When Montana Birth Injuries Become Medical Malpractice

A Montana personal injury lawyer can help you recover costs from your baby’s birth injury

A birth injury can be a parent’s worst nightmare. Knowing what they are and what to do can help.

Learning that your child has suffered an injury at birth or during pregnancy can be a parent's worst nightmare. For many moms, pregnancy is a time when you're especially aware of eating right, keeping your body fit and healthy, and taking loving care of your growing and developing baby.

What happens in the delivery room can seem scary and outside your control.

If your doctor or hospital is responsible for something that went wrong during your child's birth, there are legal remedies to help you cover the costs of treatment or long-term care, or even for pain and suffering.

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What's a birth injury?

Birth injury is damage to your child before, during, or immediately after the birthing process. Birth trauma is suffered during delivery like broken bones or nerve damage. Minor injuries to the baby are common during the process of birth, and most of them resolve without treatment. Usually, a birth injury occurs because of the natural force and pressure of a delivery.

Years ago, doctors would use forceps (a surgical instrument with rounded edges used to grasp the baby's head) during a difficult delivery in order to avoid a Cesarean section, which is when the baby must be delivered surgically instead of vaginally.

Today, Cesarean sections are considered safer than they were years ago, and are therefore less risky than using forceps; forceps are only used in the final stages of delivery and they rarely cause harm that way.

Enjuris tip: Ultrasound technology is routine and included in most prenatal care. An ultrasound can give the doctor an estimate of the baby's weight prior to delivery, which allows the doctor to recommend a Cesarean section if the baby appears too large to be delivered, or if the baby is in a position that is not conducive to an injury-free birth.

Causes of birth injuries

There are several conditions that lead to difficult births, and medical intervention (such as Cesarean section, forceps delivery, or vacuum extraction) is often needed to birth a baby when any of these are present:

  • High birthweight (more than 8 pounds, 13 ounces)
  • Abnormal presentation, like breech (buttocks first) delivery
  • Prolonged labor
  • Prematurity, or babies born before 37 weeks gestation, because their bodies are fragile and easily injured
  • Cephalopelvic disproportion, which is when the mother's pelvis is not a size and shape to adequately birth the baby vaginally
  • Dystocia, or difficult labor or childbirth

There are other factors that can influence how childbirth and labor takes place, and every birth is different, even for the same mom with multiple children.

Common birth injuries

Head and brain injuries

Head injuries are the most common birth-related injury.

  • Head molding isn't technically considered an “injury.” Sometimes, pressure on the head during delivery results in a change in its shape because a newborn's skull bones aren't yet fixed into position. As the baby is pushed through the birth canal, the head elongates in order to allow them to pass through, but this molding—or reshaping—of the head doesn't affect the brain and the head should gradually reshape itself by the time the baby is a few days or weeks old.
  • Scalp swelling, bruising, or scratching is common and resolves on its own within the baby's first few days after birth. Even a fracture of one of the skull bones can usually heal on its own without treatment, unless it forms an indentation.
  • Cephalhematoma is bleeding outside the skull bones when the blood accumulates below the periosteum (fibers that cover the skull bone), similar to a bruise. Sometimes they get larger after birth. Usually, a cephalhematoma will resolve on its own without treatment. If it becomes red or drains liquid, you should consult your doctor.
  • A subgaleal hemorrhage occurs when there's bleeding directly under the scalp but above the periosteum that covers the skull bones. Unlike a cephalhematoma (where blood accumulates in one area), this blood can spread, and it could result in blood loss and shock. This condition sometimes requires a blood transfusion. In some situations, this happens because of forceps or a vacuum extractor, but other times it's the result of a blood clotting problem.
  • Brain bleed (intracranial hemorrhage) is when blood vessels rupture. This can be the result of a birth injury, or it could be from an illness that restricts delivery of blood or oxygen to the baby's brain, or a blood clotting problem.

Occasionally, a brain bleed can happen in a newborn who seems healthy after an uncomplicated delivery. It's more common in premature babies, and in those with a bleeding disorder like hemophilia.

There are several ways that a brain bleed can happen:

  • Subarachnoid hemorrhage: Bleeding below the innermost membrane that covers the brain, usually in full-term newborns.
  • Subdural hemorrhage: Bleeding between outer and inner layers of brain covering, which places increased pressure on the brain surface.
  • Epidural hematoma: Bleeding between the outer layer of tissue that covers the brain and the skull, which could be caused by a skull fracture.
  • Intraventricular hemorrhage: Bleeding into fluid-filled ventricles (spaces) in the brain.
  • Intraparenchymal hemorrhage: Bleeding in the brain tissue.

Symptoms of brain bleeds can include apnea (when the baby stops breathing for a period of time), seizures and lethargy.

Generally, intraventricular and intraparenchymal hemorrhages are in premature babies, and they're often because of an undeveloped brain, rather than a specific injury. Sometimes, there are no visible symptoms. When there's a larger hemorrhage, though, the baby might turn bluish gray, or their body might stop functioning normally. Babies with smaller hemorrhages usually survive without ongoing problems.

Facial paralysis

If you notice that there's no movement on one side of your baby's face when they cry, there could be facial paralysis. This could be because of pressure on the face during birth, or from forceps. If it's a bruised nerve, the paralysis should improve in a few weeks. If the nerve was torn, your baby might require surgery to repair it.

Cerebral palsy

Cerebral palsy is a condition that involves impaired muscle coordination and other disabilities. It can be hard to pinpoint the cause of a child's cerebral palsy because it can happen before, during, or after birth.

If your child has been diagnosed with cerebral palsy, it could be because of one of the following reasons:

  • Low birthweight
  • Premature birth
  • Multiple births (twins or triplets)
  • Assisted reproductive technology (i.e. infertility treatments)
  • Infections during pregnancy (including chicken pox, German measles, syphilis, Zika virus, herpes, toxoplasmosis, exposure to toxins, and others)
  • Rh blood type incompatibility between mother and child
  • Jaundice or kernicterus that is severe or long-lasting
  • Mother's medical conditions like thyroid problems, intellectual disabilities, or seizures
  • Birth complications like placenta detachment, uterine rupture, umbilical cord problems

In some circumstances, cerebral palsy is caused when there's a lack of oxygen to the baby's brain that's a result of difficult labor or delivery. Sometimes, these conditions occur because the laboring mother wasn't monitored closely enough by medical personnel.

If the doctor or hospital doesn't detect fetal distress during labor, or if it uses incorrect or inadequate birth techniques, the baby could experience a hypoxic episode, which is when there's inadequate blood flow to the brain.

Oxygen deprivation

Even mild oxygen deprivation can cause life-long physical and intellectual disabilities. This can happen because the doctor doesn't monitor the baby carefully enough during labor, or if the baby remains in the birth canal too long.

Brachial plexus

Brachial plexus injuries involve nerves from the upper spine to the neck, shoulder, arm, and hand. Sometimes, these injuries are temporary but they could also result in permanent disability. Injuries happen because nerves are torn or ruptured and don't heal properly.

Fractured collarbone

A difficult delivery can result in a fractured collarbone. In most cases, a baby's collar bone will heal itself, but sometimes treatment could include an immobilization brace.

Perinatal asphyxia

This is also insufficient oxygen, but it's related to oxygen in the bloodstream, not the brain. If blood flow is insufficient, a baby can appear pale, have difficulty breathing, have seizures, shock, or go into a coma.

Spinal cord injury

Overly forceful use of forceps can cause nerve or cord damage that results in paralysis or neurological problems.

When is a birth injury considered medical malpractice?

The fact that your baby has a birth injury doesn't necessarily mean that medical malpractice occurred. You might wish to consult a different doctor than the one who delivered your baby or monitored your pregnancy in order to confirm the diagnosis and try to determine the cause.

If your physician did do something wrong, they might be more likely to point to other factors than to find fault in the delivery process or pregnancy screening.

Medical malpractice can be considered if the doctor or hospital did something (or failed to do something) that resulted in your baby's injury.

Enjuris tip: The Medical Standard of Care is a legal concept that means the provider gave you the appropriate level of care under the circumstances. In Montana, the standard of care is of a reasonably competent general practitioner who acts the same or similar to the average practitioner in that community in the same or similar circumstances.

In other words, if your doctor's treatment was the same or similar to what would be expected of a doctor with equal training and experience, and if it's the treatment or procedure that would be accepted in your community for other patients experiencing a similar set of circumstances, then it would not be malpractice, regardless of the result.
Does the doctor in this scenario meet the appropriate standard of care?
At 39 weeks gestation, your baby is measuring 10 pounds, 4 ounces. Your doctor doesn't recommend a Cesarean section, and you deliver the baby at 41 weeks. By then, your little bundle is measuring 11 pounds, 14 ounces. Your delivery has complications because your pelvis isn't wide enough to deliver such a large baby. Your baby experiences significant injury during the delivery.

In the small city where you live, the standard procedure is for a baby to be delivered by Cesarean section if the estimated birthweight is more than 10 pounds. Also, the obstetricians in your city and hospital routinely deliver babies no later than 40 weeks gestation if they're that size.

Did the doctor meet the standard of care?

No. He didn't handle your pregnancy as another, similarly trained physician in your city and in your circumstances would have. If this case goes to trial, he might have specific reasons why he chose to let the pregnancy go to 41 weeks, and why he didn't think that a large baby required a Cesarean section. But if he doesn't have valid, medically accepted reasons, you might be able to win a medical malpractice claim.

Sometimes things move fast in the delivery room. What if the injury isn't the result of something the doctor did, but something they didn't do? For example, if you're in labor and your baby begins to show signs of distress, did the doctor do what needed to be done in the moment to ensure a safe delivery?

Doctors sometimes take calculated risks in dangerous situations. When is it a judgment, and when is it malpractice?
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It's a doctor's job to make tough judgment calls and react quickly, even if the action carries risk. They need to decide—sometimes in minutes or seconds—if the potential benefits outweigh the risks in a situation where the mom or baby is in distress. If injury happens in that scenario, but if the doctor acted in a way that was reasonable based on his skill and the community standard, it would not be considered malpractice.

What's the time limit for filing a birth injury lawsuit in Montana?

In Montana, you can file a birth injury lawsuit up to three years from the date of injury. In most cases, this would be your baby's birth date. If the injury isn't apparent at birth and is diagnosed later, you'd have three years from the date of diagnosis and up to five years from the date the injury occurred. An infant wrongful death claim must be filed within three years of the date of death.

When to call a personal injury lawyer for a birth injury

If your baby was injured during the birth process or during pregnancy, you might need to talk to a Montana personal injury lawyer to discuss whether medical malpractice occurred. Your lawyer will need to prove two major elements in your lawsuit:

  1. That the healthcare provider failed to exercise the degree of care and skill expected of a reasonable provider in the situation, and
  2. This failure was the direct cause of your baby's injury.

By gathering evidence from your medical records and consulting with experts, your lawyer can determine whether you have a medical malpractice case, or even a wrongful death lawsuit, if that was the outcome of the injury. Your lawyer will help guide you through filing a personal injury lawsuit, including what to expect and what your role in the process will be. 

Finding a personal injury lawyer

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How do you know you've found the right attorney to take on your case? Where do you even begin your search? Enjuris spoke with personal injury attorneys in our directory to find out their recommendations for hiring the best lawyer. Read more

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