Find out what steps you should take if your child is injured at birth
According to the Centers for Disease Control and Prevention (CDC), there are more than 130,000 births every year in Ohio. While the vast majority of these births go according to plan, mistakes do happen.
If a healthcare professional's mistake causes an injury to your child during labor and delivery, you may be able to file a birth injury lawsuit on your child's behalf.
Let's take a closer look.
Birth injury or birth defect?
Birth injuries are injuries that occur during the process of labor and delivery. Birth injuries may be unavoidable but are often the result of a healthcare professional's negligence. In the latter case, you may be able to sue the healthcare professional for damages.
On the other hand, birth defects are structural changes that occur while your baby is developing in the womb. Birth defects are generally the result of genetics, behavior, or environmental conditions, and rarely give rise to litigation.
Here are some common examples of birth injuries and birth defects:
|Birth injuries||Birth defects|
|Cerebral palsy||Cleft lip|
|Shoulder dystocia||Congenital heart defects|
|Bruising or forceps marks||Muscular dystrophy|
|Caput succedaneum||Spina bifida|
|Facial paralysis||Down syndrome|
When is a healthcare professional liable for a birth injury in Ohio?
Although it may be devastating, you can't successfully file a lawsuit just because your child suffered a birth injury. To establish liability, 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 healthcare provider's failure was the cause of your newborn's injury.
Who can be sued in a birth injury case?
The defendant in a birth injury lawsuit can be any licensed healthcare professional (including a doctor, nurse, or physician assistant), a healthcare facility, or a medical device manufacturer (in the case of an injury caused by a defective product).
As a practical matter, plaintiffs generally file birth injury lawsuits against the responsible healthcare provider and the hospital that employs the healthcare provider.
The hospital may be held liable for the negligent acts of its employee under the doctrine of respondeat superior. This doctrine gives plaintiffs a better chance at actually recovering damages because hospitals tend to have lots of assets and are heavily insured.
How to prove your birth injury claim in Ohio
To establish that your healthcare provider failed to exercise the appropriate degree of care and skill, experienced birth injury attorneys should consult with and present the testimony of medical experts.
The Affidavit of Merit is a statement from a licensed healthcare professional declaring that they:
- Have reviewed all records available to the plaintiff,
- Are familiar with the medical standard of care that applies to the plaintiff's treatment,
- Believe the standard of care was not met, and
- Believe the plaintiff was injured as a result.
If a birth injury complaint is unaccompanied by an Affidavit of Merit, the case may be dismissed.
The defendant in a birth injury lawsuit will consult with and present their own medical experts. In the end, the judge or jury will have to decide who to believe based on the evidence presented.
What damages are available in an Ohio birth injury case?
In Ohio, plaintiffs can recover economic and non-economic damages:
- Economic damages are the monetary losses caused by the birth injury. Economic damages include current and future medical expenses, as well as lost earning capacity.
- Non-economic damages are the non-monetary losses caused by the birth injury. Non-economic damages include pain and suffering, mental anguish, loss of ability to enjoy the pleasures of life, disfigurement, and any other intangible loss.
Unfortunately, Ohio places a damages cap on the amount of non-economic damages a plaintiff can recover in a birth injury case. Specifically, Ohio Revised Code Section 2323.43 limits the amount of non-economic damages to $250,000, or 3 times the plaintiff's economic damages (whichever is greater) with an overall maximum of $350,000.
The non-economic damages cap is extended to $500,000 if the child suffered certain permanent or catastrophic injuries.
Statute of limitations - how long do you have to file your claim?
The statute of limitations specifies the amount of time a plaintiff has to file a lawsuit. If the plaintiff fails to file a lawsuit within the time period specified in the statute of limitations, the lawsuit is forever barred.
The time a plaintiff has to file a lawsuit varies depending on the type of case.
In Ohio, medical malpractice cases must be filed within 1 year after the incident giving rise to the lawsuit. However, if the injury is sustained by a minor (as is the case with birth injuries), the 1-year statute of limitations doesn't start to run until the minor turns 18.
In other words:
With that being said, it's never a good idea to wait almost 2 decades to file a lawsuit. If you wait too long, witnesses may die, memories may fade, and evidence may be lost.
Finding the right birth injury attorney
Birth injury law is a niche area of law. Attorneys who have experience litigating birth injury cases understand how to review complex medical documents, calculate future damages, negotiate with insurance companies, retain medical experts to testify, depose medical experts hired by the defendant, and explain complex medical conditions to judges and juries.
The bottom line:
It's a good idea to hire an attorney who has experience litigating birth injury cases. Here are some resources to help make sure you hire the right attorney for your case: