An overview of birth-related medical malpractice cases
The National Vital Statistics Report defines a birth injury as "an impairment of the neonate's body function or structure due to an adverse event that occurred at birth."
To put it more simply, a birth injury is an injury to a baby that occurs during the process of labor and delivery.
Though not all birth injuries are preventable, legal remedies may be available to help you cover the cost of injuries caused by the carelessness of a healthcare professional.
What causes a birth injury?
Birth injuries generally occur as a result of one of the following:
- An error made by a healthcare professional
- An action taken by a healthcare professional to prevent a greater harm
- Unpreventable forces of labor and delivery
Though a birth injury can occur during any labor and delivery, birth injuries are more common when any of the following factors are present:
- The baby is large
- Abnormal birthing presentation (breech delivery, etc.)
- The baby is premature (born before 37 weeks)
- The size or shape of the mother's pelvis or birth canal makes it difficult for a "normal" vaginal birth (cephalopelvic disproportion)
- Labor is difficult or very long (dystocia)
- The mother is overweight
- There's a cesarean delivery
- Devices are used to deliver the baby (vacuum, forceps, etc.)
What are some of the most common birth injuries?
Birth injuries range from minor injuries that heal quickly without any intervention to severe injuries that require intensive care for the rest of the child's life.
Let's take a look at some of the most common birth injuries:
- Brachial plexus injuries. The brachial plexus is a network of nerves that send signals from your spinal cord to your shoulders, arms, and hands. An injury to these nerves generally occurs when the nerves are stretched, compressed, or torn from the spinal cord.
- Caput succedaneum. This condition describes a swelling of the soft tissues of the baby's scalp that develops when the baby travels through the birth canal. The swelling usually disappears in a few days without problems. Babies delivered by vacuum extraction are more likely to develop caput succedaneum.
- Cephalhematoma. This condition is a collection of blood that appears several hours after birth as a raised lump on the baby's head. Over time, the body simply absorbs the blood. However, if the area of bleeding is large, babies may develop jaundice as the red blood cells break down.
- Cerebral palsy. CP is the abnormal development of the brain or damage to the developing brain that affects a child's ability to control his or her muscles. Cerebral palsy can be caused by a lack of oxygen to the brain.
- Facial paralysis. Pressure on the baby's face may cause the facial nerve to be injured. As a result, the baby's face may become paralyzed. Depending on the intensity of the pressure, the paralysis may improve in a few weeks.
- Fractures. Fractures of the clavicle and collarbone are particularly common during labor and delivery. The fractures are generally the result when there's difficulty delivering the baby's shoulder or during a breech delivery.
- Spinal cord injuries. Injuries to the spinal cord during birth are usually the result of force being applied by the doctor's hands, forceps, or a vacuum while delivering the baby.
When can a medical professional be held liable for a birth injury in Colorado?
If any licensed healthcare professional did (or failed to do) something that caused your baby's birth injury, the healthcare professional may have committed medical malpractice. In order to establish a medical malpractice claim based on a birth injury in Colorado, you need to prove that:
- The healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare provider in the same profession, and
- The failure was the cause of your infant's injury.
Keep in mind that some birth injuries are unavoidable and others are necessary to avoid greater harm. In order to establish liability, the healthcare provider must have done something that a reasonable healthcare provider should not have done.
Randy and Shelly Peek obtained a medical malpractice judgment against Gerald Lockwood, a Colorado physician specializing in obstetrics and gynecology.
Randy and Shelly's child developed erythroblastosis fetalis (EBF) during his birth, which caused him to develop a severe mental and physical disability. The Colorado trial court determined that the EBF developed because Shelly's blood, which was Rh-negative, attacked the fetal blood, which was RH-positive.
The problem could have easily been prevented if Dr. Lockwood had administered a drug called RhoGAM. However, Dr. Lockwood mistyped or misrecorded Shelly's blood type and therefore never administered the drug.
As a result of Dr. Lockwood's malpractice, the Colorado trial court awarded Randy and Shelly Peek $575,000.
What damages are available in a Colorado birth injury case?
Most birth injuries are minor and require minimal medical treatment. However, serious birth injuries can require expensive and often lifelong treatment.
Fortunately, Colorado allows parents of injured children to recover economic damages (monetary losses) and non-economic damages (non-monetary losses) on their behalf:
|Pain and suffering
|Lost earning capacity
|Loss of consortium
Although Colorado allows recovery of both economic and non-economic damages, the state limits (or "caps") the amount of damages you can recover in a medical malpractice lawsuit.
In Colorado, you can only (with rare exceptions) recover a maximum of $1 million in damages (up to $300,000 of which can be non-economic damages).
In order to recover any amount above $1 million, the plaintiff will need to prove to the court that the million dollar cap would be unfair under the circumstances.
How do I file a birth injury claim?
Filing a birth injury claim is just like filing any other personal injury lawsuit with one exception.
The plaintiff must file a "certificate of review" within 60 days of serving the lawsuit on the defendant. The certificate of review must state that:
- The plaintiff consulted a medical expert with experience about the medical area at issue, and
- The expert does not believe the lawsuit is unreasonable.
How long do I have to file a birth injury claim?
Every state has a "statute of limitations" that limits the amount of time you have to file a lawsuit. If you fail to file the lawsuit within the statute of limitations, the lawsuit is dismissed and you're permanently barred from filing it.
In most medical malpractice cases, the plaintiff has 2 years to file a lawsuit. However, any lawsuit brought on behalf of a minor under the age of 6 at the time of the malpractice must be filed before the child turns 8 years old.