Find out whether your healthcare professional’s mistake warrants a medical malpractice claim
One of the first lessons of parenthood is that there is a LOT you can't control. You begin to learn this lesson during the birth of your child when you're forced to rely on doctors and nurses to safely bring your newborn into the world.
But medical professionals are human and sometimes they make mistakes.
In this article we'll explore whether you have legal recourse in Texas if a medical professional makes a mistake at the worst possible time.
What is a birth injury?
Birth injuries are often confused with birth defects, but these are 2 different things:
- Birth injuries are the result of some action or inaction that occurs during labor and delivery. Birth injuries often give rise to litigation.
- 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, malformed heart, and down syndrome. Birth defects rarely give rise to litigation.
Here are some common birth injuries according to the Stanford Children's Health Hospital:
- 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
In addition to the common (and generally minor) birth injuries listed above, there are more serious birth injuries that are less common:
- Brain damage
- Respiratory problems
- Shoulder dystocia
- Cerebral palsy
When is a healthcare professional liable for a birth injury in Texas?
Some birth injuries aren't the result of carelessness on the part of your medical team but are instead the inevitable result of some necessary action. For example, your doctor may need to fracture your infant's clavicle to free the infant from the birth canal before more serious injuries are sustained.
In order to establish a medical malpractice claim based on a birth injury in Texas, 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 legal cause of your infant's injury.
In a medical malpractice case, the main focus of the lawsuit is generally on what the healthcare provider should have done in a specific set of circumstances. Lawyers for the plaintiff and defendant will attempt to persuade the judge or jury by presenting testimony from experts in the field.
Donna Morrell was in labor with her first child, Madeline, when she was admitted to Arlington Memorial Hospital.There were various complications throughout Donna's labor. Most concerning, Madeline's fetal heart rate was decreasing at a rate greater than 15 beats per minute.
Nevertheless, in the last hour of active labor, the doctor overseeing the delivery, Dr. Finke, left the room to deliver an infant across the hall. While Dr. Finke was gone, Madelinie's heart rate continued to drop. When Dr. Finke returned, she immediately proceeded with a vaginal forceps delivery that required a great deal of forceful pulling.
Madeline didn't start breathing upon delivery and had to spend a significant amount of time in the Neonatal Intensive Care Unit (NICT). Ultimately, Madeline failed to progress as a normal child. At the age of 3, Madeline was diagnosed with cerebral palsy and a severe intellectual disability.
Donna Morell sued Dr. Finke (and others), claiming that Dr. Finke was negligent for leaving the room during a problematic active labor to deliver another child.
The main issue at trial was whether the act of leaving the room was the legal cause of Madeline's health problems. The Texas court noted that "the plaintiff must establish a causal connection between the defendant's negligence and the injuries based upon a reasonable medical probability and not upon mere conjecture, speculation, or possibility."
The court heard from numerous experts on both sides.
After a 5-week trial, the jury returned a verdict in favor of Donna Morell and against Dr. Finke. The jury awarded Madeline $1.8 million in damages for future loss of earning capacity, $3.5 million for future medical care and therapy, $60,000 for past pain and mental anguish, $1 million for future pain and mental anguish, $250,000 for past physical impairment, $1 million for future physical impairment, $25,000 for past disfigurement, and $500,000 for future disfigurement.
The court denied Donna Morrell's claim for mental anguish, ruling that "bystanders" are precluded from recovering mental anguish damages in medical malpractice cases.
What damages are available in a Texas birth injury case?
A parent files a birth injury lawsuit on behalf of their injured infant. For that reason, the damages recovered belong to the infant and are generally placed in a trust. An infant in a birth injury case can recover the following damages:
- Medical expenses. Medical expenses in a birth injury case include the immediate expenses incurred to treat the injury, but also the costs of any future medical care that the child will need because of the injury.
- Lost wages. If the injury is severe enough that it will impact the infant's ability to work in the future, they can receive compensation for the lost wages.
- Pain and suffering and mental anguish. Though hard to put a price tag on, the infant can recover damages for the pain and suffering and the mental anguish associated with the injury.
Like a lot of states, Texas places a damage cap on the amount of non-economic damages that a plaintiff can recover. In Texas, non-economic damages (i.e., pain and suffering and emotional distress) are capped at $250,000 for claims against individual healthcare providers and $250,000 for claims against healthcare facilities (Note: these damage caps were passed after the Donna Morrell v. Mary Finke case was decided).
What about loss of consortium damages?
Loss of consortium refers to damages awarded to a family member of a person who has been seriously injured. The idea is that, because of the injury, the family member has been deprived of having the same relationship with the injured person that they would have otherwise had.
Though loss of consortium damages have historically been available to parents in Texas, the Texas Supreme Court ruled in 2003 that loss of consortium damages are NO LONGER available to parents whose child suffered non-fatal injuries.
In the case, Courtnie Williamson was placed on a respirator that wasn't functioning correctly after her birth. As a result, she didn't receive oxygen for several minutes. Additionally, the consulting pediatrician didn't administer sodium bicarbonate, as advised by another physician, for several hours.
The jury determined that the consulting pediatrician was 15% responsible for Courtnie's injuries and awarded damages to the Williamsons in the amount of $75,000 for loss of consortium.
The consulting pediatrician appealed and the Texas Supreme Court ruled that loss of consortium damages are NOT available to parents whose child suffered non-fatal injuries.
How long do I have to file a birth injury claim?
The term "statute of limitations" refers to the amount of time you have to file a lawsuit. If you don't file a lawsuit within this deadline, the defendant can dismiss your case and you'll be prohibited from recovering damages based on the claim.
In Texas, the statute of limitations for most medical malpractice claims (including birth injury lawsuits) is 2 years.
There are some important exceptions to the statute of limitations.
For instance, the clock to file a medical malpractice claim doesn't necessarily start ticking when the injury is sustained, but rather when the injury is discovered (or should have been discovered).
$10.3million
Lifetime care for a client injured at birth
Mateo Ramirez of Brownsville, Texas, was diagnosed with cerebral palsy. As an infant, he suffered severe injuries by suffocating on his mother's umbilical cord. After hearing the evidence we presented, the jury returned a verdict for $10.3 million for the child’s medical expenses over the course of his life. The Ramirez family is relieved that Mateo will be able to receive the vital medical care he needs. More about Attorney Laura Brown.
Do I need a birth injury lawyer?
Birth injury cases can be very complex. Typically, several medical experts are needed to testify as to whether the healthcare provider acted appropriately under the specific set of circumstances. What's more, expert witnesses may be needed to testify as to the appropriate amount of damages.
Fortunately, you don't need to tackle a birth injury lawsuit on your own. Find an experienced Texas personal injury attorney using our free online directory and schedule a consultation today.
Did you know that medical malpractice law varies by state?
How to find a personal injury lawyer
How do you know you've found the right attorney to take on your case? Where do you even begin your search? Enjuris spoke with personal injury attorneys in our directory to find out their recommendations for hiring the best lawyer. Read more
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