The case involved a $18 million auto accident settlement on behalf of Mark Pellegrin who suffered severe and permanent brain injuries, and quadriplegia. His injuries were so great that he can communicate only through facial expressions. He will be totally dependent for life upon the care of others for even basic necessities such as bathing and feeding.

Liability was hard fought by the insurance companies. According to the two plaintiff's attorneys, permanent, each had spent over 1000 hours of time on the case. There was a standard one-third contingency fee arrangement. Over the strong objections of the plaintiff's father and guardian, the district court reduced the fee to a mere 3%.

The plaintiff's were forced to appeal to the 4th Circuit Court of Appeals. The 4th Circuit is notoriously conservative and the plaintiffs were rightfully extremely concerned. In addition, Public Justice became involved fearing that the 4th Circuit would use the case as a platform for a full frontal assault to the contingency fee arrangement.

To the surprise of all on the plaintiff's side, the 4th Circuit reversed the district court's ruling. The Court repeatedly recognized not only the importance but the absolute necessity of the contingency fee arrangement to allow injured individuals their day in court. The Court noted that this case in particular illustrates the reality that an injured individual would have absolutely no recourse for his or her injuries in a case like this. Clearly, there are very few if any other than corporate plaintiffs that would have the resources to pay for thousands of hours of attorney time not to mention the enormous litigation costs associated with suits of this nature.

Of course, this is well known to the Tort Reform movement. In their perfect world, the courts would be a playground for only the rich and powerful. And perhaps most importantly for all those skeptics out there, the millions of dollars of lifetime medical care for Mr. Pellegrin and others like him would be left to the taxpayer.

Collins & Collins, P.C.
Albuquerque Attorneys

With winter storms approaching, so too are the inevitable slip and fall accidents on ice that come with them. These accidents will occur in all manner of situations. They will occur around the home on driveways and sidewalks. They also commonly occur at public facilities such as malls, strip centers, gas stations and every other variety of public space.

The injuries from a slip and fall on ice range from the mundane to the catastrophic. Falls on ice often come with knee, wrist and back injuries. Far too often, they even result in serious traumatic brain injury.

Often the first question the injured person or the injured person's family will have is whether the property owner/manager can be held liable for the injuries. The answer is dependent upon the circumstances of the case. The personal injury cases dealing with ice and snow have been long established in the New Mexico Supreme Court cases of Proctor v. Waxler (1972) and Crenshaw v. Firestone (1963).

Essentially, the court has ruled that snow and ice are such obvious hazards that pedestrians have a duty to protect themselves from harm. In fact, the court has ruled that the property owner/manager has no greater duty to protect the visitor than the visitor has him or herself.

The courts framed the issue in terms of assumption of risks. In other words, the pedestrian should know of the risk of ice and snow and by venturing out into the ice and snow assumes the risks of falls. The court in Crenshaw remarkably ruled that this is the case even if the owner/manager has knowledge of the risks and an opportunity to correct the dangerous conditions.

Both cases involved obvious risks of snow and ice. The accidents occurred soon after a winter storms. Neither addressed the situation of black ice which is clearly the most hazardous condition following a storm.

Under the law, a pedestrian indeed has an equal duty to protect him or herself from known dangers. However, black ice is typically not a known danger to a pedestrian. The essence of black ice is that it is neither apparent nor obvious to the eye.

In cases of black ice, the owner/manager will have a much higher duty. In fact, it is the owner/manager alone who will have knowledge of the propensity for black ice on the property. It is also the owner/manager that is in the best position to both detect and correct the dangerous condition.

Of course, if a pedestrian is aware of the black ice and ventures on to it despite the risks, then again there will be significant issues regarding liability and comparative negligence. In fact, the claim could be barred completely when there is a high level of negligence on the part of the pedestrian. More likely, the fault and liability would be apportioned according the comparative negligence of each. With catastrophic injuries, even a high level of comparative negligence will not completely bar recovery.

There is a widely held misconception that there is strict liability for injuries suffered in a slip and fall accident, particularly when ice is involved. This is not the case. These cases rest on the negligence and comparative negligence of the parties. Both have a duty. And that duty will vary substantially from one case to the next.

Collins & Collins, P.C.
Albuquerque Attorneys

Children are typically involved in a myriad of activities, including sports; thus the likelihood of injury is ever present. Even a slight bump to the head can become a situation in which the child will need emergency medical treatment. Generally, a first time minor concussion will have little long term consequences. However, as anyone knows from following the NFL, boxing, or other professional sports, it is the secondary concussion that can have devastating and permanent consequences.

Concussion is considered a traumatic brain injury, resulting from a blow, jolt or bump to the head or body. The brain moves quickly back and forth in this situation, possibly causing bruising, nerve damage and even blood clots. Most concussions do not result in a lack of consciousness, which may further delay treatment. Prompt recognition of concussion and quick response to stabilize the child can prevent further injury and even death.

Because there are usually no outward signs of concussion, they are difficult to identify. Even doctors have difficulty diagnosing them, because brain scanning equipment does not specifically identify concussions. Yet, children can report symptoms that are helpful in determining if a concussion exists. Likewise, parents, coaches or other observers can help recognize the signs of concussion.

The warning signs of concussion usually fall within four categories: thinking/remembering, physical, emotional/mood and sleep disturbance.

The thinking/remembering category includes:

• confusion or concentration problems
• difficulty recalling events before or after the injury
• responding slowly to questions
• being confused or unsure of current activities

The physical category consists of:

• pressure in the head or headache
• dizziness or balance problems
• nausea or vomiting
• sensitivity to light and/or noise
• lack of energy

The emotional/mood category involves:

• an increase in emotion
• sadness
• anxiety or nervousness
• irritability

The sleep disturbance category includes:

• sleeping less or more than usual
• trouble falling asleep

You should seek immediate medical attention if your child presents any of these signs. It is important to note that some of these symptoms may not appear immediately after the child suffers the injury. Some symptoms may develop after several days, weeks or even months.

Because children are children and many will not let anything, even brain injury, get in the way of their fun, parents, teachers and coaches to educate themselves on the signs of concussion. We owe it to our children to err on the side of caution no matter how badly they want to get back on the field.

The CDC has plenty of materials for just this purpose. To learn more about youth and concussions, visit the CDC website where you find much of the information you need.

Related Reading:
Unattended Cars, Heat and Children: A Deadly Combination!
Teen Driver Safety
Teen Suicide Warning Signs

Collins & Collins, P.C.
Albuquerque Attorneys

A jury awarded a family $7.4 million for the brain damage that their child suffered as a result of an untreated infection at birth. The child, Paris Campen, suffered brain damage when the neonatal intensive care unit at Cedars-Sinai Medical Center failed to properly treat the newborn's infection.

As a result of the medical malpractice of the medical staff in failing to treat the birth related infection, the child developed meningitis which caused the child permanent brain damage. The child will have a permanent shunt in her brain to prevent excess fluid and further brain damage. In addition, she will undergo a lifetime of behavioral and physical therapy.

The child's mother, an emergency room doctor at UCLA Medical Center, had raised the issue of infection with the doctors at Cedars Sinai. They ignored her. This kind of arrogance is often at the root of medical malpractice and medical negligence. Doctors often ignore their staff members and nurses, who many times due to close contact with the patient are more knowledgeable of the patient's needs than the doctor. The arrogance in this case is even more remarkable in the doctors' refusal to listen to the child's own mother who happened also to be a doctor.

Meningitis in newborns is extremely serious. In addition, this type of birth injury is not so uncommon that it should not be checked if even remotely possible. Immediate diagnosis and treatment is essential to prevent, hearing loss, learning disabilities, and in this case brain damage. Failure to properly diagnose and treat meningitis in newborns is a significant departure from the standard of care expected in the medical profession.

Though this case occurred in California, these same issues arise in Albuquerque and throughout the state of New Mexico. Medical malpractice lawsuits in New Mexico are challenging to say the least. Doctors are given every benefit of the doubt under the law. In the case of public facilities, there are other layers of protection include Tort Claims Notice Requirements and Tort Claims limits. Moreover, doctors are highly respected throughout society so that juries are reluctant to find fault with physicians. The same type of arrogance that drives doctors to ignore their staff, nurses, mothers and fellow doctors also results many times of an absolute denial of responsibility even in clear cases of negligence. Couple all this with all the nonsense regarding tort reform, and the constant barrage of misinformation regarding the strain that these types of cases place on the medical profession, and medical malpractice claims of any kind face an uphill battle.

However, in cases like this where a child is permanently harmed through the gross negligence of a medical staff explained only by the refusal of the doctors to acknowledge the concerns of a mother and fellow medical professional, the jury obviously felt the doctors' care fell so far below the medical industry standard care that a strong message had to be sent.

A verdict, even a $7.4 million verdict will never fully compensate a child and a family burdened with a lifetime of suffering. However, these verdicts serve society in forcing a medical profession buttressed by the support of tort reformers and opportunistic politicians to behave responsibly. The medical profession must recognize that with its great privilege comes great responsibility, perhaps at least in this case, the greatest responsibility of all which is to protect defenseless newborns and their families from preventable harm.

Related Reading:
Medical Malpractice for Birth Injuries Bring More Large Verdicts
High Burden of Proof in New Mexico Birth Injury Lawsuits
Preterm Births: A Growing Health and Economic Crisis

Collins & Collins, P.C.
Attorneys at Law