When, where, and how to file a lawsuit after a birth injury
Nobody expects the first decision they make as a parent to be a legal decision, but this may be the case for parents whose children are injured during labor and delivery.
In this article, we'll take a look at birth injuries in Nebraska with the goal of giving you the information you need to make the right decision.
What is a birth injury?
The National Vital Statistics Report defines birth injury as "an impairment of the neonate's body function or structure due to an adverse event that occurred at birth." To put it more simply, a birth injury (sometimes called a "birth trauma") is simply an injury suffered by a child during labor and delivery.
Most birth injuries are minor, but severe birth injuries do happen. Let's take a look at some of the more common birth injuries.
Birth injury head trauma
Scratches, bruising, and even swelling of the head can occur due to the natural forces of labor and delivery (particularly when the child is large or "breech"). These injuries are generally minor and clear up within a few days.
What is head molding?
Head molding refers to the normal change in the shape of a baby's head that results from pressure on the head during labor and delivery. Molding doesn't affect the brain or cause any problems that require treatment. The head shape gradually becomes "normal" over several days.
In rare cases, bleeding in and around the brain can occur. The most common type of bleeding in and around the brain (subarachnoid hemorrhage) causes lethargy during the first few days of the child's life but generally has no long-term impact. Other types of bleeding in and around the brain can result in seizures, apnea, or even death.
In rarer cases, a child can suffer a traumatic brain injury at birth. Usually, traumatic brain injuries at birth occur as a result of external trauma to the head or oxygen deprivation during childbirth.
Birth injury paralysis
Injuries caused by overstretching during delivery are very rare, but they can result in permanent paralysis below the site of the injury.
Additionally, pressure on the child's face during birth may injure the facial nerve. This injury generally becomes apparent when the child cries and there is no movement on one side of their face. If the nerve was only bruised, the paralysis generally improves in a few weeks. If the nerve was torn, surgery may be necessary. Other nerves, including nerves in the arms, lower back, or legs, might be injured during delivery.
Birth injury bone fractures
Bones can be fractured during delivery. The most common fracture is a fracture of the collarbone, which may occur when there's trouble delivering the child's shoulder or during a breech delivery. A baby with a fractured collarbone rarely moves the arm on the side of the fracture after birth. Fortunately, healing usually occurs over a couple of weeks with no or limited treatment.
When can you recover damages for a birth injury?
Just because a birth injury occurs, doesn't mean you can automatically recover damages. In order to recover damages in Nebraska, a court needs to find that the healthcare professional was at fault for the injury. A healthcare professional is not considered at fault if the 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 Nebraska, you need to prove that:
- Your healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare provider in the same profession, and
- The failure was the cause of your infant's injury.
In other words, Nebraska 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
What damages can you recover for a birth injury in Nebraska?
An injured child can recover all the types of compensation that are typically available in a personal injury action, including:
- Physical pain and suffering
- Medical expenses (past and future)
- Lost wages
- Emotional distress
However, Nebraska places damage caps on the amount that a plaintiff can recover. Specifically, Nebraska limits the total damages award to $2.25 million (for malpractice that occurred after December 31, 2014).
How long do you have to file a birth injury lawsuit in Nebraska?
Nebraska requires plaintiffs to file lawsuits within a certain time period following the injury. This time period is called the "statute of limitations." If a plaintiff fails to file a lawsuit within the applicable statute of limitations, they will be permanently barred from filing a lawsuit.
For medical malpractice lawsuits, Nebraska Revised Statutes 44-2828 gives plaintiffs 2 years from the date the medical error occurred or 1 year from the date the injury is discovered to file a lawsuit.
However, if the plaintiff was under the age of 21 at the time of the alleged malpractice (which would be the case in a birth injury lawsuit), Nebraska Revised Statute 25-213 tolls or pauses the clock until the plaintiff turns 21.
In other words, the statute of limitations doesn't begin to run until the child turns 20 years old.
Let's look at an example:
On January 1, 2020, at a hospital in Lincoln, Nebraska, doctors and nurses missed signs on the fetal heart monitor indicating a prolonged deceleration of the baby's heart rate caused by the baby's umbilical cord being compressed. As a result, the baby suffered permanent cognitive impairments that could have been avoided. The full extent of these cognitive impairments was realized when the baby turned 2 years old.
The 2-year statute of limitations would begin to run when the child turns 20 (January 1, 2040), so the child would have until January 1, 2042, to file a lawsuit.
How do you file a birth injury lawsuit in Nebraska?
Filing a birth injury lawsuit in Nebraska isn't as straightforward as filing most other personal injury lawsuits.
Before a plaintiff can file a birth injury lawsuit (or any other medical malpractice lawsuit), the plaintiff must present their complaint to a medical review panel, which consists of 1 lawyer and 3 physicians.
The panel will consider all relevant evidence, including medical records and depositions of witnesses, and make a decision within 30 days as to whether or not the evidence indicates that the health care provider failed to treat the patient in accordance with the appropriate medical standard of care.
If the plaintiff decides to continue with the lawsuit after receiving the panel's report, the report, though not binding, will be admissible as evidence in court.