Learn about birth related injuries: who can sue and what damages can be recovered
Written by: Enjuris Editors
In some cases, birth-related injuries are caused by the carelessness of a doctor or other healthcare professional. In those cases, you may be able to file a medical malpractice claim and recover damages.
The birth of a child should be one of the most exciting and memorable times of a parent’s life. But sometimes things go wrong during the process. Approximately 7 out of every 1,000 infants in the United States are born with a birth injury. What’s worse, studies show that nearly 50% of all birth injuries are potentially avoidable.
So what happened if your infant was injured during birth?
This article examines the difference between birth injuries and birth defects, the causes of both, and the legal options available to parents in Arizona.
Birth injuries vs. birth defects
A birth defect is a problem that occurs when a baby is developing in the womb. Most birth defects are caused by a complex mix of genetics, behavior, and environmental conditions.
According to @CDCgov, birth defects affect 1 in every 33 babies born in the United States. Tweet this
In some cases, there may be legal recourse for a birth defect.
For example, if you take a medication while pregnant that causes a birth defect and there was no warning on the label, you may be able to file a product liability lawsuit against the manufacturer of the medication. However, for the majority of birth defects, there’s no party at “fault” to sue.
Birth injuries are different than birth defects. A birth injury is an injury sustained during labor and delivery. If the birth injury is the result of some action (or inaction) by your doctor or some other healthcare provider, you may be able to file a medical malpractice lawsuit.
Examples of birth injuries
There are all sorts of potential birth injuries, but the 7 most common birth injuries in the United States are:
Caput succedaneum. Caput succedaneum refers to a swelling of the soft tissues of the infant’s scalp that develops as the baby travels through the birth canal. The swelling generally disappears in a few days, but in certain cases may persist.
Cephalohematoma. Cephalohematoma refers to an area of bleeding underneath one of the infant’s cranial bones. It may appear like a raised lump on the infant’s head. In more serious cases, the infant may develop jaundice.
Bruising or forceps marks. Some infants show signs of bruising on the face as a result of contact with the mother's pelvic bones. Forceps (an instrument shaped like a pair of salad tongs) used to assist with delivery can leave temporary marks or bruises on the infant’s head and face.
Subconjunctival hemorrhage. A subconjunctival hemorrhage refers to the breakage of small blood vessels in the eyes of an infant. The redness is usually absorbed in 7-10 days.
Facial paralysis. During labor, pressure on an infant’s face may cause the facial nerves to be injured. If the nerve was only bruised, the paralysis usually improves in a few weeks. If the nerve was torn, surgery may be needed.
Brachial palsy. Brachial palsy occurs when the brachial plexus (the group of nerves that supplies the infant’s arms and hands) is injured. The infant loses the ability to flex and rotate their arm. Tearing of the nerve may result in permanent nerve damage.
Fractures. Fractures of the clavicle or collarbone are the most common fractures that occur during labor.
The birth injuries listed above can be serious, but generally result in only minor, temporary harm. Unfortunately, there are less-common birth injuries that are often considerably more serious. These include:
What causes birth injuries?
It’s important to understand that not all birth injuries are caused by the negligence of a doctor or healthcare professional. Some injuries sustained by newborns are simply due to the natural forces of labor and delivery.
Nevertheless, doctors and healthcare professionals are human and can make mistakes. Common causes of negligence-related birth injuries include:
Failure to monitor fetal vital signs
Failure to order an emergency cesarean section
Misuse of birth-assisting tools
Pulling the baby’s arm at delivery with too much force
Elements of a birth-related medical malpractice claim in Arizona
It’s very possible that your doctor did something—or failed to do something—during the childbirth process, and that conduct amounted to medical malpractice. In Arizona, a medical malpractice lawsuit can be brought against any licensed health care provider.
In order to establish a medical malpractice claim in Arizona, you must prove the following elements:
The healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare provider in the profession, and
Such failure was the proximate cause of the injury.
In a medical malpractice case, the main focus of the lawsuit is often on what the healthcare provider should have done in a specific set of circumstances. The standard by which the medical professional is judged is called the “medical standard of care.”
To put it simply, the question a judge or jury must answer is: Did the healthcare professional fail to provide the level of care of a reasonably skilled and knowledgeable healthcare professional under the circumstances?
Both the plaintiff and the defendant will attempt to persuade the judge or jury by presenting testimony from experts in the field.
A childbirth injury that results in death may give rise to a wrongful death claim. A wrongful death claim is a civil lawsuit brought by the surviving family members of the deceased. In a wrongful death claim, the family members must prove the same medical malpractice elements listed above.
What damages are available?
There are 2 types of damages available in a birth-related medical malpractice case:
Actual damages. Actual damages include the cost of additional treatment, loss of future wages, and pain and suffering.
Punitive damages. Punitive damages are awarded when medical malpractice is the result of reckless or intentional behavior on the part of the medical professional.
Arizona is one of the few states in the country that doesn’t place damage caps on medical malpractice claims. However, a ratio of punitive damages to actual damages that exceeds 9:1 will generally be deemed unconstitutional.
Arizona is one of the only states that doesn’t place a cap on medical malpractice damages. Tweet this
Statute of limitations
In Arizona, a medical malpractice lawsuit must be filed within 2 years of the date of the injury (or, of the date the injury is discovered).
For wrongful death claims, the lawsuit must be filed within 2 years of the date of the death.
Affidavit of merit
Arizona has a unique procedural rule that requires any plaintiff in a medical malpractice lawsuit to file (along with the complaint) a preliminary expert opinion explaining the factual basis for each claim against the licensed healthcare professional, as well as the acts, errors, or omissions that the expert considers to be a violation of the applicable standard of care.
The requirement is intended to reduce the amount of baseless claims (which raise medical malpractice insurance premiums).
A birth injury can be an extremely traumatic experience. We recommend using our free online directory to locate an experienced Arizona attorney so that you can focus on your family while your attorney works to obtain the compensation you and your infant deserve.