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.
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.
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:
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.
Head injuries are the most common birth-related injury.
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:
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.
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 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:
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.
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 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.
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.
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.
Overly forceful use of forceps can cause nerve or cord damage that results in paralysis or neurological problems.
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.
|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?
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.
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.
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:
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.