Learn when you can file a medical malpractice lawsuit based on a birth injury in the Sooner State
Your child's life was not supposed to turn out this way. Your doctor didn't find any problems in the screenings, tests, or imaging techniques administered during your pregnancy.
But something went wrong.
Approximately 7 out of every 1,000 infants born in the United States suffer birth injuries, according to the National Healthcare Quality and Disparities Report.
In this article, we'll take a look at birth injuries in Oklahoma, including birth injury liability, how long you have to file a lawsuit, and what damages may be available in a birth-related medical malpractice case.
What is a birth injury?
A “birth injury” occurs when a child suffers physical harm during the birth process.
Birth injuries are different from birth defects. A birth injury is the result of some action or inaction that occurs during labor and delivery, whereas a birth defect occurs when your baby is developing in the womb.
Most birth injuries are relatively minor and typically caused by the natural forces of labor and delivery. Relatively minor birth injuries include:
- Swelling or bruising of the head
- Bleeding underneath one of the cranial bones
- Breakage of small blood vessels in the eyes
- Facial nerve injury (usually caused by pressure on the baby's face)
- Injury to the group of nerves that supplies the arms and hands
- Fracture of the clavicle or collarbone
- Scalp scratches
However, birth injuries can be life-changing. Serious birth injuries are often the result of oxygen deprivation to the baby's brain and include:
- Brain damage (TBI)
- Cerebral palsy
- Respiratory problems
- Shoulder dystocia
What are the long term effects of oxygen deprivation on a child's brain?
Birth asphyxia occurs when a baby's brain doesn't receive enough oxygen during or just after birth. The amount of harm caused by asphyxia depends on:
- How long the baby goes without enough oxygen,
- How low the level of oxygen is, and
- How quickly the right treatment is given.
Babies with mild or moderate asphyxia may recover fully. However, if the baby's brain went without oxygen for a long period of time, the baby will likely have a permanent injury to their brain, heart, lungs, kidneys, or bowels.
When is a healthcare professional liable for a birth injury in Oklahoma?
Healthcare professionals are not liable for every birth injury that occurs.
Some birth injuries are unavoidable. For example, swelling and bruising may occur around a baby's eyes and face during a head-first delivery. Other birth injuries are necessary to avoid greater harm. For example, a doctor may fracture a baby's clavicle to free the baby from the birth canal before the baby suffocates.
In order to establish a medical malpractice claim based on a birth injury in Oklahoma, 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, the law acknowledges that there are certain standards a healthcare professional should be held to. If a healthcare professional delivers care that falls below these standards, the healthcare professional will be liable if an injury occurs as a result.
Birth injury cases almost always include several expert medical witnesses who testify as to what the appropriate medical standard of care is under the circumstances, and whether the healthcare professional met those standards.
Oklahoma used to require plaintiffs to file an “affidavit of merit” in which the plaintiff swore under oath that a qualified expert had been retained and had reviewed the allegations in the lawsuit. However, in 2013 the Oklahoma Supreme Court struck down the affidavit requirement as unconstitutional.
Examples of medical malpractice 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
How long do you have to file a lawsuit based on a birth injury in Oklahoma?
Every state has something called a “statute of limitations.”
The statute of limitations determines how long you have to file a lawsuit. It's important to know the statute of limitations in your state because your case will be dismissed if you fail to file a lawsuit within the allotted period of time. What's more, you will be permanently barred from filing the lawsuit again.
In Oklahoma, a parent or guardian can file a lawsuit on behalf of their injured child up to 7 years from the date of the injury.
There are, however, several factors that might change the statute of limitations for a birth injury. For example, in some cases, the statute of limitations won't start running until the symptoms of the birth injury appear (which may be weeks, months, or even years after the injury).
Because the exact deadline to file your lawsuit is not always clear, it's best to meet with an Oklahoma attorney as soon as possible to make sure you don't miss out on filing a lawsuit.
What damages are available in an Oklahoma birth injury case?
In Oklahoma, you can receive economic and non-economic damages in an Oklahoma birth injury case:
- Economic damages are the objectively measurably monetary losses that stem from the injury. Economic damages include medical expenses and lost wages.
- Non-economic damages are the subjective non-monetary losses that stem from the injury. Noneconomic damages include pain and suffering.
Oklahoma is one of the few states that doesn't place any damage caps on the amount of damages you can recover in a medical malpractice case.
Choosing the right birth injury lawyer
When you're trying to get your child the financial resources they need and deserve, you don't want to just hire any lawyer off the street. Birth injury claims are highly specialized. It's important to hire an attorney in your area who has the knowledge to investigate birth injuries, negotiate with medical malpractice insurance companies, and take your case to trial if necessary.
How do you know which attorney is right for your case?
Fortunately, most attorneys offer free initial consultations. An initial consultation is your chance to interview an attorney and find out whether the attorney is right for you. Not sure where to start? Here are some resources to help you make the most of your initial consultation: