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Birth injuries refer to conditions that babies experience before, during, and after birth. In 2014, 31.1 out of every 1,000 hospital births involved birth injuries. While some birth injuries are unavoidable tragedies, many happen because of medical malpractice or medical malpractice.
Types of Birth Injuries
Labor and delivery have a significant impact on mother and child. But birth injuries go beyond the typical effects. They are often life changing and affect child development.
Birth injuries occur when doctors, nurses and other health care professionals fail to:
- Anticipate birth complications, e.g. B. twisted umbilical cords
- Treat maternal infections and health problems during pregnancy, such as B. meningitis or gestational diabetes
- Address fetal distress during labor, including hypoxia and abnormal heart rate
- Respond appropriately to maternal or fetal bleeding
- Properly use medical devices such as vacuum extractors or forceps
- Order a cesarean section (C-section) if medically necessary
- Proper care for the mother or child after birth
- Provide certain medical care in a timely manner
When these impairments occur, babies can experience injuries ranging from bruising to disabling conditions, including:
- Brachial Plexus Injury:The brachial plexus includes five nerves that run from the neck to the chest and armpit. They control shoulders, arms and hands. During childbirth, the nerves in the brachial plexus can stretch, pull, or tear, causing weakness and immobility.SchulterdystokieIt is the most common injury to the brachial plexus.
- Paralisia Cerebral (PC):A baby can develop cerebral palsy if the medical team does not properly treat the umbilical cord, placenta, or uterine rupture. CP primarily involves reduced motor function and lifelong disability.
- Hypoxic-Ischemic Encephalopathy (HIE):HIE usually refers to brain dysfunction due to lack of blood flow or oxygen. It can lead to developmental delays, cerebral palsy, epilepsy and other cognitive impairments.
- Next chapter:Caput succedaneum is a swelling of the scalp due to accumulation of fluid that gives babies a "cone head" appearance. Many cases resolve on their own, but babies can develop alopecia, infection, or jaundice if the condition is left untreated.
- Hyposphagma:Subconjunctival hemorrhage occurs when the blood vessels under the baby's eyes rupture during a long or strenuous labor. Babies develop red spots that usually disappear within a few weeks. If the spots don't go away or become infected, babies may experience blindness, seizures, or lethargy.
- Spinal Cord Injuries:Spinal injuries are uncommon in newborns, but when they do occur, they usually occur in the neck. These injuries cause reduced sensation and immobility, and sometimes seizures and weakness.
- Cephalohematoma:Difficult deliveries with forceps or a vacuum extractor put excessive pressure on the baby's skull, causing blood vessels to rupture and blood to pool between the skull and the skin. Babies can bounce back, but they are also at risk for seizures, head swelling, and pain.
- broken bones:Fractures usually indicate severe physical trauma. Clavicle (clavicle) is the most common fracture in newborns and often accompanies shoulder dystocia or breech births. More traumatic births can result in broken arms and legs.
Each of these injuries or conditions is a call for investigation. Finding a medical malpractice attorney and educating yourself about birth injury lawsuits is imperative.
What is a personal injury lawsuit?
A birth injury lawsuit is a lawsuit that allows parents to seek monetary compensation after their child sustains injuries. The cause of action in the action stems from two theories: medical error and medical malpractice.
Medical malpractice occurs when doctors, nurses and other healthcare professionals fail to meet expected standards of medical care, resulting in injury or death. In medicine, the standard of care is high. Health professionals should exercise an expected level of caution, consideration and good judgment that an appropriately qualified and competent provider would exercise in a similar situation.
Medical errors are at a lower level than medical errors. A medical error is an error that an experienced and competent professional could make in this situation, but which results in unnecessary consequences or harm. In principle, no liability is accepted for errors that are not due to negligence. However, there is a fine line to draw, so it is important to consult a lawyer.
Experts may disagree about the appropriate standard of care in the circumstances. Therefore, the difference between misconduct and error is often subtle. Most birth injury lawsuits rely on both theories to ensure all causes are covered so families can receive compensation.
Types of Birth Injury Lawsuits
Causes of action for birth injuries are medical malpractice or wrongful death, as the case may be.
Doctors and other medical professionals commit medical malpractice when they fail to protect a pregnant woman and her baby during labor and delivery. As discussed above, healthcare professionals are required to exercise a higher standard of care than is normally required in cases of general negligence.
Medical malpractice includes negligence and error. Actionable errors in the delivery room can be:
- Not ordering an emergency cesarean section
- Overlooking fetal distress, including low heart rate
- Improper force during delivery
- Improper use of vacuum cleaners or tweezers
- Failure to treat childhood jaundice or other medical conditions
- No treatment for maternal infections such as meningitis
To make a medical malpractice claim, the plaintiff must establish a connection between the physician's negligence and the injury or death. Medical liability attorneys determine this by hiring specialists to review medical records and explain how the medical staff failed in their duty to care for the patient.
Unfortunately, some treatment errors lead to the death of the child or mother. A wrongful death lawsuit applies when a child is stillborn or dies after birth due to an avoidable error by a healthcare professional.
Wrongful death takes a similar approach to medical malpractice. To prevail, plaintiffs must prove that the physician's error resulted in the death of a child or a pregnant person. As with medical malpractice, a lawyer will usually hire an expert witness to testify to what went wrong during prenatal care or childbirth.
Birth injury cases are as unique as the people involved. Here are some examples of actual birth injury lawsuits:
In a neonatal intensive care unit (NICU), a nurse placed her gloved hand in hot water on a premature twin. The glove cracked and burned the skin on the child's inner thigh and toes. Because premature babies have very thin skin, these injuries were serious.
The child had to amputate three fingers, including the thumb. This amputation caused lifelong mobility problems.
After IVF, a woman conceived a high-risk pregnancy. Her doctor instructed the staff to monitor her on a fetal heart monitor when she went to the hospital in labor.
Neonatal nurses allowed the woman to remove the monitor after 45 minutes, despite worrisome results. When the nurses reconnected the monitor, there was no heartbeat. Doctors performed an emergency caesarean section, but the child died.
A woman previously diagnosed with gestational diabetes presented to the hospital with nausea and vomiting. The doctors who treated her did not check her blood sugar or administer insulin. Her main obstetrician, despite several calls, delayed her arrival at the hospital.
The nurses also failed to notice distressing heartbeats, and the mother remained distressed. Her obstetrician finally arrived and decided to transfer the patient to a top-notch facility. This hospital took three hours to drive.
The obstetrician never administered insulin or checked the patient's blood glucose levels during transport. The woman arrived at the facility with a blood sugar level of over 800 and the child died.
The statute of limitations limits the window of time during which parents can file a birth injury claim. The countdown starts when the breach occurs or is discovered, whichever is later.
Typically, the statute of limitations in most states is two to three years. However, this applies if the parents complain. If the children want to claim compensation, the limitation period starts when the child turns 18. After that date, the child has another two to three years to file a lawsuit, but can only claim lost earnings and medical expenses that he or she will incur as an adult.
There may be other subtle differences depending on state law. For example, Nevada is extending its statute of limitationsten yearswhether the birth injury involves brain damage.
Virginia gives from father to sontenth anniversaryfile a claim for harm to the child (in the case of harm to the mother, the two-year period applies).
Steps in a birth injury case
Here is an overview of what happens in a birth injury case. States may have different procedures, but in general, most processes start with these steps.
Step 1: Hire a lawyer
It is difficult, if not impossible, to handle a birth injury medical malpractice case without an attorney. These matters are often complex and require access to experts and time to negotiate. An attorney has the professional skills and experience to handle a personal injury judgment.
Most attorneys start a birth injury case with a free consultation and case review. They review the potential client's case for a valid medical malpractice claim. If they accept the case, the client signs a fee agreement (usually aContingency fee contract) and the law firm starts preparing the case.
Step 2: Investigate and Find Evidence
Once hired, attorneys will:
- Request medical records of pregnancy and prenatal care
- Request notes and hospital records since delivery
- Request medical records of the treatment the baby received
- gather testimonials
This evidence helps determine whether physicians missed diagnoses or made mistakes. Lawyers will review medical records directly or hire medical specialists to review them.
Step 3: Settlement negotiations
Most medical malpractice claims, including birth injuries, are settled out of court. Many doctors and hospitals want to avoid negative headlines and are therefore often willing to compromise.
An attorney can send a claims package to the doctor's or hospital's medical malpractice carrier before filing a lawsuit. The claims package includes a statement describing the events leading up to the birth injury and how it is affecting the baby and parents. A lawyer then attaches records and other documents to support the claim. The claim then ends with a dollar amount that settles the matter.
An abusive carrier may ignore the package or make a counter-offer. This dialogue goes back and forth until the parties reach an agreement on the value of the settlement. If an agreement cannot be reached, the attorney will likely file a lawsuit.
Step 4: File a lawsuit
Lawyers file medical malpractice suits when they are unable to negotiate a fair settlement or when the statute of limitations is looming. You file the claim in the court of competent jurisdiction in the county where the birth injury occurred. Parents become plaintiffs and doctors, hospitals and other medical providers become defendants.
The court assigns a number and timeline of cases to the complaint. Many states require mediation and arbitration before a matter can go to court. Agreement negotiations are ongoing.
Step 5: Discovery
Lawyers can find more information to support the Discovery Birth Injury case. Discovery is a step where the parties exchange information. It includes taking statements or depositions from the parties to the case.
For example, attorneys for defendants may want to depose the parents and family members of the injured child. Likewise, the plaintiff's attorney will depose the physicians and other medical professionals involved in the case. All statements are made under oath and count as testimony.
Step 6: Try it
Medical malpractice cases rarely go to court, and this is particularly true of birth injuries. These cases inspire sympathy from the jury and often lead to high verdicts against doctors and hospitals. Therefore, a clarification of the matter is preferable to a lawsuit.
Furthermore, court proceedings are often risky, stressful, and painful for plaintiffs. No one wants to relive the day their baby died or became disabled. In addition, there is always the risk that the judge or jury will not award damages.
When the matter goes to court, a judge and jury hear arguments and testimony from both sides. They use this evidence to make a judgment.
Compensation in cases of birth defects
Indeed, a birth injury claim is often a difficult process. However, these lawsuits are often the best way to seek damages and compensation for a child's birth injuries.
Why claim damages?
If you get a settlement or verdict on birth injury, it will likely cover current and future medical costs arising from the birth injury.
Many birth injuries, such as cerebral palsy, have lifelong effects. The child often needs additional medical and financial support to live a full life. Some children experience lifelong physical and mental delays and require full-time care.
A birth injury judgment or settlement can help fund:
- mobility aids
- adaptable equipment
- Home nurses or other special care
- occupational therapy and physiotherapy
- special education
- speech therapy
- The operation
- specialized treatment
- Other future medical supplies
Parents may also need financial support to care for children with special needs. Compensation can help parents who:
- Have to give up full-time jobs to take care of your child
- Renovate existing homes or move to more affordable homes
- Modify vehicles to transport wheelchairs and other mobility aids
There is also an element of fairness when parents receive compensation. Blaming people for your mistakes is comforting. Some parents can have peace of mind knowing that there is a liability and they don't have to pay the medical costs associated with the malpractice.
types of damage
There are two common types of damages in civil cases: economic and non-economic. In more serious cases, a jury or judge may also award punitive damages.
Economic damage is documented and easy to prove. They include:
- medical bills
- loss of parents' salary
- Care costs, including home medical equipment
- special education
- Future medical expenses
- rehabilitation and therapy costs
- Conversion costs for home and car
- equipment costs
- Future earning capacity lost if child is never able to work
- Lost future earning capacity for parents who leave work to care for a child with special needs
Non-economic damages are subjective and more difficult to prove. They focus more on the emotional and mental cost of the birth injury ordeal. Examples of non-economic damages are:
- Physical pain and suffering suffered by the child
- Mental torment from living with a mental or physical disability
- Reduced quality of life
- Psychological stress and parental trauma
Finally, some cases justify punitive damages. As the name suggests, punitive damages are intended to punish the accused for extreme negligence or disrespect. These awards are less common, but many attorneys argue for punitive damages in birth injury cases, particularly wrongful death cases.
Factors that affect compensation
Birth injury cases are unique and cover a variety of compensation claims. Generally, the most serious birth injuries attract the most important court settlements and decisions.
There is probably no "magic number" when it comes to compensation. But a few factors help determine:
- The lifetime cost of child care
- Loss of income from caring
- medical expenses incurred
- The severity of birth injury impacts
Baby manslaughter cases often bring significant rewards due to the parents' psychological distress. The average compensation for a birth injury ranges from $420,500 to $510,000. Cases of cerebral palsy and other permanently disabling conditions can number in the millions.
26 statesplace coversfor damages caused by medical malpractice, including cases of birth injuries. These limits apply to pain and suffering, not actual demonstrable harm. Some states call them non-economic damage ceilings.
For example, Maryland, aupper limit of non-economic damageof $860,000 in 2022. If a jury awards $1.5 million in non-economic damages to a personal injury case, the defendant may seek a reduction of that award to $860,000. The judge would likely grant that request, thus applying the damage limit.
Birth Damage Compensation Fund
Birth Compensation Funds are government-sponsored programs that help people affected by birth injuries. States have enacted them to control carriers' burden of negligence when making claims. Many programs, including the one in Florida, are discussing this."crisis of malpractice.“
This idea arose from a rather dire situation - the lack of midwives. In fact, obstetricians face the highest number of medical malpractice claims. They are currently forming24% of complaintsand generate the most significant payouts.
The funds collect a portion of malpractice insurance premiums or require hospitals and physicians to pay into the fund. These proceeds go towards a resource available to those affected by birth injuries. The idea is to reduce malpractice insurance benefits and obstetrician premiums.
However, it is debatable whether these remedies are sufficient or effective. The Maryland legislature made several attempts to pass a fund, but to no avail. Critics claimed that the funds were insufficient to cover lifelong care and that they unfairly limited recovery.
Currently, three states have enacted these compensation programs. These include Florida, New York and Virginia.
That oneFlorida Birth-Related Neurological Injury Compensation Association(NICA) helps children and adults who suffer neurological damage as a result of birth defects. It aims to eliminate the lengthy civil process to collect claims and provide lifetime support.
Families must enroll in the program. If accepted, they will receive a down payment of $250,000. Thereafter, they receive lifetime payments for all necessary medical expenses related to the care of their children.
New York has one of the first medical institutionscompensation fundfor birth injuries. The fund was created in 2011 to reduce the cost of malpractice.
This fund covers future care costs after plaintiffs receive a judgment or settlement in a birth injury case. It only applies to “birth-related neurological injuries” and any document or settlement judgment must state this condition.
Once approved, families receive payment or reimbursement for care costs. Approved expenses include medical supplies, rehabilitation, permanent medical equipment, renovation and any other needs arising from the condition.
VirginiasBirth Injury Programdoes not use government resources. Participating hospitals and physicians fund. The state also collects fees from non-participating physicians and liability insurers. It adds those fees to the fund.
Families enroll in the program throughVirginia's Workers' Compensation System🇧🇷 If a family is eligible for the program, they are not eligible for compensation from a medical malpractice suit.
Lawyers for birth injury lawsuits
Medical liability law is one of the most complex areas of law. Malpractice insurers often hire aggressive lawyers to fight these claims, making an unbearable situation worse. This alone makes hiring an attorney imperative for a personal injury lawsuit.
Lawyers handle the claims process while clients focus on caring for their children or recovering from their grief. The unique services offered by the lawyers include:
- Specialist Network:Few malpractice attorneys are medical experts. They often hire specialists to review medical records and define the accepted standard of care. These individuals are better able to analyze and explain what went wrong during childbirth and how it contributed to a child's death or injury.
- Speeding up the process:Delaying is a common strategy used by defendants. If successful, it renders the evidence obsolete and risks prescription. Lawyers can monitor this development and prevent it from spoiling a case.
- Identify those responsible:Lawyers and their experts can determine who made what mistakes. You can also look into a doctor's background to see if the error is part of a larger pattern of behavior.
- Informed decision making:The Virginia Settlement Fund is eliminating the ability to file a malpractice suit. A lawyer can help the family decide which offers more relief - a lawsuit or the trust. If settlement funds prevail, this decision will affect families in other states.
- Negotiation:Lawyers are more used to low bids and delaying tactics. These skills put them in a better position to ensure that regulators take the claim seriously and offer appropriate settlements.
How to Find a Lawyer for a Birth Injury Trial
The best birth injury litigation attorneys are experienced in a medical malpractice practice with expertise in birth injury. Search websites for this experience or ask for a recommendation from your state bar association.
Frequently Asked Questions (FAQ)
What is the most common birth injury?
Head injuries are the most common birth injuries. The least serious injury is bruising and swelling of the scalp, which disappears within a few days. More serious injuries include fractures, bleeding, cerebral hemorrhage and neurological disorders.
How much does it cost to file a personal injury lawsuit?
Lawyers who handle birth injury claims charge contingency fees. A contingency fee depends on the success of the process. Upon completion, the lawyer receives remuneration from the product. This percentage is fixed, usually 30% to 40% depending on when the case is resolved. Cases resolved early in settlement negotiations require lower fees.
What is the difference between a birth injury and a birth defect?
A birth defect, today preferentially called a birth defect, is genetically determined. It develops as the fetus grows in the womb. Doctors can detect some birth defects before birth, but many do not appear until after the baby is born. Birth injuries occur during childbirth, often due to medical errors. They are not genetic, and many children with birth injuries develop normally when they are born.
Is my doctor personally responsible if I win?
Lawyers include doctors in lawsuits, but their malpractice carrier pays the claim. Physicians may personally pay claims when a settlement or judgment exceeds their insurance limits.