Birth Injuries

Birth Trauma Litigation Plaintiff Perspective

November 1, 2016

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Every parent has an expectation that their child will be born healthy. The most common question and answer that you hear when your family members and friends reveal that they are pregnant is: "Do you know what you are having"? and the response "Boy or Girl, we just hope our baby is healthy". So, that is where we start from in terms of litigating these cases from a plaintiff perspective.When the parents of a severely disabled child or those who have lost a child come to our office we are tasked with finding the answers to questions as to why their dreams of a healthy child will never be a reality, what went wrong, and who, if anyone, should be held accountable? Not only are these parents left with a tremendous emotional toll of being the caregivers to these incredibly compromised babies (i.e. administering gastrointestinal feedings through a tube, managing a tracheostomy and intractable seizures, administering an array of medications, and providing therapies with various exercise contraptions that appear almost medieval in design, etc.) but, they are also left with the astronomical costs of care that they will be saddled with during the child's entire lifetime.So, when these families come to your office seeking your help and representation to evaluate and perhaps bring legal action on their behalf recognize what an honor and privilege it is to represent these families and specifically, the most vulnerable individual in today's society: The brain-damaged baby.

I. Initial Case Evaluation

There are many factors that go into determining whether there is merit in bringing a catastrophically neurologically impaired infant case. As a practitioner, you must be thorough and obtain all of the necessary records to make a well-informed decision as to whether you will be successful in this extensive and expensive litigation. These records must be evaluated at the outset of the case otherwise you may find yourself years into the litigation facing defenses that cannot be overcome. Specifically, the prenatal records, intra-partum records, delivery records, fetal heart monitoring strips, umbilical blood cord gases, newborn records, diagnostic films (CT scans and MRI's) from the subject delivery, as well as placental pathology must be obtained. Of considerable import, as well, are the prior gynecologic and obstetrical records detailing any high-risk components to the applicable pregnancy such as a history of premature births, preeclampsia, gestational diabetes, and genetic findings. The collection and evaluation of all of these records will provide the support needed to prove your case. Remember, once you obtain the departures needed you must be able to demonstrate that hypoxic-ischemic encephalopathy (HIE) also called birth asphyxia derived from the substandard obstetrical care which resulted in the child's cerebral palsy. It is therefore also critical that the practitioner understand basic medical conditions defined in the footnote below in order to prosecute your case.

1 II EVALUATING PRENATAL ISSUESOne of the most important prenatal factors to consider when evaluating a potential case is the gestational age of the baby at birth. If the baby is born early in the pregnancy and prenatal period, it is very likely that the infant had an underlying pathology that precipitated the labor and birth which was not preventable.

2 You must also look to lifestyle factors of your prospective client that may have contributed to the premature delivery of the infant including use of illicit drugs, cigarette smoking, inadequate maternal weight gain, poor dietary control, etc.

3 In many instances genetic factors have been found to be the cause of premature birth.

4 Conversely, it could be, by way of example, that the mother had a well-known high-risk medical condition such as an "incompetent cervix" or cervical insufficiency and premature delivery could have been preventable if a cervical cerclage (cervical stitch) had been placed before the cervix began to shorten and open.

5 A) Pre-EclampsiaThe mother may have had a high-risk obstetrical condition known as pre-eclampsia which was not appropriately evaluated, diagnosed, and treated. Preeclampsia is a well-known condition specific to pregnancy where the patient becomes hypertensive, resting blood pressure is 140/90 mm HG or greater, demonstrates reduced organ perfusion, and has protein in her urine (greater than .3 grams of protein in a 24-hour urine specimen) which is usually accompanied by edema and swelling. Oftentimes patients presenting with severe preeclampsia complain of a severe headache, visual abnormalities, epigastric pain, nausea and vomiting, and altered mental status. This condition is life-threatening to both mother and baby.6 Treatment, however, is available including continuous maternal-fetal monitoring, managing the blood pressure of mom to reduce the risk of stroke, and administration of seizure prophylaxis.7 Therefore, if your client suffered from those underlying findings that went untreated, this clinical picture would certainly warrant a medical review by a highly qualified maternal-fetal medicine expert.

B) Non-Stress Testing A non-stress test is another routine test that is performed during the prenatal period that may be indicative of an underlying potential problem which may require a higher level of monitoring. In those instances where the monitoring fell short, there could be an opportunity that was lost which may have made all the difference to the well-being of the infant. Specifically, a non-stress test is typically performed during the prenatal period at 28 weeks and thereafter to test the reactivity of the baby's heart. Non-stress testing is performed over a 20-30 minute period of time and utilized to determine if the baby is well perfused with enough oxygen and has the appropriate intrauterine activity. This is confirmed by evaluating if the baby's heart rate is increasing and decreasing with activity. If the baby is not demonstrating two accelerations over that 20-30 minute period which physicians typically look for, an alarm may be used to wake the baby up. If the baby is still not reacting appropriately, this may indicate that there may be some issue with perfusion of oxygen from the placenta or the umbilical cord which is causing the fetus not to react. This finding may be ominous and indicative of a baby that is not growing appropriately and that perhaps the intrauterine environment is becoming hostile.8 If this test is not acted upon and the infant was severely compromised at birth or died, this could be another area with regard to a departure from the accepted standards of obstetrical care.

C) Biophysical Profile Testing Another prenatal testing known as a biophysical profile is usually performed for high-risk pregnancies to determine if the baby is healthy. The testing is a combination of fetal heart monitoring and ultrasound. This test can be performed as early as 24 weeks. The test measures the following variables of fetal well-being: Fetal heart rate, breathing, movements, muscle tone, and amniotic fluid levels. The scoring for each variable is based upon a normal (2) or abnormal (0) finding. The highest score to be obtained would be a "10" and lowest a "0". If there is an abnormality associated with this testing, further clinical evaluation and administration of medications to increase fetal lung maturity, and possible delivery of the baby could be indicated.9 The failure on the part of the obstetrician to act on these findings may constitute malpractice.

III) INTRA-PARTUM CAREThere is a multiplicity of intra-partum issues to consider when determining whether the standard of care was breached during the course of labor and delivery. The first crucial question the practitioner must ask is whether the baby is compromised (healthy or sick) at the time mom went into labor. The evaluation of the fetal heart monitoring strips must be interpreted to determine if the baby is tolerating the labor at its outset. The physiologic basis is that the beginning of the labor is when the baby is least "stressed". As the labor continues and the stresses continue (length of labor, contractions, and maternal exhaustion) these factors may all contribute to the reduction in the infant's oxygen reserves. Usually, the baby is able to compensate for the stresses of labor. The question is when did labor reach the point where the baby was not able to compensate for those stresses. Utilizing the baseline as a comparison provides supportive evidence as to whether there should have been interventions including resuscitative measures, assisted delivery by way of forceps, or vacuum or cesarean section. It goes without saying that knowledge of the various interpretations of the fetal heart monitor by the practitioner is essential when prosecuting a birth trauma matter.

A) Fetal Heart MonitoringBy way of background, the fetal heart monitor is a device that measures the heart rate of the baby and mom's contractions by ultrasonic waves where a transducer is placed upon the mother's abdomen.10 The fetal heart monitor provides a window into the health of the baby helping to predict hypoxia and asphyxia. The interpretation of the fetal heart rate is evaluated along with the strength-duration and intensity of the contractions which together provide critical information regarding the well-being of the baby. Over the past several decades there has been controversy with respect to the interpretation of the fetal heart monitoring strips by physicians. There is "agreement", however, on various definitions that represent signs which are "reassuring" or "non-reassuring" requiring intervention. Below are some basic definitions and examples of fetal heart monitoring strips and their Intrapartum Fetal Heart Rate Monitoring

Late Deceleration: A gradual decrease in FHR with the onset of deceleration to nadir ≥30 seconds. The onset of the deceleration occurs after the beginning of the contraction, and the nadir of the (deceleration) occurs after the peak of the contraction.Variable: The abrupt decrease in FHR of ≥ 15 beats per minute measured from the most recently determined baseline rate. The onset of deceleration to nadir is less than 30 seconds. The deceleration lasts ≥ 15 seconds and less than 2 minutes. A shoulder, if present, is not included as part of the deceleration.Early deceleration:The gradual decrease in FHR with the onset of deceleration to nadir ≥30 seconds. The nadir (lowest point) occurs with the peak of a contraction.

B) ACOG Guidelines: Plaintiff PerspectiveIn or around July 2009, ACOG Practice Bulletin Number 106 put forth recommendations regarding Intrapartum Fetal Heart Rate Monitoring, Nomenclature, Interpretation, and General Management Principles.12 Specifically, a tiered fetal heart rate interpretation system was established which classified electronic fetal monitoring into three categories.13 The general consensus among plaintiff attorneys is that the terms were chosen because of medical-legal implications and favor the medical providers at the expense of the infant's well- being.14"The new guidelines have been widely criticized for being dangerously overbroad and ambiguous. No longer does ACOG recommend preparations for prompt delivery by the most expeditious means when the FHR pattern suggests the potential for fetal compromise? Instead, the new ACOG guidelines recommend that clinicians watch ominous fetal heart rate patterns and wait until there is the need for an emergent cesarean section in order to rescue the fetus from damage or death."15Therefore, in order to successfully overcome the bias of the ACOG guidelines, the practitioner must always be directing his/her questioning to the underlying thought process of the physician, midwife, or nurse, the evolution of the infant's condition, and the safety measures that hospitals promulgate to better protect babies during labor i.e. hospital protocols. The following issues should always be probed during the defendant depositions and themed during the trial:

  • Was the Fetal Heart Rate interpreted correctly?
  • Was the basilar Fetal Heart Rate of infant normal at the outset of labor?
  • Was a meaningful response started?
  • Was the response timely and effective?
  • Was the communication effective between practitioners?
  • Was waiting and watching prudent?
  • Is the baby well-oxygenated?
  • Is there a risk of hypoxia?
  • Is there a risk of acidemia?
  • Is the fetal heart monitoring strip improving or deteriorating?
  • Is the infant remote from delivery?

Do not be surprised, however, if the obstetrician, midwife, or nurse takes a position at deposition or trial that utilizing fetal heart monitoring is NOT predictive of hypoxia, metabolic acidosis, or brain damage to the infant. The focus of ACOG is on protecting their members from lawsuits so they use terminology that the fetal heart monitor strip can only be interpreted as "reassuring" or "indeterminate" but cannot predict whether the infant will suffer from cerebral palsy. When you encounter this defense you must be prepared to impeach the defendant and quickly shut down his/her defense. The most obvious method of undermining the defense is to have the medical provider concede that fetal heart monitoring is employed for most if not all obstetrical patients they treat. And, make certain to establish that this practice is for the safety of mom and baby.I have found that the practitioner can also be quite successful by confronting the doctor with an "authoritative source" such as Best Practices in EFM Definition, Interpretation, and Management, a State-Wide Campaign to Standardize Electronic Fetal Monitoring Education Final Report May 2011 The Final Report [Collaboration of Health Association of New York State, The American Congress of Obstetrics and Gynecologists and New York State Department of Health].16 This report, for example, provides support for the predictive nature of correctly interpreting fetal heart monitoring strips. "EFM is the most common method of intrapartum surveillance, used in approximately 85% of births nationwide. Appropriate utilization and a standardized approach to the interpretation of EFM can warn the obstetrical team of potential fetal complications that may lead to injury including brain damage or death."17 Reading this quote into the record at deposition or trial will surely impeach the testimony of the physician.Additionally, when questioning the defendant doctor about the relationship between intrapartum asphyxia and cerebral palsy it is always helpful to cite to Joseph Volpe, Neurology of the Newborn 4th Edition 2001 which provides scientific and statistical evidence that 12% to 23% of cerebral palsy can be related to intrapartum asphyxia.18The practitioner must also be well versed in additional obstetrical issues encountered in these cases involving the length of labor (whether protracted or arrested); the baby's presentation during labor; utilization of Pitocin (labor augmenting drug increasing frequency duration and intensity of contractions); resuscitative measures to change fetal monitor strip from non-reassuring back to reassuring; the presence of meconium; molding and caput; and tachysystole. All of these factors may provide strong forensic support for successful litigation.

C) Markers of Hypoxic Ischemic Encephalopathy (HIE) at BirthIn order to successfully litigate catastrophic infant cases, the practitioner must be conversant in the "markers" at birth that provide the crucial support of HIE deriving from an intrapartum event. Although the detail of this area is beyond the discussion of this paper, the following is a summary19.

  • Apgar Score of less than 5 at 5 minutes and 10 minutes
  • Fetal Umbilical Artery Acidemia pH less than 7.0 or base deficit greater than or equal to 12 mmol/L
  • Neuroimaging Evidence of Acute Brain Injury Seen on Brain MRI or MRS consistent with Hypoxia-Ischemia
  • Presence of Multisystem Organ Failure Consistent with Hypoxic-Ischemic Encephalopathy.

The above markers of HIE is representative of a physiological process where the infant becomes severely compromised during the labor. As the infant becomes more oxygen-deprived there are compensatory mechanisms that are triggered. The first defense by the infant is an increase in the heart rate which increases the oxygen. As the condition continues to persist the infant begins to burn off other reserves such as sugar (glucose). As the condition continues to deteriorate there is a build-up of lactic acid in the body. Eventually, oxygenated blood is being shunted to the most vital organs: heart, brain, and adrenal gland to preserve life. If the condition continues to persist, eventually brain cells will begin to die, and ultimately the most vital areas of the brain located in the grey matter, those responsible for cognition, movement, and ultimately breathing will succumb and capitulate until the infant's ultimate demise.

IV. FETAL DEMISE CASESOne of the great tragedies in life is the loss of a child. When you meet the mother and father of a stillborn infant in your office for an initial conference there is a sense of complete devastation. Many have taken the pregnancy to term, with all of the excitement and love directed toward their expectant baby. When you consider accepting the case one of the first requisites you should contemplate is the gestational age at the time of delivery. If the "fetus" was not viable (less than 24 weeks) at the time of the delivery this will prove to be a much greater hurdle to overcome.20Additionally, the number of abortions previous and post will always play a strong role in the defense. As the plaintiff's attorney, you should inquire about whether "Mom" has sought counseling from a social worker, psychologist, and/or psychiatrist, who will provide the records documenting the diagnosis of her mental health condition. Clearly, if the plaintiff can demonstrate long term treatment and an inability to cope with life since the loss, the gravity and weight of the claim increase substantially.According to Public Health Law Section 4130(1), a "live birth" is:The complete expulsion or extraction from its mother of a product of conception irrespective of the duration of pregnancy, which, after such separation, breaths, or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached; each product of such birth is considered live born.A. Broadnax v Gonzalez, 2 N.Y.3d 148, 777 N.Y.S.2d 416,809 N.E.2d 645 (2004) and its' progeny1) In 2004, the Court of Appeals held in Broadnax v Gonzalez, 2 N.Y.3d 148, 777 N.Y.S.2d 416, 809 N.E.2d 645 (2004) that if the baby dies while in utero and is stillborn there is a cause of action of recovery for the emotional distress of the mother even in absence of independent physical injury. The facts of Broadnaxallege that the mother was full term and the physician delayed several hours in performing a caesarian section. The mother had been suffering from an undiagnosed placental abruption and by the time the caesarian section was performed the infant was dead. Another case, heard at the same time by the Court of Appeals, was Fahey v. Canino 2 N.Y.3d 148, 777 N.Y.S.2d 416, 809 N.E.2d 645 (2004) which involved a mother who was 18 weeks pregnant with twins and complained of abdominal pains and cramping. The physician diagnosed sciatica as he presumed one of the twins was pressing against the sciatic nerve. The mother contacted the doctor's partner two days later with complaints of pain and vomiting. The mother was advised to rest and told that the pain was again related to sciatica and she must have eaten something that disagreed with her. Two hours later she was on the toilet delivering the first twin who was dead. An ambulance took her to the hospital and the second twin was delivered dead as well. The claim in the case was that a cervical cerclage should have been placed to suture her cervix and prevent the early delivery.The Court of Appeals overruled Tebbutt v Virostek, 65 N.Y.2d 931, 493 N.Y.S.2d. 1010, 483, N.E.2d 1142 [1985] providing dicta that "Tebbutt engendered a peculiar result: it exposed medical caregivers to malpractice liability for in utero injuries when the fetus survived but immunized them against liability when their malpractice caused a miscarriage or stillbirth. In categorically denying recovery to a narrow, but indisputably aggrieved class of plaintiffs, Tebbutt is at odds with the spirit and direction of our decisional law in this area." Broadnax 2 N.Y.3d at 154. Therefore, the Court of Appeals held that an expectant mother may maintain a cause of action for damages for emotional distress related to malpractice which results in miscarriage. See id.2) The Court of Appeals refused to extend the Broadnax/Fahey ruling to the emotional loss of the Mother in the case where a catastrophically injured infant survives in the case of Sheppard-Mobley v King, 4 N.Y.3d 627, 797 N.Y.S2d 403 830 N.E.2d 301 (2005). Sheppard-Mobley is a case where a woman who had large fibroids in her uterus was advised to terminate her pregnancy as it would likely not last beyond the fifth month (20 weeks). The mother agreed to go forward with a non-surgical abortion and was administered two doses of the drug methotrexate and subsequently confirmed with her radiologist that there was no fetal heartbeat. The termination of the pregnancy was thought to be complete, however, upon experiencing abdominal cramping and pelvic discomfort it was determined that she was still pregnant and at her 28th week of gestation. The plaintiff made a claim for damages for her emotional distress based upon the subsequent birth of a live infant with physical injuries. The Court of Appeals held that "Broadnax/Fahey does not apply here where the infant plaintiff was injured in utero, but carried to term and born alive" with its' own cause of action. Id. at 637.3) In Amin v. Soliman, 67 A.D.3d 835, 889 N.Y.S.2d 629 (2d Dep't. 2009) The Appellate Division, Second Department held that it was an issue of fact for the jury as to whether the fetus was stillborn. Even though the fetus was born alive and a heartbeat was generated 15 minutes after being removed from the womb, there was no respiratory response and the fetus's Apgar score was zero at 1 minute, 5 minutes, and 10 minutes. The fetus was placed on a ventilator for more than 3 weeks and declared dead within 10 minutes of being removed from the ventilator.4) In Levin v New York City Health and Hospitals Corporation, 119 A.D.3d 480, 990 N.Y.S.2d 490 (1st Dep't 2014) the Appellate Division, First Department affirmed the Hon. Douglas E McKeon, J., and held that a mother could not maintain a cause of action for emotional damages where the infant was born alive without life support being administered for several hours, had a heartbeat with apgars of 1 at 1 minute and 1 and 10 minutes and had been issued a birth certificate. The allegations of malpractice entailed a mother who was 19 weeks pregnant and had requested a cerclage for cervical dilatation at 3 centimeters with membranes intact at the time of presentation which was never performed. The infant was determined to be previable and no resuscitation was provided just comfort care for several hours. Id. at 483.[Interesting paradox of how a previable fetus could be determined to be born alive.]

V. The New York Medical Indemnity Fund (MIF)New York Public Health Law §2999-g establishes that the purpose of the MIF "is to provide a funding source for future health care costs associated with birth-related neurological injuries, in order to reduce premium costs for medical malpractice insurance coverage". New York Public Health Law §2999-h (4) establishes that in order for a plaintiff to qualify for the fund they must have experienced "a birth-related neurological injury" as the result of medical malpractice. New York Public Health Law §2999-h (1) defines "birth-related neurological injury" as "an injury to the brain or spinal cord of a live infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor delivery or resuscitation or by other medical services provided or not provided during delivery admission that rendered the infant with permanent and substantial motor impairment or with a developmental disability".After the Medical Indemnity Fund was passed there were remaining questions as to how a settlement would be allocated between the Fund portion of the settlement and the Non-Fund portion of the settlement. Added to this ambiguity was the fact that defendants remained responsible for the attorney fee attributable to the Fund portion. The leading case is Mendez v The New York And Presbyterian Hospital, 34 Misc.3d 735 (Sup. Ct. Bronx 2011) where the Hon. Douglas E McKeon determined in an obstetrical medical malpractice case, that settled for 5,500,000 Million Dollars, that a 50/50 allocation between the MIF damages and the Non-Fund damages was appropriate. Id. at 743-745. The Court held that there must be a good faith allocation of a settlement between the Fund and Non-Fund damages in an obstetrical malpractice case: In other words, an allocation which satisfies the legislative intent of the MIF statute and generates savings to an insurer or medical provider appropriate to the facts of the case. 747. The underlying purpose of this legislation was " reducing both Medicaid costs and medical malpractice premiums while, on a human level, providing a lifetime of guaranteed care, geared to obstetrical mishap victims, as well as the comfort which comes to a parent by the knowledge that help will be provided to a handicapped child when mom and dad are gone." Id. at 741.From the plaintiff's perspective, when in settlement discussions, there should be an emphasis on obtaining as much up-front cash as possible while also understanding the value to the injured infant of being enrolled in the Fund. Regardless of the amount allocated to the Fund, the services rendered are needs-based and include more than just payment for medical care but rather also includes rehabilitative care, custodial care, durable medical equipment, home modifications, assisted technology, vehicle modifications, medications, and medical supplies, etc.,Included within is the Mendez decision; Hon. Douglas E. McKeon, New York's Innovative Approach to Medical Malpractice, 46, New Eng. L. Rev. 475 [2012] and Title 4 of Article 29D of the Public Health Law.

1 Mary E D'Alton, M.D. et al. The American College of Obstetrics and Gynecologists. Neonatal Encephalopathy and Neurologic Outcome Second Edition, Page 223 March 2014: Definitions of Critical Medical Conditions " Cerebral Palsy: Chronic Static neuromuscular disability characterized by aberrant control of movement or posture appearing early in life and not the result of recognized progressive disease;" "Hypoxia: The decreased level of oxygen in the tissue" Hypoxemia Decreased oxygen content in the blood" "Hypoxia-ischemia: Reduced amount of oxygen and inadequate volume of blood delivered to the tissue; can cause brain injury if delivery of oxygen and glucose falls below critical levels." Acidemia: Increased concentration of hydrogen ions in the blood". "Pathologic Fetal Acidemia: A pH level associated with adverse neurologic sequelae" (usually less than 7).

2 F. Gary Cunningham, M.D et al. Williams Obstetrics Twenty-Second -Edition, at 856 (2005). "In the United States in 2001 almost 28,000 infants died in their first year of life. Preterm Birth which is defined as delivery before 37 completed weeks was implicated in approximately two-thirds of these deaths."

3 Id.

4 Mary E D'Alton, M.D. The American College of Obstetrics and Gynecologists. Neonatal Encephalopathy and Neurologic Outcome Second Edition, Page 139-147 March 2014 "Box 9-4 Selected Neonatal Factors that May Point to a Genetic Cause for Encephalopathy Dysmorphic Features Observation of abnormal findings (head circumference: body length ratio; marked hypotonia; the impaired level of consciousness, seizures; apneic attacks) with no (or minimal) intraparum labor or delivery factors Sick neonate-not sucking, not feeding, vomiting, obtunded Major congenital anomalies Prolonged hyperbilirubinemia Metabolic abnormalities (eg refractory metabolic acidosis, hyper ammonemia) Brain imaging findings that indicate any of the following: cerebral dysgenesis, agenesis of the corpus callosum, polymicrogyria, lissencephaly, pachygyria, hydrocephalus, hydranencephaly, schizencephaly heterotopias" at p142.

5 Vincenzo Berghella, MD. UpToDate Cervical Insufficiency (May 2015) was used to describe painless cervical dilation leading to recurrent second-trimester pregnancy losses/births of otherwise normal pregnancies. The structural weakness of cervical tissue was thought to cause or contribute to these adverse outcomes. The term has also been applied to women with one or two such losses/births or at risk for second-trimester pregnancy loss/birth.

6 "New ACOG Guidelines Just Released". Preeclampsia Foundation. (Nov. 14, 2013). (The rate of preeclampsia in the US has increased by 25% in the last two decades and is a leading cause of maternal and infant illness and death. Preeclampsia is a serious condition that typically starts after the 20th week of pregnancy; high blood pressure is a main contributing factor. Women who have chronic hypertension, have had preeclampsia in a previous pregnancy, are 35 or older, are carrying more than one fetus, have diabetes or kidney disease, are obese, are African American, or have certain immune disorders are at increased risk of developing preeclampsia.).

7 Errol R. Norwitz, M.D. PhD., John T Repke, M.D. UpToDate Preeclampsia: Management and Prognosis (May 2015).

8 Fetal Non-Stress Test. American Pregnancy Association. (March 2006).

9 Frank A Manning, M.D. The Fetal Biophysical Profile. UpToDate (May 11, 2015) ("We generally base an evaluation of amniotic fluid volume on ultrasound measurement of the largest visible pocket. To score 2 points, the selected largest pocket must have a transverse diameter of at least 1 centimeter and a vertical pocket of at least 2 centimeters. However, other methods of amniotic fluid volume assessment can be used (eg, normal amniotic fluid index is 5 to 25 cm, normal single deepest vertical pocket is 2.1 to 8 cm). ... There is a significant inverse relationship between oligohydramnios and perinatal mortality and morbidity.").

10 Gary Cunningham, M.D., et al. Williams Obstetrics Twenty-Second -Edition, at 446 (2005).

11 Intrapartum Fetal Heart Rate Monitoring. (June 10, 2015).

12 ACOG Practice Bulletin, Clinical Management Guidelines for Obstetrician-Gynecologists, Intrapartum Fetal Heart Rate Monitoring: Nomenclature, Interpretation, and General Management Principles. Number 106, (July 2009, Reaffirmed 2013.)

13 "Category I: Category I FHR tracings include all of the following: Baseline rate:110-160 Beats per minute; Baseline FHR Variability: moderate; Late or variable decelerations: absent; Early Decelerations: present or absent; Accelerations: present or absent; Category II: Category II FHR tracings includes all FHR tracings not categorized as Category I or Category III. Category II tracings may represent an appreciable fraction of those encountered in clinical care. Examples of category II FHR tracings include any of the following: Baseline Rate: Bradycardia not accompanied by absent baseline variability, Tachycardia Baseline FHR variability: Minimal baseline variability absent baseline variability with no recurrent decelerations: Marked baseline variability: Accelerations: Absence of induced accelerations after fetal stimulation; Periodic or episodic decelerations: recurrent variable decelerations accompanied by minimal or moderate baseline variability: prolonged decelerations more than 2 minutes but less than 10 minutes; Recurrent late decelerations with moderate baseline variability; variable decelerations with other characteristics such as a slow return to baseline, overshoots or "shoulders"; Category III FHR tracings include either Absent baseline FHR variability and any of the following: Recurrent Late decelerations, Recurrent variable decelerations Bradycardia, Sinusoidal pattern." Id. at p 4.

14 John A. Lancione. What We Do Does Not Matter Anymore: The New Position of the American College of Obstetricians and Gynecologists on Electronic Fetal Monitoring. American Association for Justice BTLG Newsletter (January 2011).

15 Id.

16 Best Practices in EFM Definition, Interpretation, and Management, a State-Wide Campaign to Standardize Electronic Fetal monitoring Education. Final Report, HANYS, ACOG, New York State Department of Health at 2 (May 2011).

17 Id.

18 Joseph J Volpe. Neurology of the Newborn at 283-284 (Saunders, 4th Edition 2001 ) "Although the data just described indicate that the majority of children examined later with the diagnosis of cerebral palsy did not sustain intrapartum asphyxia the findings have been interpreted by some to mean that intrapartum brain injury is rare or nonexistent and therefore unimportant. As noted in the introduction to this section, such a conclusion is incorrect. A large body of experimental, clinical, and brain imaging data shows that brain injury occurs intrapartum in a large absolute number of infants. Indeed, in view of the relatively high prevalence of cerebral palsy in most countries, generally 2 to 3 cases per 1000 children born even a relatively small percentage of cases caused by intrapartum events translates into a very large absolute number."

19Mary E D'Alton, M.D. The American College of Obstetrics and Gynecologists. Neonatal Encephalopathy and Neurologic Outcome Second Edition, pp. xxii-xxiii (March 2014) .

20 Pam Belluck. "Premature Babies May Survive at 22 Weeks if Treated, Study Finds". The New York Times, 6 May 2015: "The study, of thousands of premature births, found that a tiny minority of babies born at 22 weeks who were medically treated survived with few health problems, although the vast majority died or suffered serious health issues. Leading medical groups had already been discussing whether to lower the consensus on the age of viability, now cited by most medical experts as 24 weeks".