 This post is the second in a series of articles that explain what Texas law requires you to prove in different types of birth injury cases, who can actually be sued, and how much time you have to act. Additionally, this particular post explains what hypoxic-ischemic encephalopathy is, what evidence points toward an intrapartum cause, and what separates a genuinely unavoidable injury from a preventable one.
A baby is diagnosed with hypoxic-ischemic encephalopathy, and a family is left trying to understand what that means and whether it could have been prevented. It is a fair question, and an honest answer requires more nuance than either “this always means malpractice” or “this is always just bad luck.” In fact, the medical profession's own guidance has moved specifically toward a more careful, multi-factor approach to this question and away from assuming every case traces back to something that happened during labor. What Is Hypoxic-Ischemic Encephalopathy, and What Causes It? Hypoxic-ischemic encephalopathy, commonly called HIE, is a type of brain injury caused by inadequate oxygen or blood flow to a baby's brain around the time of birth. It is a subset of a broader category called neonatal encephalopathy, and the distinction between the two matters more than families are usually told. Neonatal encephalopathy describes a newborn showing disturbed neurological function such as an abnormal level of consciousness, difficulty breathing, abnormal muscle tone, or seizures. HIE is the specific diagnosis given when that encephalopathy is attributed to an intrapartum hypoxic-ischemic event. The distinction matters because not every case of neonatal encephalopathy has an intrapartum cause. Brain injury can also originate earlier in the pregnancy from a genetic condition, an infection, a placental problem that developed over days or weeks, or a combination of factors that predate labor entirely. A diagnosis of encephalopathy at birth is the starting point for an investigation, not the answer to it. Does an HIE Diagnosis Mean the Delivery Team Did Something Wrong? Not automatically. The American College of Obstetricians and Gynecologists (“ACOG”) and the American Academy of Pediatrics (“AAP”) have specifically moved away from treating every case of neonatal encephalopathy as proof of an intrapartum hypoxic event, in favor of what they call a comprehensive, multidimensional assessment. ACOG's first task force report on this subject, published in 2003, laid out a rigid set of “essential criteria” for linking neonatal encephalopathy to an intrapartum hypoxic event. The second edition, Neonatal Encephalopathy and Neurologic Outcome, published jointly with the AAP in 2014, explicitly backed away from that rigidity, recognizing that multiple potential causal pathways can lead to encephalopathy in term infants and that the signs and symptoms range from mild to severe depending on the nature and timing of the injury. It is worth being candid that this shift has not been universally welcomed. Some Plaintiffs' attorneys and patient advocates have criticized the 2014 revision as giving hospitals and insurers more room to contest causation than the epidemiological evidence actually supports. Whichever view is correct in a given case, the practical result is the same: an HIE diagnosis opens a causation inquiry, it does not close one. What Evidence Suggests an Intrapartum Cause for HIE? The ACOG/AAP task force named specific findings that, together, point toward an intrapartum timing, even though the task force stopped short of calling any single one of them conclusive proof on its own. Those findings include
A fetal distress pattern that appears suddenly during labor, after a previously reassuring tracing, is one of the more significant pieces of evidence reviewed in these cases, precisely because it suggests the injury's timing rather than just its existence. Was Therapeutic Hypothermia Started in Time? Why the 6-Hour Window Matters. Separate from what caused the original injury, a distinct standard-of-care question exists after an HIE diagnosis is suspected: whether the baby was offered therapeutic hypothermia, and whether it started soon enough to do any good. This is often the most time-sensitive, and most litigated, part of an HIE case. Therapeutic hypothermia, sometimes called cooling therapy, has been the standard of care since 2010 for babies born at 36 weeks' gestation or later with moderate-to-severe HIE, and it remains the only treatment shown to improve long-term outcomes. A 2026 clinical report from the American Academy of Pediatrics confirms that cooling to a temperature of 33.5 to 34.5 degrees Celsius, initiated within 6 hours of birth and continued for 72 hours, reduces the risk of death or moderate-to-severe neurodevelopmental impairment. That 6-hour window is not a soft guideline. Every major cooling trial supporting this therapy excluded babies who started treatment later, and the AAP report notes that the benefit for babies who present between 6 and 24 hours of age is genuinely uncertain, requiring a documented discussion with the family about the tradeoffs. Any hospital or birthing center should have a plan in place to recognize a baby who may qualify and either begin cooling or arrange prompt transfer to a facility that can. A delay in recognizing the need for cooling, or a delay in transferring a baby to a facility equipped to provide it, can be a separate and independent failure from whatever caused the underlying injury. What Should a Family Do If Their Baby Was Diagnosed With HIE? First, request the complete labor, delivery, and NICU record as early as possible. Ask specifically for the fetal heart rate monitoring strips from the entire labor, the delivery note, Apgar scores, umbilical cord blood gas results, the timing of the newborn's first neurological examination, and, if applicable, the exact time therapeutic hypothermia was initiated relative to the time of birth. Because causation in HIE cases depends on a detailed timeline, the specific records and their timestamps matter enormously, more than they do in many other types of malpractice claims. Texas Health & Safety Code §241.154 requires a hospital to provide these records to the patient within 15 days of a written request. Texas Civil Practice and Remedies Code §74.351 requires a Claimant asserting a health care liability claim to serve a preliminary expert report on each Defendant within 120 days of the date on which that Defendant filed their Answer to a lawsuit. This preliminary expert report is required to explain the standard of care, how it was breached, and how the breach caused the injury based on the information then available. In an HIE case, that report typically depends on a maternal-fetal medicine or neonatology expert reconstructing this exact timeline from the records. Texas's statute of limitations for these claims generally requires action within two years, with a specific, more complicated rule for young children, so it is worth having the records reviewed sooner rather than later rather than waiting to see how your child's development unfolds. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard birth injury care we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions Is HIE always caused by something that happened during delivery? No. Hypoxic-ischemic encephalopathy is diagnosed when brain injury is attributed to an intrapartum hypoxic event specifically, but the broader category of neonatal encephalopathy can also result from causes that predate labor, including genetic conditions, infections, and chronic placental problems. A full record review is usually necessary to determine timing. What is therapeutic hypothermia and why does the timing matter? Therapeutic hypothermia, or cooling therapy, is the only treatment shown to improve long-term outcomes for moderate-to-severe HIE, and it must generally begin within 6 hours of birth to be effective. A delay in recognizing that a baby qualifies, or a delay in transferring the baby to a facility that offers cooling, can be a separate issue from whatever caused the original injury. How do I know if my baby's HIE diagnosis involves malpractice? You generally cannot know from the diagnosis alone. Determining whether an HIE case involves malpractice typically requires a qualified medical expert reviewing the fetal heart rate strips, delivery timeline, and treatment records against the accepted standard of care. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://publications.aap.org/pediatrics/article/157/2/e2025073627/206158/Therapeutic-Hypothermia-for-Neonatal-Hypoxic Comments are closed.
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