A birth injury lawsuit is based on the principles of medical malpractice
When all you want to do is cuddle your new baby (and maybe take a nap or a hot shower), but lingering effects from birth trauma are weighing heavily on your mind, what do you do next?
The USDA has estimated that the cost of raising a child (born around 2015) is usually close to $300,000 for most middle-income families. This includes inflation but doesn't include any unforeseen, additional costs…like raising a child with special needs or medical conditions.
While there are plenty of emotional and health concerns around a child who has a birth injury, there are also financial considerations.
If your child's birth injury is the result of medical malpractice, you might have a legal claim and could be eligible to recover costs associated with the injury.
What is a birth injury?
A birth injury is a damage that happened as a result of pressure or distress during the process of labor and delivery. Many newborns experience minor injuries like bruising, and they usually heal without treatment. But some newborns suffer trauma that leads to nerve damage or broken bones.
Often, a doctor will recommend a cesarean section (commonly called a C-section) when the baby is estimated to weigh more than 11 pounds, if the baby weighs more than 10 pounds and the mother has diabetes, or if the baby is in an abnormal position before birth (for example, "breech," which is feet first or if the baby is shoulder first).
Years ago, C-sections were considered risky for both mother and baby. Therefore, doctors would attempt to maneuver babies by using forceps around the baby's head and babies would be injured by the force of bringing the fetus down from high in the birth canal.
However, changes in prenatal diagnostics through the use of an ultrasound and other technologies have reduced the rates of birth injuries. Forceps are commonly only used in the final stages of delivery and rarely cause an injury. Today, it's common for a doctor to perform a C-section if they anticipate a risk of birth injury.
Common causes of birth injuries
The 2 most common causes of birth injuries are:
- Forceps or vacuum-assisted delivery, when a doctor uses too much force or pressure applying the instrument to the baby's head or damages other nerves.
- Delayed delivery or prolonged labor, which can happen if a doctor fails to correctly monitor fetal distress. The baby could suffer from a lack of oxygen that results in permanent disabilities or death.
Difference between a birth defect and birth injury
A birth defect is a condition or illness that's linked to the parents' genetics. Usually, a birth defect is no fault of the mother, doctor, or anyone else and is not preventable. Occasionally, a birth defect could be linked to a medication the mother used while pregnant or exposure to another toxic substance.
Some common birth defects are:
- Sickle-cell disease
- Club foot
- Congenital heart defects
- Down syndrome or other chromosomal abnormalities
- Cleft lip or cleft palate
- Spina bifida
A birth injury is the result of something that went wrong during labor and delivery. These are examples of birth injuries:
- Dislocated joints
- Cranial trauma (head trauma) or skull fractures
- Broken clavicle (collarbone) or shoulder dystocia
- Erb's palsy, or permanent nerve damage to upper arms
- Brachial plexus, or injury to the upper arm
- Brain damage or cerebral palsy caused by a lack of oxygen
A birth injury can also affect the mother. For example, women can suffer birth-related complications if a doctor fails to control excessive blood loss post-delivery, or fails to detect high blood pressure prior to delivery (preeclampsia) which results in a seizure.
The wrongful birth lawsuit was based on the fact that because medical professionals failed to inform the parents of the baby's condition, they did not have the option to terminate the pregnancy. These types of lawsuits are sometimes filed by parents of babies born with severe disabilities, but these lawsuits are unusual and controversial. Some states do not allow wrongful birth lawsuits.
The parents sued the doctor and hospital for "wrongful birth." The verdict, issued in 2019, found that the hospital and 1 doctor were 65% responsible, and the radiologist and a 2nd doctor were 35% liable. The family was awarded $14.5 million, which included $11.6 million for medical expenses and services, custodial and attendant care, equipment and adaptive housing.
The mother was awarded $1.6 million for emotional distress and the father was awarded $1.2 million.
Iowa medical malpractice laws
A medical malpractice lawsuit is filed by an injured person (or the parent of a minor, or the surviving family of a person who is deceased) against a medical provider, claiming that the provider made negligent mistakes during medical treatment that resulted in damage or injury.
A medical professional's standard of care is the reasonable approach, practice, or procedure for a particular medical situation. Reasonableness is determined by what's common and accepted in the local medical community. That means the standard of care might be different depending on where the treatment was provided. A physician or other medical professional has breached the standard of care if they failed to provide treatment consistent with the local standard.
In addition to breaching the standard of care, an injured plaintiff can make a claim that:
- The provider didn't use their best judgment in determining treatment or care, or
- The provider failed to use reasonable care and diligence to apply their knowledge and skill to the patient's treatment.
In 2017, the Iowa state legislature changed some medical malpractice laws. These changes include:
- Certificate of Merit requirement. A plaintiff is required to file a Certificate of Merit, which puts the healthcare provider on notice that they're being sued and that there's a belief that their actions weren't up to the standard of care. This certificate must show that the provider was negligent and is presented before discovery.
- Expert witness criteria. Each expert witness must work actively for a minimum of 5 consecutive years and participate in academia in the same field as the defendant. A witness may testify about the specific case or evidence, and they can compare what actually happened to what should have happened but they are not permitted to refer to any other case.
Proving an Iowa medical malpractice claim
In order to successfully recover damages for an Iowa malpractice claim, the plaintiff must prove:
- They had a relationship with the doctor or provider at the time of the injury.
- The physician or provider did not perform their duties according to a normal and expected standard of care.
- The medical professional was negligent and that in the same circumstance, another professional would have acted differently.
- Their injuries are the result of the doctor or provider's negligent actions.
- The injuries cost money, either for medical treatment, caretaking, lost wages, pain and suffering, or other related expenses.
Statute of limitations for an Iowa medical malpractice claim
The statute of limitations is the amount of time you have in which to file a lawsuit. If you miss the time period, you could lose the ability to file a claim.
Statutes of limitations can be a little different when the injured person is a child. If a child was younger than 8 years old when the injury happened, they have until their 10th birthday to file a medical malpractice lawsuit.
Damages in an Iowa birth injury lawsuit
The amount of damages you can recover in any personal injury lawsuit is usually related to the severity of your injuries because often a severe injury results in a higher amount of costs and expenses than one that's less serious.
You can generally recover economic and non-economic damages.
Economic damages are items that have a specific cost, including:
- Medical treatment, past and future. This could include surgeries, hospital stays, doctor visits, prescription medications, testing, and any other related expenses.
- Assistive devices and therapies. If your child will require a wheelchair, prosthetic, hearing aid, or other devices related to their birth injury, that would be included as a compensable expense. Damages also include costs for physical, occupational, or other ongoing therapies.
- Lost wages and earning capacity. If your child's birth injury resulted in a disability that would prevent them from earning money as an adult, that's compensable, too. Your lawyer will work with financial experts who can assess how much your child is owed if they're not able to earn a living on their own. In addition, you might need to adjust your own capacity to work outside the home if you need to care for a child with a disability. Costs related to your child's care or your own lost wages could also be compensable.
- Funeral and burial expenses can be claimed as damages if your child died as a result of their birth injury.
How much does a birth injury cost?
The CDC relies on the Morbidity and Mortality Weekly Report (MMWR) as a guide to information regarding economic costs associated with certain injuries. The MMWR estimates that a person with cerebral palsy could pay $11.5 billion over the course of their lifetime. (source)
|Type of cost||Estimated cost||Items included in the estimate|
|Indirect costs||$9.241 billion||Productivity loss from inability to work, limited work capability, and premature mortality|
|Direct medical costs||$1.175 billion||Physician visits, prescription medications, hospital stays, assistive devices, therapies, rehabilitation, long-term care|
|Direct non-medical costs||$1.054 billion||Special education, home and automobile modifications|
Non-economic damages are equally important, but they don't always have a specific financial value. These include:
- Pain and suffering, both your own and your child's
- Loss of consortium, which can apply to the loss of companionship, love, and affection of your child
- Punitive damages, if the medical professional's actions were malicious
- Emotional distress, suffering, or other psychological impacts as a result of the injury
- Loss of quality of life
What to do if your child was injured at birth
There are 2 ways you might become aware that your child has a birth injury. It's possible that you're aware that you had a traumatic and damaging birth, and that your child suffered an immediate obvious injury. Or, you might begin to see developmental issues over time that seem to suggest that something isn't quite right.
Especially if the damage is neurological, a birth injury could be detected when your baby begins to miss developmental milestones or doesn't seem to be physically developing in a typical way.
If that's the case, you need to get a diagnosis from an expert. You can start with your child's own pediatrician — they'll be the best person to know if your child is meeting milestones or has delays. If delays or other health concerns are suspected, they will probably refer you to a specialist like a developmental pediatrician or other physician based on your child's specific needs.
The second most important aspect of a birth injury claim is to contact an attorney who specializes in that area of law. Once you've determined that there's a possibility of a birth injury, it's crucial to call a lawyer because your lawyer will move quickly to make sure that the doctor or hospital's records regarding your claim will be preserved.