Birth injury claims are a subset of medical malpractice law
There were nearly 4 million babies born in the U.S. in 2018.
Six to 8 of every 1,000 babies born in America are born with a birth injury. That equals around 28,000 per year, or 1 in 10,000.
If you're the parent of a child who experienced a birth injury in Arkansas, here's a guide for what you should know and where to turn for help.
The difference between a birth defect vs. a birth injury
You might be aware that there are things that can happen to babies in utero (before birth) that are the result of genetic anomalies or other conditions of the pregnancy that are no fault of the doctor or the mother. Just like an adult can develop certain conditions during the course of their life, so can an unborn baby, and those conditions are not preventable.
A birth defect is a problem that is the result of your child's DNA. For example, Down's Syndrome, cleft palates, heart murmurs, a club foot, or other issues can arise because of your child's genetics. These are not preventable, not the fault of the mother, and not medical malpractice. A doctor might fail to detect certain defects, but the defect is not caused by the doctor's action or inaction.
Some birth defects are caused by accidents (for example, if the mom is in a car accident or falls on her stomach while pregnant) or from medications that a woman takes during her pregnancy. A doctor might be negligent if they prescribed medication that is known to cause birth defects if the doctor knew or should've known that the woman was pregnant.
A birth injury is a preventable condition that results from something that happened during the process of delivering the baby.
The most common causes of birth injuries include:
- Pulling or twisting the infant during delivery
- Miscalculating the size of the fetus
- Premature or post-mature delivery because of improper dating
- Rh incompatibility
- Failure to provide oxygen to a newborn if needed
- Deliveries using forceps or vacuum extraction
- Failure to perform an emergency cesarean section
- Failure to detect or monitor distress or fetal heartbeat
- Incorrect medication or dosage to the mother during pregnancy or labor
What constitutes medical malpractice?
Medical malpractice is when a medical professional or facility causes injury to you or your baby. This might include:
- Failure to diagnose a condition or an incorrect diagnosis
- Misreading or misunderstanding lab results
- Conducting an unnecessary surgery
- Making a surgical or medical error
- Giving improper medication or dosage
- Providing incomplete or poor follow-up care
- Prematurely discharging you from care
If you've ever been pregnant, you know that prenatal care involves a lot of tests. These tests can include ultrasounds, chorionic villus sampling (CVS), amniocentesis, and a variety of blood and urine tests for conditions like gestational diabetes, various genetic conditions, and group B strep.
If a doctor fails to test a pregnant woman for group B strep, for example, and it turns out that she has the bacteria, and if it causes harm to her baby, the doctor would be negligent and you might have a medical malpractice claim.
10 most common birth injuries
- Brachial Plexus Palsy (Erb's Palsy)
- Bone fractures
- Caput succedaneum
- Perinatal asphyxia
- Intracranial hemorrhage
- Subconjunctival hemorrhage
- Facial paralysis
- Spinal cord injuries
- Cerebral palsy
These conditions can result in decreased strength, stamina, and nerve sensations; cognitive or emotional impairments or other psychological problems; failure to thrive and grow; osteoarthritis and other joint dysfunction.
Cerebral palsy (CP) can result in severe and lifelong complications, and it's one of the most severe injuries related to birth trauma. Some individuals with CP will have light, involuntary movements. Others will have a complete loss of movement. CP is caused by a brain injury that's usually caused when a baby doesn't get enough blood, oxygen, or other nutrients before or during birth.
Brain damage that causes CP can happen before or during birth, or during the first few years of a child's life because the brain is still developing.
Most CP is congenital, or before or during birth. This is caused by:
- Low birthweight
- Premature birth (especially babies born before 32 weeks gestation)
- Multiple births (twins, triplets, etc.)
- Assisted reproductive technology (infertility treatments)
- Infections during pregnancy, such as chickenpox, rubella, cytomegalovirus, or other infections of the placenta or fetal membranes, or maternal pelvic infections
- Jaundice or kernicterus, which happens when a baby has too much bilirubin in their blood
- Mothers who have thyroid problems, intellectual disability, or seizures
- Birth complications, including detached placenta, uterine rupture, or umbilical cord problems that disrupt oxygen supply
A fetus is in distress when they are not tolerating labor, and this is usually evident by electronic fetal heart monitoring. A baby in fetal distress sometimes needs to be delivered immediately, which means an emergency C-section is better than waiting for labor to take its course.
Fetal distress can be caused by a placenta that's not functioning normally or when the umbilical cord is wrapped around the baby's neck, or for other reasons like too frequent or strong contractions. Fetal distress often results in low oxygen to the fetus that, over time, could cause brain damage. Cerebral palsy is a result of brain damage from lack of oxygen.
A baby is “designed” to withstand the force of labor because its skull protects the brain. However, some babies are too large to safely pass through the mother's pelvic bones. If the baby's head is too large for the mother's pelvis, then the contractions can force the head against the hard pelvis, which could cause significant trauma and brain damage.
Some doctors will use forceps to grasp the baby's head and attempt to pull the baby out, or reposition them in order to make a vaginal delivery possible. However, forceps can cause skull fractures or brain injuries like a hematoma.
A vacuum extractor is also used to facilitate vaginal delivery. It's a rubber cup that's inserted onto the baby's head, tightened, and then used to “suck” out the baby. Similarly to forceps, a vacuum extractor can cause a hemorrhage between the skull and scalp or other brain injuries.
Do you have a claim for an Arkansas birth injury?
A plaintiff in an Arkansas medical malpractice claim for a birth injury must prove these 3 elements:
- That there's an applicable standard of health care practice for the service provided.
- The medical provider failed to act in accordance with that standard.
- The failure caused the injury to the mother or baby.
A medical professional's standard of care is the reasonable approach, practice, or procedure for a particular medical situation. Reasonableness is determined by what's common and accepted in the local medical community. That means the standard of care might be different depending on where the treatment was provided. A physician or other medical professional has breached the standard of care if they failed to provide treatment consistent with the local standard.
In addition to breaching the standard of care, an injured plaintiff can make a claim that:
- The provider didn't use their best judgment in determining treatment or care.
- The provider failed to use reasonable care and diligence to apply their knowledge and skill to the patient's treatment.
Sometimes a doctor is wrong, but a malpractice claim arises only if the doctor was negligent.
Statutes of limitations for an Arkansas birth injury lawsuit
In general, medical malpractice claims (including birth injury lawsuits) in Arkansas must be filed within 2 years of the injury, which begins to run on the date the injury happened. Some states “pause” the clock and start on the date the injury was discovered, but Arkansas does not.
There are a few exceptions to this rule, one of which is for an injured patient who's a minor. If the child is 9 years old or younger when the negligent medical treatment occurred, they have until the child's 11th birthday to begin a medical malpractice lawsuit.
The Arkansas Charitable Immunity Doctrine
Some non-profit hospitals and medical facilities are protected from medical malpractice claims. The law seeks to avoid a charity's assets being diminished by paying damages for a lawsuit. However, sometimes the charity's insurance company can still be sued for related damages.
The determination about whether a facility falls under this protection is usually decided based on whether the organization relies on donations for funding, if its services are free of charge, and if directors and officers receive compensation.
Damages in a birth injury lawsuit
If you or your child were injured from a birth injury, you might be able to claim damages that include costs for:
- Medical expenses, including surgeries, hospital visits, doctor visits, diagnostic tests, prescription medications, and other costs.
- Caretaking and nursing care
- Assistive devices and equipment, like wheelchairs, hearing aids, braces or orthotic devices
- Home modifications such as wheelchair ramps or door expansions and vehicle modifications
- Respite care
- Physical and occupational therapy
- Scarring and disfigurement
- Mental and emotional anguish, pain and suffering, and other emotional distress
- Physical rehabilitation
- Specialized educational needs
- Loss of capacity to earn a living
An Arkansas court could award punitive damages (damages in addition to your compensatory damages that are intended to punish the defendant as a deterrent from repeating the negligent behavior) if the defendant knew or should have known that their conduct would result in injury or damage and that they continued the conduct with malice or in reckless disregard for the consequences—or if they intentionally caused injury or damage.
Punitive damages may be awarded up to $250,000 or 3 times the amount of compensatory damages, capped at $1 million.
What to do after a birth injury
Some birth injuries go undetected for months or years after a baby arrives. They also might be mistaken for other spinal cord injuries or neurological disorders.
You should investigate the possibility of a birth injury if your child has one or more of these conditions:
- They cannot move one of their limbs.
- They have vision or hearing problems.
- They prefer one arm or hand over the other.
- There are muscle tone issues like stiffness or weakness.
- They miss milestones like rolling over, smiling, standing, etc.
If you're concerned about your child's development for these or other reasons, the first step is to seek medical treatment. Usually, the doctor who delivers babies (an obstetrician) is different from the physician who oversees their care post-birth. Since a birth injury is usually caused during the labor and delivery process, your child's pediatrician is likely a good person to ask for an unbiased opinion about the cause of the medical issues.
If your doctor or a specialist believes that your baby has a birth injury that might've been caused by medical malpractice, you need to consult with a lawyer as soon as possible. These cases are among the most complex scientific lawsuits before the courts. It's important to find a lawyer who understands the complexities of this particular type of case and who's familiar with the medical situation and established practices for labor and delivery.