Learn about your legal options when your child is injured during labor and delivery
Parenting can be extremely stressful. Unfortunately for some parents, this stress begins at birth.
According to the National Institutes of Health (NIH), roughly 2 out of every 1,000 children suffer an injury at birth (sometimes called a "birth trauma").
Parents of children who suffer birth injuries have legal options. But before you file a lawsuit, it's important to understand the difference between a birth injury and a birth defect, the proof necessary to establish a successful claim, and the amount of time you have to file a lawsuit.
Let's take a closer look at birth injuries in Pennsylvania.
What is a birth injury?
A birth injury is an injury that occurs during labor and delivery. A birth injury can be sustained by a mother or a child, but the term is generally used to describe an injury to a child.
In order to fully understand birth injuries, it's important to know the difference between a birth injury and a birth defect.
- Birth injuries are the result of some action or inaction that occurs during labor and delivery.
- Birth defects result from a problem that occurs when your baby is developing in the womb. Birth defects are generally the result of genetics, behavior, or environmental conditions. Common examples include a missing limb, a malformed heart, and Down syndrome.
Common 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
- Injury to the group of nerves that supply the arms and hands
- Fracture of the clavicle or collarbone
When is a healthcare professional liable for a birth injury in Pennsylvania?
A birth injury claim is a type of medical malpractice claim. Accordingly, to establish that a healthcare professional is liable for a birth injury, 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.
To put it another way:
It's not enough to prove that your child was injured during labor and delivery (after all, some injuries are inevitable or necessary to prevent more serious injuries). To establish liability, you need to prove that your healthcare provider did something that a reasonable healthcare professional would not have done.
Laura's child was born with cerebral palsy.
Laura filed a lawsuit on behalf of her child in Lackawanna County. Laura's lawyer successfully argued that Dr. Behlke failed to exercise the degree of care and skill expected of a reasonable healthcare provider when he took 2 hours to get to the hospital and attempted to induce labor rather than perform an emergency cesarean section. Laura's lawyers were also able to establish that it was Dr. Behlke's actions (or inactions) that caused the child's cerebral palsy.
The court issued a plaintiff's verdict for $20.5 million.
How do I prove a birth injury?
The main focus of birth injury cases is generally on what the healthcare provider should have done in a specific set of circumstances.
Because jurors don't usually have medical degrees, plaintiffs in Pennsylvania birth injury cases are required by law to present testimony from at least 1 expert witness to establish the applicable standard of care, the deviation from that standard, causation, and the extent of the birth injury.
What damages are available in a Pennsylvania birth injury case?
Birth injury lawsuits are generally filed by the parent on behalf of the injured child. As a result, when damages are awarded, they're typically placed in a trust to prevent the parent from spending the money on someone other than the child.
The Pennsylvania Medical Care Availability and Reduction of Error Act (MCARE) allows plaintiffs in birth injury lawsuits to recover both 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, embarrassment and humiliation, loss of ability to enjoy the pleasures of life, and disfigurement.
Economic damages are established by medical bills and expert witnesses who testify as to future expenses.
Non-economic damages are more subjective and harder to calculate. In determining the appropriate amount of non-economic damages to award, Pennsylvania jurors are required to consider:
- The age of the plaintiff
- The severity of the injuries
- Whether the injuries are temporary or permanent
- The extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living
- The duration and nature of the medical treatment
- The duration and extent of the physical pain and mental anguish that the plaintiff will experience in the future
- The nature of the disfigurement (if any) and the consequences for the child
Christina's child suffered a number of injuries stemming from the use of forceps, including multiple skull fractures, pervasive bleeding in the brain, and severe destruction to the cerebellum and brainstem. Experts testified that the injured child "has and will continue to have significant deficits in social, emotional, motor, and cognitive function over his lifetime" and that he will require ongoing care and support with little hope for improvement.
The jury ultimate awarded Christina's child the following damages:
- $5 million for pain and suffering, loss of life's pleasures, humiliation, and disfigurement,
- $2.7 million for loss of earning capacity
- $32.2 million for current and future medical expenses
Statute of limitations - how long do I have to file a birth injury claim?
There's a limit to the amount of time you have to file a lawsuit. This time limit (called the statute of limitations) varies by state and type of case.
There are 2 primary reasons for limiting the amount of time you have to file a lawsuit:
- It's not fair to threaten a defendant with a lawsuit indefinitely, and
- Lawsuits should be filed while the evidence is fresh and witnesses can still be located.
In Pennsylvania, the statute of limitations for medical malpractice cases is 2 years. However, if the injured person is under the age of 18 at the time of the incident that causes the injury, the 2-year clock won't start running until the person turns 18.
In other words:
If the lawsuit is not filed before the child turns 20, the court will refuse to hear the case and the right to compensation will be lost forever.
What steps should you take following a birth injury?
The moments following a birth injury can be chaotic and overwhelming, but there are some simple steps you should take:
- Take care of your child. Your child is vulnerable after a birth injury and it's important that you do everything you can to improve their prognosis. It's a good idea to avoid seeking treatment from the same doctor who you believe is responsible for the injury, but only if it's safe to do so.
- Keep good records. It's never too early to start keeping track of all the expenses related to the birth injury. Keeping good records helps ensure you receive the damages you deserve. Consider using our expenses/damages worksheet and pain journal form to stay organized.
- Reach out to an attorney. Once your child is safe, reach out to an attorney who has experience handling birth injury cases. Most initial consultations are free, so it's a good idea to show up prepared so you can get the most out of the appointment.