How will you manage the costs for your child’s medical care caused by a doctor’s negligence?
You've waited 9 long months for your baby to arrive (10 months, if you count the way the doctors do).
Now, all you want to do is go home, cuddle your baby, and get accustomed to parenthood (or maybe get some sleep).
But you can't, because your baby was injured during the process of being born.
Maybe the doctors are still working to diagnose the injury, or maybe your baby had an extended stay in the hospital in order to receive treatment. Or maybe you can go home, but your baby needs special care and services that will continue in the months and years ahead.
6 to 8 of every 1,000 babies born in America are born with a birth injury. That equals around 28,000 per year, or 1 in 10,000.
Chances are that if you're a new parent, the last thing you need to worry about is filing a lawsuit. Especially if you're busy caring for a child with a birth injury, the legal system might be the last thing on your mind. However, your child's medical bills might be piling up as you read this and you might be concerned about how you're going to pay for lengthy hospital stays, surgeries, or medical treatment.
A birth injury lawsuit might be your best option, but first there are some important things you should know about these types of cases and Illinois law.
If your child suffers an injury during labor or delivery, you may be able to recover damages by filing a birth-related medical malpractice lawsuit or a wrongful death lawsuit.
Let’s take a closer look.
Illinois medical malpractice laws
A birth injury lawsuit is a type of medical malpractice, which is when a medical professional or facility causes injury to you or your baby.
Medical malpractice might include:
- Failure to diagnose a condition or an incorrect diagnosis
- Misreading or misunderstanding lab results
- Conducting an unnecessary surgery
- Making a surgical or medical error
- Giving improper medication or dosage
- Providing incomplete or poor follow-up care
- Prematurely discharging you from care
Birth injury liability
Birth injuries are often the unavoidable result of the normal process of being born. To establish liability for a birth injury, you need to prove that the injury wasn’t simply the result of being born, but was caused by a healthcare professional’s carelessness or negligence.
In order to prove that medical malpractice is the cause of your baby's injury, you must demonstrate these 3 elements:
- There's an applicable standard of health care practice for the service or treatment being provided.
- The medical provider failed to provide treatment in accordance with the standard.
- The failure caused the injury to the mother or baby.
If you’re able to establish the elements listed above, you can file a birth-related medical malpractice lawsuit against the healthcare provider and the hospital.
The standard of care is whatever is considered “reasonable” in a particular medical situation based on what's common and accepted in the local medical community.
The word local is important, here.
A small, rural town physician might have a different set of practices than a doctor who practices in a large city hospital with more resources. Medical malpractice is based on what other doctors in the area (or comparable areas) would do in the situation that's the subject of the claim.
Birth-related wrongful death claims in Illinois
If the unthinkable happens and your newborn dies as a result of a healthcare professional’s carelessness, you can file a wrongful death lawsuit against the healthcare provider and the hospital.
A wrongful death lawsuit is just like a birth-related medical malpractice lawsuit in the sense that you have to prove the same elements.
The main difference between a birth-related medical malpractice claim and a wrongful death claim is the damages that can be recovered (discussed below).
Illinois medical malpractice statute of limitations
Generally, you must file a medical malpractice lawsuit within 2 years from the date of the injury or the date when you should reasonably have discovered the injury, but it must be within 4 years from the act or omission that caused the injury.
However, if the victim is under age 18 at the time of the injury (as is the case in a birth injury lawsuit), the claim must be filed within 8 years from the date of the injury. If the child has a disability, the statute of limitations begins to run when the disability is removed (but a claim for an injury when a person is a minor cannot be filed after the person turns 22 years old).
The statute of limitations also doesn't begin to run if the medical professional's malpractice was fraudulently concealed.
Types of birth injuries
The term “birth injury” refers to any injury that is suffered by a baby during the process of labor and delivery.
Though most birth injuries are minor and heal without intervention, some birth injuries have long-lasting consequences.
Common birth injuries with potentially long-lasting consequences include:
Birth-related brain injury
A brain injury can range from mild to severe, and there are a variety of ways this can happen. These are the most common:
- Hydrocephalus is a condition associated with a buildup of cerebrospinal fluid in or around the brain. Hydrocephalus may be congenital (present at birth) or it may develop as a result of a traumatic birth.
- Cerebral hemorrhage. Bleeding in the brain.
- Intraventricular hemorrhage. Bleeding in the area where spinal fluid is produced, which can often happen in premature babies or those with low birth weight.
- Subarachnoid hemorrhage. Bleeding between the arachnoid membrane and brain cover.
- Cephalohematoma. Bleeding between the skull and skull cover, which causes a bump on the head that can last up to several months.
- Perinatal asphyxia. Lack of oxygen or blood to the brain during labor and delivery, which can lead to mental and physical developmental problems, along with shock, labored breathing, seizures, coma, or death.
- Periventricular leukomalacia (PVL) is a softening of white brain tissue near the ventricles that can affect the nerve cells that control motor movements. A child with PVL may also have cognitive issues. PVL generally occurs when a baby gets too little blood or oxygen.
- Hypoxic-ischemic encephalopathy (HIE) is a type of brain damage caused by oxygen deprivation and limited blood flow.
Brachial plexus injury
This is damage to the peripheral nerve, which can prevent hand and arm movement. This often improves over time, but if the nerve is actually torn during the birth process, it could result in ongoing medical issues.
Cranial nerve injury or spinal cord
This condition can be caused if a baby was improperly rotated, pulled, or stretched during delivery. It can result in facial paralysis or other spinal cord injuries that lead to paralysis of other parts of the body.
Facial paralysis may occur when pressure is put on the baby’s facial nerves. If the nerve is bruised, the paralysis usually improves in a few weeks. If the nerve is torn, surgery may be necessary.
Bone fractures sometimes occur during a breech birth or when the baby is large. Babies' bones are soft and the bones in their heads haven't yet set at the time of birth, so they break easily. A baby's clavicle (collarbone) can also break or fracture during birth.
This blunt abdominal injury can damage a baby's liver and other organs, but it's not common.
Cerebral palsy (CP)
Cerebral palsy refers to a group of disorders that affect a person’s ability to move and maintain balance. All people with cerebral palsy have issues with movement, but many also have other conditions, including intellectual disabilities.
CP can result in severe and lifelong complications, and it's one of the most severe injuries related to birth trauma. Some individuals with CP will experience light, involuntary movements. Others will have a complete loss of movement. CP is caused by a brain injury that's usually caused when a baby doesn't get enough blood, oxygen, or other nutrients before or during birth.
Brain damage that causes CP can happen before or during birth, or during the first few years of a child's life while the brain is still developing.
Most CP is congenital, or before or during birth. This is caused by:
- Low birthweight
- Premature birth (especially babies born before 32 weeks gestation)
- Multiple births (twins, triplets, etc.)
- Assisted reproductive technology (infertility treatments)
- Infections during pregnancy, such as chickenpox, rubella, cytomegalovirus, or other infections of the placenta or fetal membranes, or maternal pelvic infections
- Jaundice or kernicterus, which happens when a baby has too much bilirubin in their blood
- Mothers who have thyroid problems, intellectual disability, or seizures
- Birth complications, including detached placenta, uterine rupture, or umbilical cord problems that disrupt oxygen supply
Common causes of birth injuries
It's important to realize that there's a big difference between a birth defect and a birth injury.
A birth defect happens in utero and is usually caused by your child's DNA (i.e. genetics). It's no one's fault — not the mom's, not the doctor's — it can just happen. A doctor might fail to detect a birth defect, but that is not the same as causing a birth defect.
A birth injury results from something that happened during the process of delivering the baby. It might be preventable, and it might be the doctor's fault.
Some birth defects are caused by prescription or over-the-counter medications the mother uses during pregnancy. Fetal Alcohol Syndrome (FAS) is also a birth defect, which is the result of alcohol consumption during pregnancy.
A doctor might be liable for a defect if they prescribed a drug that was known to be unsafe during pregnancy, if they prescribed the wrong dosage of a drug, or if they recommended that the mother use some other medication that is known to cause harm to a developing fetus.
The most common causes of birth injuries include:
- Pulling or twisting the infant during delivery
- Miscalculating the size of the fetus
- Premature or post-mature delivery because of improper dating
- Rh incompatibility
- Failure to provide oxygen to a newborn if needed
- 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
What are the risk factors associated with birth injuries?
Birth injuries can occur during any labor and delivery. However, certain factors can increase the risk of birth injuries.
Fetal and pregnancy-related factors that increase the risk of birth injury include:
- Macrosomia (above average birth weight)
- Macrocephaly (above average head size)
- Very low birth weight and extreme prematurity
- Fetal congenital anomalies
- Oligohydramnios and malpresentation, including breech presentation
Maternal factors that increase the risk of birth injury include:
- Maternal obesity
- Maternal diabetes
- Cephalopelvic disproportion
- Small maternal stature
- Primiparity (first-time delivery)
- Dystocia and difficult extraction
Fetal distress and trauma
A baby who's not tolerating labor is in fetal distress. Usually, the medical team becomes aware of this because of electronic fetal heart monitoring. If a baby is in distress, it often needs to be delivered immediately, which could mean that a cesarean section is necessary because the baby's condition makes it too dangerous for labor to take its natural course.
Fetal distress can be caused by a placenta that doesn't function normally or if the umbilical cord becomes wrapped around the baby's neck. It could also be caused by frequent and strong contractions. The result is that the baby doesn't receive enough oxygen, and if enough time passes, that lack of oxygen could cause brain damage or cerebral palsy.
Although humans are designed for a baby to safely deliver from their mother and to withstand the force of labor, sometimes a baby is too large for its head to pass through the mother's pelvic bones. This can result in fetal trauma. Contractions can force the head against the hard pelvis if it's too big to pass through, and that could cause significant trauma and brain damage.
Most doctors (and mothers) would prefer a vaginal delivery over a cesarean section because a non-surgical delivery is generally safer under normal conditions. So, there are tools and techniques that a doctor might use to assist in getting the baby out and avoiding a C-section. For example, a forceps or vacuum extractor can be used to facilitate vaginal delivery.
However, these techniques can cause their own problems.
A forceps can cause a skull fracture or brain injury. An extractor, which is a rubber cup that's placed on the baby's head and tightened in order to “suck” out the baby, can cause a hemorrhage between the skull and scalp.
The effects of both fetal distress and trauma are preventable. Part of a doctor's role during labor and delivery is to detect distress early and prevent trauma. This might mean changing the labor strategy and performing an emergency C-section or taking other measures to keep the baby and the mother safe.
What to do after a birth injury in Illinois
If your baby was injured during pregnancy or birth, you should take these steps to protect your legal rights and seek medical treatment:
- Obtain medical treatment. If you suspect that your child was injured at birth, you'll want to seek the advice and treatment of a physician who specializes in these kinds of diagnoses. Your baby's primary care provider (pediatrician or family doctor) can likely make a referral to a specialist if that's necessary.
- Focus on your baby’s health. Your baby’s health should be your top priority. If it’s safe to do so, seek treatment for your child somewhere other than the hospital where the birth injury occurred.
- Keep records of any documents or other evidence related to your birth experience. When it’s safe to do so, write down everything you remember about the birth injury (witnesses, parties involved, conversations that occurred, etc.) This can include bills, prescriptions, receipts, and other items. Evidence might also include photos or video captured in the delivery room that demonstrates what happened, who was there, a medical provider's words or reactions, and other information that might be valuable to your case.
- Contact an attorney immediately. The doctor or hospital likely knows immediately if something went wrong during a birth. Once you’ve sought treatment for your child, contact an attorney who has experience handling Illinois birth injuries. Even if you’re unsure whether you need an attorney, it’s a good idea to meet with one. Most initial consultations are free and, because personal injury attorneys typically work on a contingency fee basis, they generally won’t take your case if they don’t think you can recover damages. The attorney needs to contact their legal counsel right away in order to preserve and request evidence like medical and personnel records, and anything else that might be important.
- Avoid speaking with the insurance company. Many healthcare facilities have invoked “I'm sorry” programs, which encourage doctors and hospitals to express sympathy or fault after a mistake happens. The psychology behind it is that if you feel that you've been treated with compassion and that you've received an apology, you might be less inclined to file a lawsuit. Then, their insurance company follows up with you and offers a settlement.While the settlement might sound like a lot of money, the CDC estimates that the lifetime cost of caring for a child with CP, for instance, is around $1 million. Depending on the severity of your child's injury, the settlement being offered might not even come close to being what you're entitled to in damages. Your attorney will communicate with the insurance company and negotiate a fair deal if that's how the claim can be settled.
The reason why this is so important is because your child might have lingering or even life-long effects from a serious birth injury. If your medical provider caused the injury, then you're entitled to recover damages.
What damages are available for a birth injury case?
In Illinois, damages for a birth injury can include costs for:
- Medical expenses, including surgeries, hospital visits, doctor visits, diagnostic tests, prescription medications, and other costs.
- Caretaking and nursing care
- Assistive devices and equipment, like wheelchairs, hearing aids, braces or orthotic devices
- Home modifications such as wheelchair ramps or door expansions and vehicle modifications
- Respite care
- Physical and occupational therapy
In Illinois, a plaintiff can only recover punitive damages in a medical malpractice claim if they can prove that the medical provider acted willfully, wantonly, maliciously, fraudulently, with bad faith, or with a conscious indifference to the potential consequences of their actions or inaction.
Because the injury was sustained by your child, the damages recovered are generally placed in a court-ordered trust. The trust will ensure that the funds are only used for the benefit of your child.
When Yong Juan Zhao gave birth to her son at a clinic in Southern Illinois, he suffered a brachial plexus injury.
Yong sued the obstetrician on behalf of her child. The court found that the obstetrician was negligent for failing to screen for macrosomia and failing to use the correct formula to estimate the baby’s weight. The court further found that had the doctor screened for macrosomia and properly estimated the baby’s weight, he would have performed a cesarean section and the child wouldn’t have developed brachial plexus.
During the trial, an expert neurologist testified that the child would require surgery in the future as well as ongoing occupational and physical therapy. What’s more, the child would never be able to use his right hand in most activities of daily living.
The court awarded the plaintiff $8.3 million, which included:
- $65,000 for past medical expenses
- $80,000 for future medical expenses
- $2.653 million in lost earnings
- $1.5 million for permanent disfigurement of his right arm
- $2 million for pain and suffering
- $2 million for deprivation of a normal life
Notably, the trial court calculated lost future earnings by multiplying the average salary in the area ($70,000) by the child’s estimated work-life expectancy (37.9 years).
What about damages in a wrongful death lawsuit?
Parents in a wrongful death lawsuit can generally recover the following damages:
- Medical expenses
- Funeral and burial costs
- Loss of society (loss of care, affection, guidance, and protection associated with the death)