In the event that an injury could have been avoided, families and children may have the opportunity to pursue financial compensation in a medical malpractice lawsuit.
Defining Birth Injury Malpractice
Some birth injuries are truly unavoidable. In certain circumstances, there may be nothing anyone on a medical team can do to prevent harm to a newborn. But other cases are murkier, and some are the result of outright negligence.
Examples of medical negligence during the birth process are as numerous as the children affected by these mistakes. Here are some all-too-common examples:
- failure to refer "high-risk" pregnancies to the appropriate specialists
- failure to adequately communicate emerging concerns with the appropriate medical professionals
- failure to conduct necessary prenatal tests
- failure to properly diagnose serious pregnancy conditions, like placental abruption, placenta previa, preeclampsia, premature rupture of the membranes or umbilical cord entrapment
- failure to use the drug Pitocin, which induces labor, under the appropriate circumstances
Obstetricians, gynecologists, neonatologists, nurses and midwives can make mistakes, falling short of their duty to "do no harm." Some doctors lack the specialized training necessary to safely deliver a child, or guide a mother carefully through her pregnancy. Others have failed to stay up-to-date with the newest developments in obstetrics, while some are simply incompetent, inattentive or incommunicative.
What Is Medical Negligence?
While there isn't a formula for negligence, this crucial legal concept is based in a simple truth, which is particularly relevant to medical situations. Doctors owe their patients, both mothers and children, a duty of care.
We trust in medical professionals to uphold the standards of their profession. After all, maintaining these standards are often a matter of life and death. Negligence is the dark side of this duty - when a healthcare professional violates the standard of care, injuring a patient in the process.
The Elements Of A Birth Injury Malpractice Case
To build a viable birth injury malpractice lawsuit, every family will have to prove three things:
- the defendant, usually a healthcare professional, was responsible for a mother and child's medical care when the birth injury occurred
- the health care professional was negligent in performing their duties, falling below the standard of care
- a baby or mother was harmed unnecessarily as a result of the health care professional's negligence
In a courtroom, proving medical malpractice is a matter of defining the standard of care that should have held in a child's delivery, and identifying how a medical professional violated that standard.
Standard Of Care
How do we judge the performance of a doctor, midwife or nurse?
Reputable birth injury attorneys will turn to the expertise of independent medical professionals, well-regarded obstetricians and nurses with an eye to current trends and best practices in their respective industries. Putting the facts of a mother's pregnancy, labor and delivery under a microscope, these experts will search for instances of malpractice - all with their profession's standard of care in mind.
But the standard of care isn't always the same, and defining an appropriate standard can be one of the most hotly-contested issues in a medical malpractice lawsuit. Gastroenterologists aren't obstetricians, and we can expect that doctors in different fields of practice have mastered different bodies of medical knowledge. In any event, we wouldn't hold them both to the same standard of care.
In some jurisdictions, noting these general differences between standards of care isn't enough. Some courts require that juries make a distinction based on geographic and local resources. While a doctor working in a state-of-the-art facility with extensive funding may be held to one standard, a doctor working in a rural hospital could be held to a different standard. More and more states are moving away from this requirement, since the training of doctors has become fairly uniform throughout the United States.
The basic idea, though, is always the same: healthcare providers are required to use the same degree of skill and care that a reasonably competent healthcare provider would have used under similar circumstances.
Working With Medical Experts
Birth trauma attorneys work with respected medical professionals throughout the course of a lawsuit. We've already seen how these experts can help to build up the legal argument supporting a case, by defining an appropriate standard of care that should have been followed. But there's an added benefit to working with these trusted doctors and nurses, one that touches the lives of children with special needs even more directly.
Building A Life Care Plan
A child's injuries go far beyond their specific condition or disability. How do we ensure that a child develops to their full potential? In preparing a birth injury case, attorneys will have to figure out exactly how a birth trauma or injury, along with its treatment, will affect a family in the long-term. In short, how do we know what level of compensation will be appropriate, and how can we explain to a judge and jury what that compensation will cover?
Most birth injury attorneys rely on life care planners to answer these crucial questions. Working in tandem with a child's physicians and therapists, along with the attorney's team of expert witnesses, a life care planner will develop a comprehensive guide on what the child will need throughout their life.
While this is part of the litigation process, creating a thorough life care plan isn't just valuable in a court of law. In a very real sense, life care plans empower parents and children, allowing them to understand the challenges they will face, as well as the solutions on offer to ensure bright, happy lives.
How A Birth Injury Malpractice Lawsuit Can Help
Raising a child with disabilities isn't easy. Beyond daily struggles, the specter of financial health - long-term security - hangs over many families as they attempt to build for their children a life well worth living.
Filing a birth injury lawsuit presents families with a possible solution. If a child's disability was caused by the negligence of a healthcare professional, families can recover significant compensation, money to cover:
- past and future medical expenses
- the costs of healthcare, from rehabilitation and therapy to emotional counseling and assistive technologies
- wages that you were unable to earn because you were caring for your child
- pain, suffering and emotional trauma
In some particularly appalling cases of malpractice, the offending healthcare professionals can even be ordered to pay punitive damages. This form of compensation, which goes to families and children, isn't meant to make them whole after an injury, but to punish doctors who have been particularly reckless with a newborn's life. Likewise, when a doctor's actions led to the wrongful death of a child, parents may be eligible to pursue compensation.
To learn more about filing a wrongful death lawsuit in memory of an infant, click here.
Who Can Be Held Accountable For A Birth Injury?
In most cases, the physician, midwife or nurse who made a mistake during delivery will become a birth injury lawsuit's primary defendant. But hospitals can also be held accountable, if they allowed a healthcare professional with a history of negligence to continue delivering babies in their facility.
While most birth injuries occur during labor or delivery, malpractice can also lie further in the past. Prenatal care is crucial, for the health of both mother and child. Failures to properly diagnose a maternal health condition can be malpractice, when they put the life of a child at risk. Prescribing an inappropriate drug to a mother can also be considered medical negligence if the child suffers a birth injury as a result, or develops a birth defect due to the chemical.
While we often fail to acknowledge this fact, childbirth presents a host of dangers. Parents, even mothers, are often the last to know that their baby's heart rate dropped abruptly during the delivery, a child's brachial plexus nerves were injured during delivery or that an emergency C-section was considered - but deemed necessary.
What About Birth Defects?
That's an important distinction to make. After a child's delivery, it can be hard to determine whether a condition or impairment was caused by negligence, and should be considered a birth injury, or whether it was caused by preexisting genetic abnormalities.
To complicate matters, some conditions can be caused either by uncontrollable genetic factors or a healthcare professional's negligent conduct. Cerebral palsy disorders, for example, are often the result of genetic abnormalities, factors over which doctors have no control. But some cases are actually caused by birth asphyxia, in which a baby's brain is deprived of oxygen during delivery - potentially creating the grounds for a viable cerebral palsy lawsuit.
While many birth defects are entirely unavoidable, some can actually be attributed to medical malpractice. Birth defects aren't just caused by genetics; environmental factors, including pharmaceutical drugs, can also play a role. Doctors who negligently prescribe dangerous drugs to pregnant women can be held accountable for doing so. In some cases, the drug's manufacturer can also be added to the lawsuit.
Is Filing A Birth Injury Lawsuit Worth It?
Filing a medical malpractice lawsuit can be a daunting proposition, especially when your time is best served caring for your child. Managing all of your responsibilities can already seem impossible, without a protracted litigation thrown on top.
We understand that you have better things to do with your time. That's why our birth injury lawyers strive to make the legal process as simple and stress-free as possible.
At the same time, we've committed ourselves to open communication, so our clients know exactly where they stand at any point in the case. We think you're entitled to that, although many doctors don't seem to feel the same way. You should never be left in the dark. With our birth injury malpractice attorneys, you won't be.
How Long Does My Family Have?
There are strict deadlines in filing any sort of personal injury lawsuit, but the laws governing birth injury cases can be particularly complex. We suggest speaking with an experienced medical malpractice attorney immediately to ensure that your family doesn't lose out on the chance to file.
Statutes Of Limitation
Every state has its own "statute of limitations," a legal deadline that limits the amount of time injured people have to file a lawsuit.
While the statute of limitations will differ from state to state, most give injured patients between two and three years after the negligent act to file a medical malpractice lawsuit. Other laws, called discovery rules, may be able to extend the deadline, if it would have been impossible to discover the nature of a child's injury immediately.
The nature of birth injuries complicates this picture somewhat, since most birth injury lawsuits actually contain two claims, which may be governed by separate statutes of limitation.
One of these claims, made on behalf of parents, involves the cost of their child's medical treatments and care from birth to the age of 18, along with their own pain and suffering. The other claim, made on behalf of the child, is intended to cover medical care and living expenses that will be incurred after he or she turns 18. Some states allow a much longer time-frame for the filing of this second claim, although other states limit it to several years.
How Much Will Hiring A Medical Malpractice Attorney Cost?
At CaringForSpecialNeedsKids.com, our birth injury lawyers work on a contingency-fee basis. We won't charge you any fees until we've successfully resolved your case. Whether that means a jury verdict or settlement, the financial risk is our own until you see results.
In short, we aren't compensated until your family is.
Learning more about your legal options and rights comes free of charge, too. To learn more, just give us a call or complete our contact form.