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Morrell v. Finke11/3/2005
ke and the defense experts in obstetrics, pediatric neurology, and pediatric neuroradiology all testified that Madeline's neurological condition did not result from perinatal hypoxic ischemic injury or from any other aspect of labor or delivery.
All experts agreed that the cause of cerebral palsy remains unknown in a large percentage of cases. Numerous causes for cerebral palsy exist, including infections such as rubella, herpes, and other bacterial and viral infections during pregnancy, and many types of genetic causes, metabolic causes, chromosome changes, exposure to chemical toxins, insults at earlier times in pregnancy, and prematurity. Dr. Ater acknowledged that despite the research and efforts over the past decade or more, the percentage of cerebral palsy is not getting better, as more sick and premature babies are surviving.
The American College of Obstetricians and Gynecologists ("ACOG") has issued "Bulletin 163" setting forth criteria to assist in determining whether labor-and-delivery hypoxia has caused cerebral palsy. Those criteria are (1) a low Apgar score of zero to three for more than five minutes, (2) seizures and or hypotonia within the first twelve to twenty-four hours, (3) multi-level system failures, and (4) an umbilical cord arterial blood sample with a pH less than 7.0.
Defendants and their experts claim that none of these criteria were met in the present case; Madeline's five-minute Apgar score was 6, she had no seizures or hypotonia within the first twelve to twenty-four hours, she had no multi-level system failures, and she had a pH of more than 7.0.
Plaintiffs' experts asserted that Madeline did meet the ACOG criteria. Nurse Walker gave Madeline a five-minute Apgar score of 6. But Nurse LaMont testified that Apgar scores are "subjective" and that "there are times when people will be a little generous on these scores, for whatever reason, and that can indeed increase the Apgar score, and it might - in my hands or your hands, it might be two different scores." Dr. Ater testified that Madeline's five-minute Apgar score was "generous"; "this baby needed resuscitation including ventilation [by the NICU team]. One of the scores was for breathing. It doesn't make sense. I mean, I'm not sure how they scored that baby was breathing when they were giving bag and mask artificial ventilation." He said that " baby who is so depressed that it can't even breath is not going to have all these reactions and motor movements" required to obtain Apgar points for muscle tone, reflex, and skin color.
Dr. Ater and Nurse LaMont both testified that Madeline did have hypotonia when she was born. And after she was born, for the first three days of her life, Madeline was intubated, on a respirator, and either paralyzed with a drug called Pavulon, so that she could not fight against the respirator breathing for her, or heavily sedated. Therefore, Dr. Ater said there is no way to know whether, if unparalyzed and unsedated, Madeline would have experienced seizures; the drug-induced paralysis and heavy sedation prevented any seizures. Madeline did suffer multi-level system failures from her delivery; she suffered internal bleeding, creating hematomas on her adrenal gland and liver. And finally, Plaintiffs contended that, in fact, Madeline's pH level at birth was much lower than 7.32, around 6.9 to 7.1.
Plaintiffs contend that the blood obtained by Dr. Finke showing a 7.32 pH was not properly drawn for pH testing. Plaintiffs' experts testified that obtaining an accurate pH reading from cord blood requires the use of a hepranized syringe inserted into the umbilical cord's artery and requires that the drawn blood sample be placed on ice during tra
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