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Case Example: Birth Injury Infection
In 2003, our office was asked to investigate the case of a 13 year old girl who was born at a teaching hospital in 1990 during a standard vaginal delivery without complications. She developed seizures at six months and cerebral palsy by two years of age. By all accounts, the baby appeared well at birth and during her initial hospitalization and during her initial well-baby visits until she was six months old. At that visit her mother reported a history of right arm twitching accompanied by twitching of the face and the eye which was later diagnosed to be infantile seizures. The child was ultimately diagnosed with infantile spasm, static encephalopathy, seizure disorder, scoliosis and subsequently cerebral palsy.
When the family consulted with us, the child was then 13 years old and there was no diagnosis as to the cause of the cerebral palsy (or what triggered the infantile seizures). Two other lawyers had investigated and declined the case. As we investigated the case, two things became apparent that appeared to have been overlooked. First, the mother had been diagnosed with vaginal herpes and told the attending obstetrician she had an outbreak days before the delivery. The standard of care at that time required a mother with vaginal herpes be offered a c-section to reduce the risk of transmission if she was having an outbreak or had a recent outbreak. Second, no one had taken a second look at the initial brain imaging done to try to determine if the brain damage was secondary to something other than the seizures which were not apparent until the baby was six months old. Recognizing that herpes can be passed to a newborn at delivery during a vaginal delivery we obtained all the original brain imaging and brought it to a world-renowned expert in neuroradiology who concluded that the pathology in the brain imaging was completely consistent with a viral encephalitis beginning at the time of birth (herpes).
Although there was some consideration of the possibility of herpes as the etiology of the child’s injuries in the initial pediatric hospitalization records, the child had never been tested for exposure to the herpes virus. We then had the child’s blood tested which revealed an elevated herpes titer and evidence of a longstanding chronic HSV 2 infection. With this new information, we proceeded to file an action against the hospital which after extensive discovery proceeded to trial. After one week of trial, the hospital consented to a substantial seven figure settlement.
If you have questions, or would like to discuss your unique situation, contact us today.