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In any case of obstetrical malpractice where an infant is injured, one of the first things we look at is the APGAR score, which is a rating of how a baby is doing at birth.
It measures an infant’s Muscle Tone (Activity), Reflex (Grimace), Heart Rate (Pulse), Color (Appearance), and Respiration/Cry, and a baby can score a 0, 1, or 2 in each category. The APGAR is measured at 1 minute, 5 minutes, and sometimes at 10 minutes if the previous APGAR scores were abnormal.
Theoretically, an APGAR score tells us how healthy the child is at birth, with a lower score indicating that the baby may have had some problems during his delivery, such as low oxygen or hypoxia, resulting in his heart rate, activity, cry, color, or reflexes decreasing. An APGAR for a normal, healthy child is 9 at 1 minute, and 9 at 5 minutes, or close to it. In our work, we see many cases where lower APGAR scores are indicative of trauma during delivery and serve as a basis for arguing that delivery should have been expedited. Defendants regularly use higher APGAR scores as evidence that a baby was not injured. Thus, APGAR scores are often very important information as they can be used as a sword or a shield by both sides.
However, APGAR scores are often very unreliable. First, the assignment of APGARs is highly subjective and is often in the eye of the beholder (the obstetrical team and/or the neonatal team) as to how limp or present muscle tone is, or as to the strength or presence of reflexes, or as to the color of the baby, or as to whether the cry is weak or strong. Many times, the APGAR scores vary whether you are looking at the mother’s record (where the score may have been assigned by the obstetricians) versus the infant’s record (where the score is assigned by a nurse or physician from the neonatal team).
Second, and importantly, nurses, doctors, and hospital staff know of the use and importance of APGAR scores in litigation and often do everything they can to fudge the APGAR scores to make them as high as they can.
My wife and I had a personal experience with the problems of APGAR scores during the birth of our child. My wife’s labor was one of the most stressful times of my life, especially given my extensive experience litigating birth injury cases; I know entirely too much about what can go wrong. We had a checkup on Wednesday that indicated the baby would not be coming that day, at 40 weeks 5 days, and that we would just have to come back for an induction on Friday morning. Thus, I returned to work for the day, only to get a call, about 10 minutes after arriving, that my wife’s water had broken, and I had to get home immediately so I could drive her to the hospital.
When we got to the hospital, they discovered that there was meconium (the baby’s fecal matter) in the amniotic fluid. This meant that the neonatal team would need to be present at birth, and would have to prevent the baby from breathing right away so that he would not swallow or inhale any of the fecal matter. If swallowed, meconium can cause serious respiratory issues. Over the course of labor, the baby experienced various periods of fetal distress, including once where his heart rate dropped due to tachysystole (the contractions coming too quickly together) and terbutaline, a medication to stop the contractions, had to be administered.
After 27 hours of labor, my wife wasexamined told that she was just short of being fully dilated at about 9.5 cm (theydescribed it as a “lip”), and they told her that she would need to wait another20 minutes to be reexamined before she would be allowed to push. In fact, shewas told that she had to actively resist the urge to push. This was verydifficult and exhausting to do.
The problem was that no doctorcame back after 20 minutes, and then after 40 minutes, we asked the nurse(“Nurse A”) where the doctor was. As she had done all along, Nurse A dismissedour concerns (we had loved all the other nurses we had seen). Then, after anhour had passed without any doctor arriving, we asked again, and Nurse A dismissedour concerns yet again. Finally, after an hour and a half of my wife activelyusing all of her energy to resist the urge to push, she was finally examined bya doctor and was found to be fully dilated, and only then was she allowed topush.
The problem was that she was completely exhausted and had difficulty pushing, and the baby became stuck. During the pushing, the Doctor told us that she was concerned about the baby’s heart rate, and would only allow two more pushes before she used a vacuum to help with the delivery. Using a vacuum is a potentially dangerous maneuver. It involves using a suction device placed on the baby’s head to help extract the baby. It is risky because if the vacuum pops off, it can cause an injury to the infant’s head, and even potentially cause a brain bleed or other complication. It is even riskier if the physician doing the maneuver is not experienced or skilled in doing such a procedure, which can happen often if a resident is allowed to do the procedure.
Finally, after a time that feltlike forever from the moment she started pushing (in reality, only 10-20minutes), our baby was born. Unlike other babies, he did not cry at birth.Instead, he was immediately taken to an incubator, where the NICU team workedexpeditiously to intubate him and suction the meconium from his lungs. It wasonly a minute or two before he finally started breathing and began to cry, but itfelt like a year.
I was able to overhear the NICUteam discussing what the APGAR scores should be. In the room, they discussedhow they thought they could stretch the baby’s Apgar score to a 3 at 1 minuteand 7 at 5 minutes, which are pretty low scores (again, 9 and 9 are consideredhealthy). It probably should have been lower based on the baby’s condition andtheir initial discussion of what the APGAR score should be, as there was significantdiscussion/argument over the numbers. It truly felt like they were stretchingwhat the proper number should be.
A few days later, I got our baby’s discharge papers, which indicated that his Apgar scores were now 4 and 9. So even though I was present for the conversation in which they discussed the proper APGAR score and arrived at a score of 3 and 7, the medical records indicated the scores were now 4 and 9. Basically the APGAR scores had changed in TWICE in the limited time from the baby’s birth to the time he was discharged (a day and a half later). This taught me a lesson over how inaccurate and manipulative the APGAR scores are, and why plaintiffs’ attorneys and families should be very skeptical as to the value and information provided by APGAR scores.
While the APGAR scores can beuseful information, they should definitely be looked at with a grain of salt,with the knowledge that the people issuing the score have a vested interest inassigning the highest score possible, and that oftentimes, the scores areprobably significantly lower than indicated by the hospital staff.
Our son is a healthy, happy, and extremely energetic 3-year-old who still sometimes leaves us exhausted. I know just how lucky we are that the attending performed the vacuum delivery properly and that the baby had sufficient oxygen reserves to not be injured. It was easy to see how easily things could have ended up being tragic. This experience is on my mind every time I work on a case on behalf of little boys and girls and their families who weren’t quite so fortunate. It propels me to fight harder and to have compassion for the families I serve.