Earlier this year, a Massachusetts federal court awarded $3 million to a child who suffered permanent neurological injuries after a nurse practitioner failed to properly diagnose and manage severe jaundice in the days following birth. The child was born small for gestational age and had a family history of G6PD deficiency, a known risk factor for dangerous bilirubin buildup in newborns. Despite those red flags, bilirubin levels were allowed to rise to unsafe levels without adequate intervention. The court found the United States liable under the Federal Tort Claims Act, reflecting that the care was provided at a federally funded clinic whose providers are treated as federal employees for purposes of malpractice liability.
The case is a reminder that newborn jaundice, which affects roughly 60 percent of full-term babies and is usually harmless, can cause permanent brain damage when warning signs are present and providers fail to act on them.
What Jaundice is and When it Becomes Dangerous
Jaundice is the yellowing of a newborn’s skin and eyes caused by elevated bilirubin, a byproduct of the normal breakdown of red blood cells. In most newborns the liver clears bilirubin without difficulty within the first week of life and no treatment is needed. But in some infants, bilirubin levels climb faster than the liver can process them, reaching concentrations that are toxic to brain tissue.
When dangerously high bilirubin levels go untreated, the result is kernicterus, a form of brain damage that can cause cerebral palsy, hearing loss, vision problems, intellectual disabilities, and movement disorders. Kernicterus is almost entirely preventable. The medical community has had clear, evidence-based protocols for screening, monitoring, and treating neonatal hyperbilirubinemia for decades. When providers follow those protocols, kernicterus is rare. When they don’t, families are left with a child who will require lifelong care.
Known Risk Factors Providers Are Expected to Recognize
Not all newborns carry the same jaundice risk, and identifying elevated-risk infants is a core part of standard newborn care. Providers are expected to assess every newborn for risk factors before discharge and to adjust their monitoring and follow-up accordingly.
Risk factors that should trigger closer scrutiny include prematurity or being small for gestational age, a family history of G6PD deficiency or other blood disorders, significant bruising or trauma at birth such as a large cephalohematoma, poor feeding or dehydration, and an older sibling who required phototherapy for jaundice. When multiple risk factors are present, as they were in the Massachusetts case, the standard of care calls for heightened vigilance, earlier bilirubin testing, and a lower threshold for treatment.
G6PD deficiency deserves particular attention because it is a hereditary enzyme deficiency that causes red blood cells to break down more rapidly than normal, producing bilirubin faster than an already-stressed newborn liver can clear it. It is more common in families of African, Mediterranean, Middle Eastern, and Southeast Asian descent. A family history of G6PD deficiency is a well-recognized risk factor that providers are expected to document, flag, and act on.
What Providers Are Required to Do
The American Academy of Pediatrics has published clear guidelines on the management of hyperbilirubinemia in newborns. Those guidelines require providers to assess every newborn’s bilirubin risk before discharge, either through a predischarge bilirubin measurement or a clinical risk factor assessment, and to ensure that appropriate follow-up is in place within the timeframe dictated by the infant’s risk level.
Failure to obtain a predischarge bilirubin level in a high-risk infant, failure to arrange timely follow-up, failure to recognize that a baby’s yellowish color represents clinically significant jaundice rather than normal physiological variation, and failure to initiate phototherapy or escalate to exchange transfusion when bilirubin levels reach dangerous thresholds are all recognized departures from the standard of care that can form the basis of a malpractice claim.
Two Different Legal Paths Depending on Where Care Was Provided
Most birth injury malpractice claims in Massachusetts are filed as standard medical malpractice actions in Superior Court. Those cases proceed under familiar rules: a 182-day notice letter must be sent to the provider before suit is filed, the case goes before a medical malpractice tribunal early in the litigation, and the statute of limitations is three years from the date of the negligent act, with a special rule for minors that tolls the limitations period until the child turns 18, subject to the seven-year statute of repose discussed in an earlier post about the SJC’s Bellmar decision.
The Massachusetts case decided earlier this year followed a different path because the care was provided at a federally funded community health center. These facilities, known as Federally Qualified Health Centers (FQHCs), receive federal funding and in exchange their providers are deemed federal employees for malpractice purposes. That means the only avenue for a malpractice claim is the Federal Tort Claims Act, which has its own distinct requirements that differ significantly from a standard state court malpractice action.
Under the FTCA, a claimant must first file an administrative claim with the relevant federal agency, typically the U.S. Department of Health and Human Services, before any lawsuit can be filed. The agency has six months to respond. If it denies the claim or fails to act within six months, the claimant may then file suit in federal district court. Critically, the administrative claim must be filed within two years of the date the claimant knew or should have known of the injury. Missing that two-year window extinguishes the claim entirely, with very limited exceptions. There is no jury in an FTCA case. The case is decided by a federal judge alone in a bench trial.
Many Massachusetts families who receive care at community health centers, neighborhood health centers, or other federally funded clinics do not know that their providers have this special status, and they may not realize until it is too late that the standard malpractice procedures do not apply to their situation. If your child was born at or received newborn care from a community health center and you have concerns about how jaundice was managed, it is critical to determine as early as possible whether the FTCA applies, because the two-year administrative claim deadline is shorter than the standard Massachusetts malpractice limitations period and there is no tolling for minors under federal law.
What Families Should Watch For
The early signs of dangerously elevated bilirubin are not always obvious, and new parents are not expected to know the clinical thresholds. What families can watch for in the days after discharge includes yellowing that spreads from the face to the chest, abdomen, and limbs, a baby who is unusually difficult to wake for feedings or unusually lethargic, a high-pitched cry that is different from normal infant crying, poor feeding or significant weight loss, and eyes that appear to roll upward. Any of these signs in a newborn warrant an immediate call to the provider and, if the response is dismissive, an emergency room visit.
If your newborn was discharged from a hospital or clinic and later diagnosed with kernicterus or bilirubin-induced neurological injury, and you believe the warning signs were present and missed or ignored, contact Weigand Law at 508-775-3118 or email [email protected] for a free consultation. These cases are time-sensitive, and the applicable deadlines depend on where your child received care.
Attorney Blair E. Weigand — Helping those with legal questions for 35 years and counting.