You have a brand-new baby.
You’re probably simultaneously exhilarated and exhausted... and that’s if your labor and delivery were perfect and the baby is healthy and thriving.
But what if you or your doctor have medical concerns about your baby?
That adds more stress around caring for a newborn, along with your own recovery from pregnancy, labor, and delivery.
You might be filled with questions like:
It’s also natural to wonder if there’s someone to blame. Some parents blame themselves (but shouldn’t) and others wonder if perhaps the doctor or hospital made a mistake.
If there was a mistake made, you could be entitled to compensation from a birth injury lawsuit, which is a type of medical malpractice.
If your baby suffered a birth injury, you might be able to make a claim for medical malpractice. If your baby has a birth defect, a successful claim is less likely. Continue reading to learn about the important legal distinctions between birth injuries and defects.
There are 3 types of birth-related medical malpractice lawsuits:
A birth defect is a problem resulting from your child’s DNA. In other words, it’s genetic. There’s nothing a parent or doctor can do to prevent a genetic defect, though in some cases they can be diagnosed and treated before birth.
|Common birth defects|
|Anophthalmia/microphthalmia||Baby is born without 1 or both eyes, or the eyes are small because they didn’t develop fully|
|Anotia/microtia||Birth defects of a baby’s ear|
|Cleft lip and cleft palate||The lip or mouth do not form properly|
|Congenital heart defects||A range of conditions that affect the structure and function of the baby’s heart|
|Craniosynostosis||The bones in the skull join together too early before the brain is fully formed, so as the brain grows the skull becomes misshapen|
|Diaphragmatic hernia||The baby is born with a hole in the diaphragm|
|Down syndrome||The baby is born with an extra chromosome|
|Esophageal atresia||Part of the esophagus does not develop properly|
|Gastroschisis||The baby’s intestines are outside the body as a result of a defect in the abdominal wall|
|Hypospadias||A birth defect only in boys, in which the urethra has an abnormal opening anywhere from just below the end of the penis to the scrotum; this condition could be minor or severe|
|Microcephaly||The baby’s head is smaller than expected and there’s a possibility that their brain might not have developed properly|
|Muscular dystrophy||This group of genetic disorders results in muscle weakness over time|
|Neural tube defects||These are severe defects of the brain and spine|
|Omphalocele||The abdominal wall is defective, so the intestines, liver, or other organs are outside the belly through the belly button|
|Upper and lower limb reduction defects||Part of or the entire arm or leg fails to completely form during pregnancy and the baby is born with the limb smaller than normal size or missing|
Some birth defects are detected early in pregnancy through ultrasound, blood testing, and other routine diagnostics. If your doctor suspects that there might be a problem, they will likely order additional testing.
There are 3 reasons why this type of prenatal testing is important.
It could be malpractice to fail to detect and inform the parent of a birth defect. A doctor is expected to care for a patient to the best of their ability and with all available resources. The doctor must conduct the proper screening tests and interpret the results accurately in order to assess the baby’s overall health.
Along those same lines, if a condition is detected early in the pregnancy but the parent isn’t informed in time to make a decision about whether to terminate the pregnancy, that could also be negligence. In that situation, the doctor might have failed to properly care for the parent — who is also their patient — and the baby’s birth and quality of life could be a breach of the doctor’s duty.
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:
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.
There are 3 elements that must be present in order to make a claim for medical malpractice:
Medical malpractice is when a medical professional or facility causes injury to you or your baby. This might include:
If there are medical concerns immediately after your baby is born (or if medical conditions develop later in their childhood), you should seek the advice of a doctor who can determine whether the condition is the result of a birth defect or a birth injury.
If it’s a birth defect, then you likely cannot file a medical malpractice claim because it was not caused by the doctor’s negligence. The exception might be if the condition is related to a medication that was prescribed during your pregnancy, or if it’s something that should’ve been detected as part of routine pregnancy diagnostics. Not every condition is able to be detected in utero.
Some birth defects are undetectable until the baby is born or, in some cases, when the child is older. There are even circumstances when an adult is diagnosed with a medical condition that is related to a birth defect, but they don’t affect the patient until far into adulthood.
If your baby suffers a birth injury, you might consider whether it’s the result of medical malpractice. In order to begin the process, you should seek the opinion of a different physician (someone separate from the practice or hospital that managed your baby’s birth and your pregnancy).
You should also keep records of every condition, treatment, medication, procedure, and conversation you have with your obstetrician and any pediatric specialists or physicians. These records can be very important if you need evidence of malpractice.
You also should consult a birth injury medical malpractice lawyer near you. Yes, these cases are complex. But if your baby is a victim of a doctor’s negligence, you (and your baby) deserve to be compensated for those mistakes. Your baby could be left with extensive medical treatments or a lifelong condition that requires ongoing care, all of which add up to financial costs.
These additional resources can help you to handle a birth injury: