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Total Body Cooling and Birth Injury Claims

Every major city in Canada has a neonatal intensive care unit that provides cooling to newborn babies. A report from Alberta Health Services in July 2016 notes about 40 newborns undergo therapeutic cooling in Calgary every year. The report further noted that about 500 babies each year in Alberta were at risk of brain injury due to oxygen deprivation around the time of delivery. All such babies should be cooled but the cooling must take place within 6 hours of delivery. With the addition of ambulances with portable cooling devices the number of babies cooled each year in Canada will greatly increase.

The fact that a newborn baby has undergone cooling is a very relevant factor in the analysis of whether there may have been a preventable injury. This article explains why. I will start with an explanation of the medicine and why some newborn babies are cooled. I will then explain how all of that ties into legal issues and why consulting with a lawyer makes sense.

When a lawyer is consulted about a birth injury, the lawyer will begin the analysis by determining a few critical elements: what caused the injury and when did the brain injury occur. How do these questions relate to cooling?

What Caused the Brain injury?

During labour and delivery, a fetus may experience oxygen deprivation due to lack of blood flow and/or reduced oxygen reserves. For example, oxygen deprivation can be caused by compression of the umbilical cord or by frequent uterine contractions without an adequate rest period in between. If the oxygen deprivation lasts long enough or if the fetus does not have a chance to recover in between contractions, the fetus will begin to decompensate and is at risk of suffering a permanent brain injury. The longer the exposure to oxygen deprivation, the more severe the injury.

This oxygen deprivation at or around delivery can injure the baby’s brain cells. This is the primary insult. As time passes, the injured brain cells begin to swell. The swelling of the injured cells can cause injury to other cells. This is the secondary injury which occurs hours after the primary insult.

Cooling reduces the swelling of the injured brain cells which reduces the secondary injury. A baby will only receive cooling if there is clear evidence to conclude the baby has suffered oxygen deprivation.

When Did The Brain Injury Occur?

As noted above, the cooling must occur prior to the swelling of the injured brain cells. This means that cooling should begin within about six hours of birth. Therefore, if the neonatologist orders cooling, he/she must have had enough evidence that the insult due to oxygen deprivation must have happened within the last six hours prior to cooling (ie. during the labour and delivery period).
Why Does This Matter?

It has been known for decades that a baby can suffer from injury due to oxygen deprivation at birth. The very foundation for monitoring during labour is to identify those fetuses who are not tolerating the stress of labour so as to allow the obstetrician to intervene before brain injury occurs. If your lawyer knows that the medical consensus was that he/she may have suffered a brain injury from oxygen deprivation (the what), at the time of labour and delivery (the when), it thus becomes a much simpler process of determining whether the monitoring was appropriate.


By Joe Miller, QC and Michael McVey