The key to success in a birth injury case is proving liability. Liability has two essential elements: a breach of the standard of care and causation. Where the allegation is that a newborn suffered injury due to poor care during labour and delivery (“intrapartum” care), we must prove that the doctors, nurses, and/or midwives failed to provide a level of care that met expected standards. We must also prove causation – that the poor obstetrical care resulted in the injury to the baby. As you would expect, proving both is highly dependent on medical literature.
Birth injury cases have additional scientific challenges because the methods of assessing fetal well-being in the mother's womb are limited and can be imprecise. In most cases involving intrapartum injury, the concern is with avoiding injury by ensuring adequate fetal oxygenation during labour and appropriately responding with interventions when the clinical evidence suggests impaired oxygenation. The main tool used to assess intrapartum fetal oxygenation is by monitoring the fetal heart rate (FHR), usually using an electronic fetal monitor (EFM).
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