Legal Aspects of Newborn Resuscitation

Eighty five percent of babies after birth will start breathing independently without any interventions. An additional 10% will do that after some stimulation is received from medical providers. Finally, 5% of all newborns will require some reviving procedures, called in medical jargon “resuscitation” or “cardiorespiratory resuscitation (CPR)” (Ref. 1).

Inability to provide proper resuscitation to a baby in need due to lack of personnel, inadequate skills, delay in notification, lack of equipment or medications, and malfunctioning equipment are frequently cited causes for malpractice litigation in neonatology.

In my article, I will briefly review key standards that pertain to neonatal resuscitation. In my experience as a neonatal chart reviewer, I found that a history of the need for CPR in a baby is the number one reason cited by clients when they ask me to analyze the quality of care provided to a neonatal patient (source article).

If you want to find out what other neonatal diagnoses frequently lead to malpractice suits, please read my full article here.

Review of standards on resuscitation of newborn patients.

According to guidelines developed by the American Academy of Pediatrics (AAP) and the American College of Obstetricians and Gynecologists (ACOG), assessment and resuscitation of the infant at delivery should be provided per the principles of the Neonatal Resuscitation Program (NRP) (Ref. 1).

The NRP guidelines tell us how neonatal resuscitation should be conducted. The most recent standards have been published in “Neonatal Resuscitation Textbook – 8th edition” (Ref.2).

Neonatal resuscitation guidelines in NRP have been developed by the American Academy of Pediatrics (AAP) in collaboration with the American Heart Association (AHA) and the International Liaison Committee on Resuscitation (ILCOR). Most providers learn neonatal resuscitation guidelines during the NRP course (NRP = Neonatal Resuscitation Program). In most institutions, all healthcare providers who come in contact with newborn babies, such as neonatologists, pediatricians, obstetricians, anesthesiologists, nurses, and respiratory therapists, must take an NRP course/certification once every two years.

However, obtaining NRP certification does not ensure anyone’s competency in newborn resuscitation, and neonatal teams should undergo frequent mock codes to learn how to work as a team and follow all the guidelines.

Simplifying, neonatal resuscitation consists of 3 core actions. After recognizing that the baby needs help, one or all of the following interventions should be provided if required:

a) Breathing – positive pressure ventilation (PPV) using a bag and mask and quick intubation for PPV if the need for continuous PPV is expected. A laryngeal mask is an acceptable and recommended tool for some situations. (LMA can be used if birth weight exceeds 2 kg).

b) Chest compressions – should be started if HR is below 60/min despite adequate ventilation.

c) Medications and fluids – Epinephrine and fluid boluses for appropriate indications. There is great emphasis on giving Epinephrine via umbilical venous or intraosseous access (IO = placing a rigid needle into the bone to reach bone marrow) if the heart rate remains below 60 per minute despite effective ventilation and chest compressions.

Professional organizations emphasize that having skilled resuscitation team members available in situations where risk factors for poor outcomes are present: “If risk factors are present, at least two qualified people should be present solely to manage the baby” (Ref 2)

Furthermore, NRP and Perinatal Care Guidelines say:

“A qualified team with full resuscitation skills……..should be identified and available for every resuscitation. The fully qualified team should be present at the time of birth if the need for advanced resuscitation measures is anticipated. It is not sufficient to have the team with these advanced skills on call at home or in a remote area of the hospital.”

I cited those two fragments above to make you realize that having skilled teams for neonatal resuscitation is expected and required everywhere where neonatal births occur.

Common medico-legal issues associated with newborn resuscitation

Below, I will describe the issues related to NRP that I often found during my chart reviews.

Inadequate staffing (low numbers or away from the hospital)

Unfortunately, certain hospitals do not have adequate staffing levels. It occurs more often in smaller, rural hospitals, so-called level 1 or level 2 nurseries. Those hospitals often struggle financially, have low volumes of patients, and, due to these factors, try to cut staffing levels whenever possible. That, in turn, contributes to high staff turnover or constant need for doctor-moonlighters and agency nurses.

Part-time doctors and nurses need help knowing how their temporary employer functions, what policies they have in place, where all the equipment is, etc.

Another problem in low-volume hospitals is that some professionals, such as neonatologists or pediatricians, may be on call from home. As a result, they must be forewarned about the potential delivery of a premature or sick baby to be able to come on time and participate in their resuscitation.

Medical providers lack resuscitation skills

I mentioned above that all health workers who care for pregnant women and babies are trained in newborn resuscitation. However, taking the course and obtaining NRP certification every two years does not make anybody proficient in performing CPR in the delivery room on a newborn baby.

Some nurses or pediatricians, particularly in low-volume hospitals, participate in the full resuscitation of a baby only once a year or less frequently. That can be a huge problem. If they don’t regularly participate in mock codes, they will not be able to perform efficiently and will lose all their skills.

Due to a lack of frequent exposure, staff forgets where the needed equipment is stocked or how to use it. Doing CPR procedures only once every two years during their NRP course is never enough.

Particular attention should be placed on enhanced and regular training of moonlighting staff new to the institution or providers that didn’t conduct CPR in the last 3-4 months.

Not following the NRP algorithm

Some medical providers do not follow the NRP algorithm. Lack of skills, knowledge, and proper equipment are the leading causes.

The most common deviations from the NRP algorithm that I noticed during my chart reviews are:

Delay in intubation or inability to intubate
Multiple intubation attempts without success
Not using the laryngeal mask airway device by providers who do not have the skills to intubate a patient that requires efficient ventilation (source article).
Multiple attempts to insert peripheral intravenous access rather than placing a UVC catheter or intraosseous access
Multiple doses of Epinephrine are given into an ET tube rather than intravenously.
Delay in giving intravenous Epinephrine dose for proper indications.

Incorrect assessments and decision-making

No matter how much experience medical providers have, resuscitating a baby will always be very stressful for all participants.

Panic, stress, and lack of frequent training or exposure to similar events contribute to faulty assessments and decisions during neonatal resuscitation.

The frequent issues include the inability to assess if the ET tube is in place and whether the baby developed pneumothorax during resuscitation.

As I explained above, experts recommend intubation whenever a baby requires chest compressions and medications during neonatal CPR. Intubation is a complicated procedure for many providers. The opening between the vocal cords of a newborn baby measures only 2-4 mm. The physician, nurse practitioner, or respiratory therapist has to visualize it properly and place an ET tube into that hole.

After doing that, we have to ensure that the ET tube is, in fact, in the trachea and not in the esophagus. If the latter situation were present, we would provide air and oxygen into the stomach instead of ventilating the lungs.

We have several methods of ensuring proper ET positioning:

Often, after successful intubation, the baby’s heart rate quickly improves. However, in severely compromised babies, that may not occur.
We listen to breath sounds on both sides of the chest and watch chest movements. This technique is the most reliable because it is not affected in cases where a baby’s heart does not beat. However, it requires some experience so the providers can be confident with their assessment.
Listening to the stomach to ensure that air movement over the belly is not louder than over the lung fields.
Using a carbon dioxide detector. When the baby’s heart rate is above zero, we are likely to see a change of color on the CO2 detector. This may not occur in very tiny babies with absent or very low blood perfusion (low or absent heart rate).
Chest X-ray allows us to visualize the exact location of the ET tube. However, this method is impractical during resuscitation due to time constraints.

Despite having several methods at their disposal to ensure ET tube position, I still see many cases in which providers intubated a baby, conducted full resuscitation via ET tube, and after a more experienced person arrived, they determined that the ET tube was in the wrong place.

NRP guidelines suggest that if a less experienced person conducts a resuscitation or there are problems with intubation, one should attempt to use a laryngeal mask airway. This device is easier to insert correctly and often is adequate to provide effective ventilation for a baby.

Another challenging situation for clinical assessment during resuscitation is the presence of pneumothorax. You can read my separate article on this topic.

Diagnosing pneumothorax is difficult under normal circumstances, but even more so right after birth while conducting CPR on a baby. Multiple factors can contribute to pneumothorax right after birth. Underlying lung disease is the main factor. However, various procedures such as intubation, malpositioned ET tube, high pressures while ventilating a baby, and chest compressions may contribute to it.

Since taking a chest X-ray during resuscitation is rarely an option, clinicians must rely on their clinical skills to diagnose pneumothorax. One should suspect pneumothorax in the following clinical situations:

A patient who started improving during resuscitation and then suddenly deteriorated
A patient we thought should have started improving is not responding to proper resuscitation measures.
Uneven breath sounds on both sides of the chest after confirming that the ET tube is not inserted too deep.
Poor breath sounds on one or both sides of the chest in cases where we are sure that the ET tube is in the trachea. (CO2 detector is showing color change)
Transillumination of the chest with light shows asymmetric light on one side, suggestive of air collection on that side.

I must admit here that diagnosing the presence of pneumothorax during resuscitation is exceptionally challenging. I believe the average pediatrician, NNP, or sometimes even a young neonatologist may not have adequate skills to perform on such a high level.

Lack of proper equipment and medications

The lack of proper equipment and medications in hospitals that care for newborn babies is inexcusable. Sometimes, these resources exist, but nobody can locate them on time due to a lack of training or inappropriate onboarding of new personnel.

In addition, bad planning also contributes to those problems. For example, there is a radiant warmer and resuscitation equipment in a nursery, but ER physicians do not have quick access to it if a baby is born in an emergency room.

Finally, some low-volume hospitals have only one piece of necessary equipment; if it breaks or malfunctions during resuscitation, they do not have any options to rectify it. I have heard about cases where providers had only one ET tube, chest tube, PPV bag, or ventilator, and when something went wrong, they were left with no alternative options. In my opinion, these kinds of situations are unacceptable.

Poor communication with parents and other medical providers

Proper communication is crucial for health workers. We need to communicate with other consultants, nurses, referral hospitals, and parents of our little patients.

In addition, when things go wrong, various providers may want to blame other parties but not themselves for bad outcomes. Significant disagreement between providers documented in the clinical charts is always a red flag that the process of resuscitating a baby was not smooth and most likely something went wrong and not according to guidelines or hospital policies.

Examples of communication errors that may lead to malpractice lawsuits after the resuscitation of a baby:

OB or ER department not notifying the nursery about impending delivery of the baby that may require resuscitation. As a result, the pediatrician or neonatologist arrives late or unprepared for the resuscitation.
Not consulting other specialists or higher level hospitals regarding complex cases that would likely get more appropriate care if transferred.
Giving confusing orders to nurses during a resuscitation
Providing inaccurate information to parents regarding what was done during resuscitation or problems encountered during CPR.
Hiding from parents a real cause of death.
The blame game between OB and pediatric departments.
Blaming parents, for example: “You came too late to the hospital,” “You did not take care of yourself during pregnancy.”

It is of utmost importance that timeliness, accuracy, honesty, and empathy are the guiding principles for the communication between medical providers and family members.

What did I learn from the case reviews I conducted?

After reviewing numerous charts of babies who have undergone resuscitation, I realized that most frequent errors during that critical time occur due to understaffing, lack of regular training, lack of skills, and lack of equipment.

If you work in a nursery or birth center, you can eliminate or minimize harm to neonates needing resuscitation by creating skill lists, introducing frequent mock codes in different hospital locations, and having daily checks of the equipment, medications, and crash cards.

Conducting internal quality reviews of every full or partial resuscitation in a non-threatening environment helps everybody learn and do better next time.

References:

1. Guidelines for Perinatal Care – 8th Edition. Published by AAP and ACOG, 2017

2. Neonatal Resuscitation Textbook – 8th Edition. Published by AAP and AHA, 2021