Being a first-time parent (or a parent of any newborn, even if it's not your first) comes with joy and often more than a little nervousness. All a parent wants is to give their child the best and healthiest start in life, even before we know who they are or who they'll grow to become.
That's why a birth injury can be devastating. It can prevent a parent from ever knowing their child's full potential because a birth injury can result in permanent, life-long disability or damage.
What if it didn't have to happen?
That's going to be every parent's question as they figure out the next steps and options for their newborn. A condition that's beyond our control is sometimes easier to accept than considering that a doctor or hospital might have been negligent in causing a baby's injury.
If the doctor or hospital was negligent — at fault — for your baby's injury, then you can file a lawsuit for medical malpractice. At the crux of any personal injury lawsuit is the plaintiff (the injured person or their representative) being able to prove that the defendant acted negligently. There are specific standards for medical malpractice, and they might vary depending on where you live and the type of hospital or birthing center.
A birth injury is a preventable condition that results from something that happened during the process of delivering the baby.
This is different from a birth defect, which 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 pregnant person, 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.
A medical malpractice lawsuit is part of the personal injury area of law. A birth injury is part of medical malpractice.
The plaintiff must prove that the defendant was negligent in order to successfully claim damages in a lawsuit. Damages are the financial costs associated with the injury.
These are the elements of negligence:
There cannot be a claim for medical malpractice if:
In general, these are some common types of medical malpractice errors:
However, when it comes to birth injuries, these specific examples are common:
A baby could experience fetal distress or trauma during the labor and delivery process.
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.
The human body is miraculous... both babies and pregnant people's bodies are meant to withstand the natural force of labor. But there are situations when the baby can't pass through the pelvic bones, often because the newborn is too large for the opening. Contractions that force the head against the hard pelvis 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. Similar to forceps, a vacuum extractor can cause a hemorrhage between the skull and scalp or other brain injuries.
In situations like this, the doctor didn't cause the trauma or distress. The doctor has no control over the mother's pelvic size, the baby's size, or other conditions that might occur. But it is the doctor's job to detect distress or trauma and prevent it before it causes damage.
As with other medical malpractice claims, you'll need to prove 3 things in a birth injury lawsuit:
Sometimes a doctor is wrong, but a malpractice claim arises only if the doctor was negligent.
A medical malpractice or birth injury case isn't something you should handle on your own. It's complex and will require a variety of medical and financial experts.
Your lawyer will begin by obtaining this evidence:
Are there defenses to medical malpractice?
A defendant will often try to demonstrate to the court that the plaintiff was contributorily negligent, or that their own actions played a role in causing their injury.
In a medical malpractice case, the doctor might say that the patient declined to consent to a necessary and recommended medical procedure. For instance, let's say you are in labor and your baby begins to experience fetal distress. The doctor might say it's necessary to have an emergency C-section to deliver the baby immediately. If you decline or don't consent to the surgical procedure after the doctor has said it's necessary, you likely can't make a case for malpractice if your child is injured as a result.
Another example is if the patient doesn't provide the doctor with their complete medical history. For instance, having prior C-sections or a previous termination of pregnancy can affect the strength of a pregnant person's uterus. It could raise the risk of certain outcomes during labor, like a uterine rupture. Particularly if your delivery is being performed by a doctor who hasn't followed your entire pregnancy, you need to tell your doctor your full medical history so that they can make the best decisions for your care and treatment.
A birth injury malpractice case is going to be complex by nature — the process of pregnancy, labor and delivery is unique to each person (and each pregnancy). Often, if you ask multiple doctors what to do in a particular situation, you will get as many answers.
But that doesn't mean you shouldn't try.
After all, if your baby has suffered an injury, you want and need to make sure that you have the financial resources to cover the costs of their medical treatment now and in the future — possibly for their lifetime. Birth injury lawsuits often result in high verdicts or settlement amounts because a lifetime of care for a disabled person is extremely expensive.
It's important to find a birth injury lawyer who is experienced, has access to experts and understands the nuances of medical malpractice laws in your state.