Medical Malpractice – Birth Injuries

Tragically, severe injuries can occur during pregnancy, labor, or shortly after birth.

Many parents face the challenge of providing for a child with special needs and seeking to secure the child’s future care and treatment. If medical error caused the child’s injury, a medical malpractice claim may be possible, to help ensure financial security for potentially staggering medical and financial costs. While most injuries or illnesses are usually not caused by medical treatment errors, others are linked closely with medical negligence or medical mistakes. Thus, it is necessary to take a close look, to determine whether a birth injury was caused by a physician or hospital mistake, or if the birth injury was something that simply could not be avoided.

Cerebral palsy is one major group of illnesses, which may result from avoidable medical mistakes.

Medical History of Cerebral Palsy

In the 1860s, an English surgeon named William Little wrote the first medical descriptions of a puzzling disorder that struck children in the first years of life, causing stiff, spastic muscles in their legs and, to a lesser degree, in their arms. These children had difficulty grasping objects, crawling, and walking. As they grew up, they did not get better, but they did not get worse. Their condition, which was called Little’s disease for many years, is now known as spastic diplegia. It is just one of several disorders that affect control of movement and are grouped under the term cerebral palsy.

In fact, cerebral palsy is an umbrella-like description for several chronic disorders impairing control of movement, which appear in the first few years of life and generally do not worsen over time. The term cerebral refers to the brain’s two halves, or hemispheres, and palsy means any disorder that impairs control of body movement. Thus, problems in muscles or nerves do not cause these disorders. Instead, faulty development or damage to motor areas in the brain, disrupt the brain’s ability to control movement and posture adequately.

Symptoms of cerebral palsy range in severity. An individual with cerebral palsy may have difficulty with fine motor tasks, such as writing or cutting with scissors; experience trouble maintaining balance and walking; or have involuntary movements, such as uncontrollable writhing motion of the hands. The symptoms differ from one person to the next, and may even change over time in the individual. Other medical disorders, like seizures or mental impairment, may affect some people with cerebral palsy.

Contrary to common belief, cerebral palsy does not always cause profound disability. While a child with severe cerebral palsy might be unable to walk and need extensive, lifelong care, a child with mild cerebral palsy might require limited special assistance. Cerebral palsy is not contagious and not usually inherited from one generation to the next. At this time, there is no cure, although scientific research continues to yield improved treatments and methods of prevention.

The United Cerebral Palsy Association estimates that more than 500,000 Americans have cerebral palsy. Despite advances in preventing and treating certain causes of cerebral palsy, the number of children and adults it affects has remained essentially stable, or may have risen slightly over the past 30 years. This is partly because more critically premature and frail infants are able to survive with improved neonatal intensive care. Unfortunately, many of these infants have developmental problems of the nervous system or suffer neurological damage. Medical research is under way to improve care for these infants.

Early Signs

The signs of cerebral palsy usually appear before 3 years of age, so that parents often are the first to suspect that their infant is not developing normal motor skills. Frequently, infants with cerebral palsy are slow to reach developmental milestones, such as learning to roll over, sit, crawl, smile, or walk. Sometimes this is called developmental delay.

Some affected children have abnormal muscle tone. Decreased muscle tone is called hypotonia and caused a baby to seem flaccid and relaxed, even floppy. Increased muscle tone is called hypertonia and causes the child to seem stiff or rigid. In some cases, a newborn baby has an early period of hypotonia that progresses to hypertonia after 2 to 3 months. Affected children also may have unusual posture or favor one side of the body.

Parents who are concerned about their baby’s development for any reason should contact their physician, who can help distinguish normal variations in development from a developmental disorder.

Clinical Diagnosis

Doctors diagnose cerebral palsy by testing an infant’s motor skills and looking carefully at the infant’s medical history. In addition to checking for the symptoms described above — slow development, abnormal muscle tone, and unusual posture — a physician also tests the infant’s reflexes and looks for early development of hand preference.


Reflexes are movements that the body makes automatically in response to a specific cue. For example, if a newborn baby is held on its back and tilted so the legs are above its head, the baby will automatically extend its arms in a gesture, called the Moro reflex, that looks like an embrace. Babies normally lose this reflex after the age of 6 months. However, those with cerebral palsy may retain it for much longer. This is just one of several reflexes that a physician may check.

Hand Preference

Doctors also look for hand preference — a tendency to use either the right or left hand more often. When the doctor holds an object in front and to the side of the infant, a child with hand preference will use the favored hand to reach for the object, even when the object is closer to the opposite hand. During the first 12 months of life, babies do not usually show hand preference. But infants with spastic hemiplegia, may develop a preference much earlier, because the hand on the unaffected side of the body is stronger and more useful.

Movement Problems

The next step in diagnosing cerebral palsy is ruling out the other disorders that may cause movement problems. Most importantly, doctors must determine that the child’s condition is not getting worse. Although its symptoms may change over time, cerebral palsy by definition is not progressive. If a child is continuously losing motor skills, the problem is more likely to spring from other problems, like genetic diseases, muscle diseases, metabolism disorders, or tumors in the nervous system. The child’s medical history, special diagnostic tests, and, in some cases, repeated check-ups can help a physician determine whether or not disorders are at fault.

CT Scan

The doctor may also order special tests to learn more about the possible cause of cerebral palsy in an individual child. One test is computed tomography, or CT, which is a sophisticated imaging technique that uses x-rays and a computer to create an anatomical picture of the brain tissues and structures. A CT scan may reveal brain areas that are underdeveloped, abnormal cysts (sacs often filled with liquid) in the brain, or other physical problems. With the information from CT scans, doctors may be better equipped to judge the long-term outlook for an affected child.

MRI Scan

Magnetic resonance imaging, or MRI, is a brain imaging technique used to identify brain disorders. This technique uses a magnetic field and radio waves, rather than x-rays. An MRI gives better pictures of structures or abnormal areas located near bone than a CT scan.


Another test that exposes problems in brain tissue is ultrasonography, or ultrasound. This technique bounces sound waves off the brain and uses the pattern of echoes to form a picture, or sonogram, of its structures. Ultrasonography can be used with infants before the bones of the skull harden and close. Although it is less precise than CT and MRI scans, this test can detect cysts and structures in the brain, is less expensive, and does not require long periods of immobility.


If the doctor suspects a seizure disorder, he or she may order an electroencephalogram, or EEG. During this test, special patches called electrodes are placed on the scalp and will record the natural electrical currents inside the brain. The recording can help the doctor see patterns in the brain’s electrical activity which suggest a seizure disorder.

The Intelligence Test Issue

Intelligence tests are often used to determine if a child with cerebral palsy is mentally impaired. However, some children’s intelligence may be underestimated because problems with movement, sensation, or speech due to cerebral palsy make it difficult for them to perform well on these tests.

Medical Problems Related to Cerebral Palsy

Physicians will look for other conditions linked to cerebral palsy, including seizure disorders, mental impairment, and vision or hearing problems. For potential vision problems, the doctor may recommend an examination by an ophthalmologist. If the treating physician suspects hearing impairment, he or she may refer the patient to an otologist. Identifying these accompanying conditions is important and is becoming more accurate as ongoing research yields advances that make diagnosis easier. Specific treatments may address many of these conditions, to improve the long-term outlook for those with cerebral palsy.

What Causes Cerebral Palsy?

Often, parents of children with cerebral palsy are led to believe that their child suffers from a birth defect that was unavoidable. Rarely are they told that medical errors caused their child’s disability. Many parents feel that there is no way to know what caused cerebral palsy and are unaware of the ways to search for answers. The reality is that cerebral palsy is sometimes the result of a medical mistake that deprived a child of oxygen during pregnancy, often while the mother was in labor.

Doctors have an obligation to provide adequate care during all stages of a woman’s pregnancy, including labor and the period immediately after birth. Unfortunately, doctors are capable of error or negligence.

Physician mistakes that may cause cerebral palsy include:

  • Failing to perform a cesarean section when the fetus is in distress or getting too little oxygen.
  • Inadequately monitoring the mother during pregnancy and throughout the labor process.
  • Misinterpreting test results during pregnancy, or outright failure to conduct necessary tests.
  • Failing to monitor closely when the mother has a condition like diabetes, heart disease, hypertension, asthma, renal disease, lupus, or thyroid disease.

Peace of Mind

If your child has cerebral palsy, it may have been caused by medical malpractice. You owe it to your child and your family to see if the cause of your child’s condition can be determined. A good malpractice attorney will obtain all relevant medical records, review all documentation, and consult with leading medical experts to determine definitively whether a medical professionals negligence caused your child’s condition.

The Lifelong Cost of Caring for Your Child

The cost of caring for children who suffer from cerebral palsy can be financially catastrophic. You must expect significant expenses throughout your child’s lifetime, because the condition will not improve over time. However, if your child’s condition is determined to be the fault of a hospital or physician, then there should be medical malpractice insurance in place to provide financial compensation for these costs.

If your child or grandchild has been diagnosed with cerebral palsy that you believe may have been caused by a doctor or hospital’s mistake, talk with a lawyer experienced in cerebral palsy law.

Attorney Marya Sieminski joined the Law Offices of Sam Bernstein in 2003. She is admitted to practice law in Michigan state courts and in the U.S. District Court for the Eastern District of Michigan. She earned her Bachelor of Science degree at the Massachusetts Institute of Technology and graduated magna cum laude from Wayne State University Law School. Marya has worked as a trial lawyer for 10 years and exclusively represented victims in personal injury litigation and in workers compensation claims. She also was appointed by the Governor to serve on the State of Michigan Workers Compensation Qualifications Advisory Committee.

The Law Offices of Samuel I. Bernstein, our Michigan personal injury and medical malpractice law firm, has represented the victims of serious instances of medical malpractice for three generations.