The birth of a new baby is one of the most memorable times in any parent's life. While modern medicine has greatly reduced the risk of complications during labor and childbirth, birth injuries may still occur due to medical malpractice. When this happens, parents can take legal action to protect their right to compensation on behalf of their child.
Types of Birth Injuries
The term birth injury is used to refer to a physical or cognitive impairment that occurs as the result of a complication during a child's gestation or birth. A birth injury may be immediately visible or may go undetected until the child fails to meet developmental milestones such as rolling over, crawling, walking, and talking.
Some examples of birth injuries that may be the basis of a malpractice suit include:
- Bone fractures: Fractures to the clavicle, legs, or arms are often the result of a difficult birth, but can sometimes occur when the child is accidentally dropped by a care provider.
- Brachial plexus palsy: Brachial plexus palsy can result in weakness and the inability to use certain muscles in the arm, hand, or shoulder. Erb’s palsy is a form of brachial plexus palsy affecting the shoulder and elbow muscles. Klumpke’s palsy is a form of brachial plexus palsy resulting in damage to the lower nerves in the arm and affecting the ability to move the arm, wrists, and fingers.
- Cerebral palsy: A brain-related birth injury affecting how the brain sends communication to the muscle groups, cerebral palsy can result in the need for lifelong medical attention.
- Hypoxic-Ischemic Encephalopathy (HIE): A brain-related birth injury caused by oxygen deprivation, HIE is sometimes called intrapartum asphyxia.
- Meconium Aspiration Syndrome: Occurring during long and difficult deliveries, this injury happens when the baby defecates in the uterus and breathes in the meconium. It can create severe breathing problems after birth.
- Periventricular Leukomalacia (PVL): Most common in the delivery of babies under 32 weeks, PVL is a type of white matter brain injury that can result in developmental delays, visual disturbances, cognitive impairment, cerebral palsy, and epilepsy.
- Persistent Pulmonary Hypertension of the Newborn (PPHN): An injury that happens when the pulmonary article responsible for delivering oxygen to a baby shuts down. PPHN can cause the child to have trouble breathing or to experience rapid heartbeats, cyanosis, or heart murmurs.
- Shoulder Dystocia: A rare injury that occurs when the baby's head and shoulders are trapped behind the mother’s pelvic bone during delivery, shoulder dystocia leads to a risk of hemorrhaging and uterine rupture for the mother as well as a collarbone fracture, breathing difficulties, or cerebral palsy for the child.
Common Causes of Birth Injuries
While some birth injuries are unavoidable, birth injuries can often be attributed to one of the following mistakes made during the process of providing prenatal care or during labor and delivery:
- Prescribing medications that are unsafe for use during pregnancy
- Failing to recognize or treat a complication during pregnancy
- Failing to order correct diagnostic tests to detect a problem with the health of the mother or baby
- Failing to react to complications during labor, such as a prolapsed umbilical cord
- Incorrect use of forceps, vacuum extractors, and other medical tools during delivery
- Mistakes made during a Caesarian section (C-section) delivery
To prove a malpractice case relating to birth injuries, you must be able to establish four key elements.
- Duty: The provider had a professional duty to care for the pregnant mother and her baby.
- Breach of duty: The provider did not follow the appropriate standard of care for the pregnant mother and her baby.
- Damages: The breach of duty resulted in compensable medical expenses or other damages for mother and baby.
- Causation: The provider's actions caused the damages in question.
Expert testimony is crucial to the success of any birth injury claim, since birth injuries must be clearly distinguished from unpreventable birth defects. For example, cerebral palsy can be caused by a lack of oxygen during birth or by genetic factors that affected brain development. A care provider is only guilty of malpractice if the child's injury could have been prevented.
Types of Available Compensation
Some birth injuries will fully heal over time, while others result in the need for lifelong medical care. Compensation is based on the harm the child has suffered—so catastrophic birth injuries result in the highest settlements.
A malpractice suit relating to a birth injury can include compensation for medical expenses, lost wages, and pain and suffering. Some of the various expenses that might be associated with a birth injury include:
- Wheelchairs, braces, or other assistive devices
- Physical therapy
- Occupational therapy
- Speech therapy
- Accessibility modifications to the home
- Accessibility modifications to the vehicle used to transport the child
- Home health aides
- Prescription medications
- Lost income from the parent who must manage the child's care
- Cost of tutoring or private school for a child's learning disability
- Child's lost future earning potential
Just as medical experts are used to establish the cause of a child's injuries, life care planning experts can be called upon to offer insight into what types of care a child may need in the future as the result of his or her birth injury. Life care planning experts can offer insight into future medical needs, the anticipated replacement cost of necessary durable medical equipment, educational goals, vocational options, the likelihood of the child needing a future residential care placement, and how aging will affect the level of care the child requires.
Protecting Your Legal Rights
The vast majority of birth injury cases are settled out of court. However, an attorney can help line up the evidence you need to protect your right to compensation and negotiate with the insurance company on your behalf.
To learn more about your options for pursuing a malpractice claim related to a child's birth injury, please contact Case Barnett Law to schedule a free, no-obligation consultation.