Birth injury claims are a subset of medical malpractice law
Your precious baby will always be perfect in your eyes. But if they’ve suffered an injury as part of the pregnancy or birthing process, you might have a legal claim. Here are the specifics about this area of medical malpractice law in California.
If you’re a to-be parent expecting a baby, you hope and wish that your little one will be born healthy and free from complications. And for most babies, that’s true. However, there are about 40 babies born each day in California who have some type of birth injury.
However, most complications that arise during birth are well-known to doctors, and the attending physician or medical staff will react quickly to minimize or eliminate any harm from a birth injury. A skilled professional in an equipped medical facility is prepared and can handle most situations.
Still, doctors are only human, and some birth complications arise in a way that allows the physician a split-second to make a life-changing decision. If a birth injury happens, you might be wondering whether it’s the doctor’s fault, or if the resulting harm could’ve been prevented.
California birth injuries and medical malpractice
Birth injury lawsuits fall under the umbrella of medical malpractice law.
Elements of medical malpractice
- The physician or treating professional was negligent when they violated the standard of care. In other words, they negligently failed to act as a reasonable professional would under similar circumstances. This is based on their training, specialty and community.
- The negligence caused an injury. Not working at the standard of care might be negligent, but it’s not malpractice if no harm or injury results. The plaintiff (injured person) must prove that the physician’s negligence caused their injury.
- The injury cost money. In other words, the patient would need to bear the cost of treatment, ongoing care, lost earnings, and other related expenses.
There cannot be a claim for medical malpractice if:
there's an injury but no negligence, or
there's negligence but no injury.
Both negligence and injury must be established.
Medical malpractice can affect any patient seeking medical treatment, but these are some specific examples of medical malpractice related to birth injuries:
- 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
Birth injuries vs. birth defects
A birth injury is different from a birth defect. Defects are usually genetic and are not preventable. The only cause is genetics, meaning it’s just who your baby is. It’s not your fault, the other biological parent’s fault, or the doctor’s fault.
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. A doctor might fail to detect certain defects, but the doctor's action or inaction does not cause the defect.
An injury that happens during labor and delivery could be caused by a doctor’s negligence. If that happens, you’re entitled to compensation, but you must prove it first.
A birth injury that could lead to a medical malpractice lawsuit is a preventable condition that results from something that happened during the process of delivering the baby.
Types of birth injuries
Of course, there are a variety of situations that could cause a birth injury. These include (but are not limited to):
- Bleeding in the brain
- Brain damage
- Brain swelling
- Erb’s palsy (brachial plexus palsy)
- Facial paralysis
- Hypoxic Ischemic Encephalopathy (Injury to brain cells from lack of oxygen)
- Skull fracture
Causes of birth injuries and life-long effects
- Cerebral palsy is a complex neurological condition with no cure. A child with cerebral palsy would likely experience mental, physical, and developmental disabilities and require constant in-home medical care.
- Physical trauma from excessive force, including brachial plexus injuries, shoulder dystocia, and other physical injury. This can happen if the delivering physician uses too much force when extracting the baby from the birth canal.
- Injuries from surgical tools like vacuum extractors and forceps. Sometimes it’s medically necessary to use these types of instruments. However, they can cause catastrophic injury to a baby when used incorrectly or if a mistake is made.
- Failure to monitor vital signs. Both the mother and the infant should be monitored during labor and delivery, and if their vital signs are weak or not as they should be, the medical staff should act accordingly and quickly.
- Medication and anesthesia errors could happen if a doctor or nurse makes a mistake with dosage, timing, or other issues related to medication administration.
- Failure to order a timely C-section (or C-section errors, generally) can result in injury to the mother or baby.
Birth injury to the mother
A birthing woman can be injured during labor and delivery. The most common injury is tearing in the vaginal or pelvic floor area.
Perineal trauma is any damage to the anatomy between the vagina and the anus that occurs during the birth of a baby.
This usually happens when the baby’s head is too large for the vagina to stretch around or if the head is a normal size but the vagina doesn’t stretch easily enough and it tears or ruptures as the baby’s head passes through.
Some tears only involve the skin and heal on their own in a few weeks. Others are more extensive and require treatment.
Some doctors believe in allowing the perineum to tear naturally if the baby’s head is too large to pass through; others believe in performing an episiotomy, which is a small, controlled cut that creates a larger opening. Neither is wrong, but there are varying schools of thought on when and how these techniques should be used.
However, the doctor needs always to be looking at the potential extent of the tear; if it’s going to be so significant as to cause serious injury, the doctor should order a C-section.
Statute of limitations for a California birth injury
A statute of limitations is the amount of time you have to file a lawsuit.
There are usually 3 important dates and exceptions to understand when it comes to the statute of limitations:
- The date of the injury (usually, this is the day your baby was born, but it’s possible the injury occurred during pregnancy).
- The date the injury was discovered or reasonably should have been discovered. There are several areas of the law that refer to “reasonableness.” In general, what’s reasonable is what the average person would expect in the situation at hand. It’s possible for an injury to occur and not be visible or apparent at the time. Suppose you discover an injury or your baby has an injury that is later determined to be the result of a birth-related trauma or incident. In that case, your statute of limitations begins to run on the date the injury was discovered or related to the accident or incident. However, that discovery needs to be reasonable, which means the average person would’ve recognized and sought treatment for the injury by that time.
- Foreign object exception. One area of medical malpractice law involves a foreign object that’s left behind in the body after a surgical procedure. Sometimes an object isn’t detected for years after the malpractice occurs, so many states have a separate statute of limitations related to foreign objects. This is unlikely to be an issue in a birth injury lawsuit.
The statute of limitations for a California birth injury is three years from the date of injury. If the baby dies as a result of the injury, the lawsuit must be filed within two years of the date of the death.
California wrongful birth claims
In California, a parent may file a wrongful birth lawsuit under very specific circumstances. If the physician did not inform a pregnant mother of a medical problem that would have compelled her to terminate the pregnancy if she’d known in time, the doctor could be liable for wrongful birth. For example, if a fetus has a genetic condition that would result in death soon after birth or severe disability, it’s the doctor’s job to provide the mother with that knowledge so she can make an informed decision about whether or not to carry the pregnancy to term.
There are a few other situations when a wrongful birth claim might be warranted:
- a doctor fails to perform an abortion and the child is born against the mother’s wishes;
- a sterilization procedure fails and leads to an unwanted pregnancy; or
- a child’s congenital or hereditary defect is not detected in a genetic test.
California wrongful life lawsuit
A wrongful life lawsuit can be filed by the child (or on their behalf) after suffering a severe birth injury. This lawsuit would be based on the premise that the injury is so debilitating that the better alternative would be not to have been born at all. This is usually used if the baby is not expected to survive childhood.
California wrongful death lawsuits for birth injuries
California allows a representative to file a wrongful death lawsuit for a person who died because of someone else’s negligence.
Babies are no exception, unless it’s an unborn baby. The California Supreme Court determined that an unborn baby cannot be the subject of a wrongful death lawsuit. This is based on the outcome of 1997 lawsuit Justus v. Atchison, and the California Code of Civil Procedure § 377.60.
To file a California infant wrongful death claim, the baby must have been born alive and subsequently died from their birth injury.
Claiming damages for a California birth injury
You can recover damages for all economic losses, including medical treatment and lost income. A California plaintiff may also seek compensation for pain and suffering.
If your baby suffered a birth injury that you believe is the result of medical malpractice, you should contact a California birth injury lawyer right away for guidance.