What happens when a healthcare professional commits malpractice during labor and delivery?
The majority of healthcare professionals in Georgia provide excellent care during the stages of labor and childbirth. But in some cases, the care provided falls below the acceptable standard of care. When an injury to a child results from substandard care, a birth injury lawsuit may be appropriate.
In this article, we'll explain what you need to prove to establish a successful birth injury claim. We'll also take a look at when you need to file your lawsuit, and what steps you should take immediately following a birth injury.
What is a birth injury?
A birth injury is an injury suffered by a child during labor and delivery.
What's the difference between a birth injury and a birth defect?
Birth injuries are different from birth defects. A birth injury is the result of some action or inaction that occurs during labor and delivery, whereas a birth defect occurs when the baby is developing in the womb. Birth defects are rarely someone's "fault" and therefore lawsuits based on birth defects are rare.
Birth injuries can be minor injuries that heal without treatment or catastrophic injuries that require life-long care.
Birth injuries that are generally considered minor include:
- Swelling or bruising of the head
- Breakage of small blood vessels in the eyes
- Fracture of the clavicle or collarbone
- Scalp scratches
- Facial nerve damage
Birth injuries that are generally considered serious include:
Due to the time and expense associated with litigating birth injury claims, it can be difficult to find an attorney who's willing to handle a minor birth injury lawsuit. On the other hand, attorneys are generally eager to handle cases involving more serious birth injuries.
When can you sue for a birth injury in Georgia?
Although birth injuries are always stressful for parents, you can't always sue someone for a birth injury. To sue someone for a birth injury, someone has to be at fault. Healthcare providers aren't considered at fault if the birth injury was unavoidable or if the injury was necessary to prevent a more significant injury.
So when is a healthcare provider at fault for a birth injury?
To establish fault in a birth injury case in Georgia, you need to prove that:
- Your healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare professional in the same profession, and
- The failure was the cause of your child's injury.
In other words, Georgia acknowledges that healthcare professionals should be held to certain standards. If a healthcare professional delivers care that falls below these standards and an injury occurs as a result, the healthcare professional will be held liable.
To convince an insurance company, judge, or jury that a healthcare professional met or failed to meet the applicable standard of care, parties generally retain medical experts to provide reports and testify about the appropriate medical standard of care and whether the healthcare professional met that standard.
Common examples of actions that might lead to a birth injury lawsuit include:
- Failure to diagnose or misdiagnosis
- Failure to monitor the baby
- Misreading or ignoring test results
- Unnecessary surgery
- Surgical errors
- Premature discharge
- Failure to order proper testing
- Failure to recognize symptoms
At trial, Zetah's lawyers successfully argued that the failure to induce right away fell below the appropriate standard of care. In other words, a reasonable healthcare professional in the same profession would have induced Zetah immediately after the ultrasound.
Zetah's lawyers also successfully argued that had the unnecessary delays not occurred, Zetah's child would have been born perfectly healthy. Instead, she was born with spastic quadriplegic cerebral palsy (a severe brain injury).
Ultimately, the jury in Lawrenceville, Georgia, awarded Zetah and her child a $30.5 million verdict.
How much can you recover in damages for a birth injury?
Georgian's can recover the following damages in a birth injury case:
- Economic damages. Economic damages are monetary losses caused by the injury. Economic damages include medical expenses (past and future) and lost wages (past and future).
- Non-economic damages. Non-economic damages are the non-monetary losses that stem from the injury. Non-economic damages include pain and suffering.
- Punitive damages. Punitive damages are intended to punish the defendant. Punitive damages are only available in cases where the defendant's actions were particularly egregious.
It's important to keep in mind that birth injury lawsuits are generally filed by parents on behalf of an injured child. As a result, the damages recovered go toward the child's medical expenses (with anything extra usually being placed in a trust that the child can access when they turn 18).
It's particularly difficult to calculate the economic and non-economic losses in a birth injury case because most losses are future losses.
For example, a child who suffers a brain injury may require a lifetime of care. What's more, the child will likely miss out on wages they would have otherwise earned had they not suffered a brain injury. Experts (medical professionals, vocational experts, etc.) are often asked to testify about future losses.
What is the statute of limitations for Georgia birth injury cases?
Every state has a "statute of limitations" that determines how long you have to file a lawsuit.
If you fail to file a lawsuit within the allotted time, your case will be dismissed and you will be permanently barred from filing the lawsuit.
Under Georgia law, a parent or guardian can file a lawsuit on behalf of their injured child up to the point that the child turns 7 years old.
It's not always clear that a child has been injured at birth. Sometimes, the symptoms of a birth injury don't appear until years after the injury occurs. If you can prove that, despite your due diligence, you weren't aware of the injury until after the child's 7th birthday, you may be able to have the deadline extended (this is called "tolling" the statute of limitations).
What steps should be taken immediately after a birth injury?
You probably didn't think your first act as a parent would be preserving your child's birth injury claim, but life as a parent is unpredictable.
After a birth injury, there are several steps you, as the parent or guardian of the injured child, should take in order to improve your chances of recovering damages down the road.
- Focus on your child's health. Your child is vulnerable after a birth injury and it's important to do everything you can to improve their prognosis. This includes seeking out the proper medical experts (it's a good idea to avoid communicating with the delivering doctor if it's safe to do so) and keeping up with follow-up appointments.
- Document everything. It's never too early to start keeping track of all the expenses related to the injury. Keeping good medical records can help ensure you receive all the damages you deserve down the road. Consider using our expenses/damages worksheet and pain journal form to help stay organized.
- Contact an attorney. Once you've sought treatment for your child, contact an attorney who has experience handling birth injury cases. Your lawyer can help determine whether you have a valid claim and can advise you with respect to the next steps you should take.
- Get support. Parents who experience a birth injury can benefit from more than just medical and legal help. During this emotionally-trying time, it's a good idea to reach out to support groups in your area.
Ready to meet with a birth injury attorney? Use our free online legal directory to locate a birth injury attorney in your area.
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