Birth Injury Lawsuit
Your child’s birth should have been one of the best days of your life. It was certainly an unforgettable experience — but not in the way you anticipated. What should be positive memories are largely bittersweet; incompetence at your selected hospital or birth center resulted in trauma for both you and your child. Now, you’re struggling to cover medical bills while also securing justice. Both goals can be accomplished by filing a successful birth injury lawsuit.
What Is a Birth Injury?
A birth injury involves any injury that occurs immediately prior to, during, or shortly after childbirth. Some birth injuries prompt temporary suffering but do not impact the child on a long-term basis. Many, however, cause permanent damage, leading to years — even decades — of pain and suffering.
Examples of common birth injuries include:
- Erb’s palsy and other brachial plexus injuries
- Cerebral palsy
- Meconium aspiration syndrome
- Bone fractures
- Severe bruising
What Was the Cause of My Child’s Birth Injury?
Some birth injuries are caused by natural and unavoidable circumstances. For example, a large fetus or a small birth canal could increase the potential for injury. Genetic mutations are sometimes to blame for defects. Gestational diabetes, anemia, preeclampsia, or other maternal health issues could also lead to injuries.
While the circumstances highlighted above can prompt issues during childbirth, external factors beyond the health of the mother or genetic happenstance often play a role. Many injuries result from trauma to the child during birth. This is particularly common in difficult births involving pressure from forceps or from the mother’s pelvis. Newborns may suffer bruising of the head and face, fractured clavicles, or brachial plexus injuries involving the nerves located between the neck and the hand.
Although unavoidable circumstances can contribute to these forms of physical trauma, such injuries are often preventable.
If significant distress occurs during childbirth, meconium aspiration syndrome may occur. This serious condition involves the release of meconium (early infant stool), which may mix with amniotic fluid. In severe cases, meconium enters the airway or lungs, potentially leading to pneumonia or other deadly health concerns.
If an injury occurs shortly after childbirth, it may still be referred to as a birth injury. Postpartum injuries may occur due to the medical staff’s failure to diagnose or treat complications such as fetal distress or meconium aspiration syndrome. Newborns in distress must be monitored closely to ensure optimal care; unfortunately, insufficient monitoring often occurs.
Could My Child’s Birth Injury Have Been Prevented?
Many birth injuries are preventable. While parents play a critical role in prevention by engaging in healthy behaviors for the duration of the pregnancy, preventative measures are just as critical among medical staff during childbirth. One wrong move can lead to a lifetime of suffering for both parents and children.
Health care workers’ responsibility for preventing birth injury begins with basic prenatal care. General care practitioners and obstetricians should monitor expectant mothers (especially those identified as having high-risk pregnancies) carefully. They should identify and promptly respond to risk factors that may later lead to fetal distress.
Many preventable birth injuries occur due to use of excessive force (particularly with a forceps) or failure to order a Caesarean section when medically necessary. Often, these issues are prompted by a previous failure to diagnose cephalo-pelvic disproportion.
If your medical team failed to diagnose or follow up on potential causes for concern, they may be partially responsible for the difficulties you faced during childbirth — and your child’s ensuing birth injury.
Why File a Birth Injury Lawsuit?
As the victim of a birth injury, your child faces years of suffering. Not only could your child’s injury prompt considerable pain in years to come, it may limit mobility, making it difficult to complete everyday functions. These limitations can prove emotionally distressing for growing children. As a parent, you’ll also suffer — both emotionally as you watch your child struggle, and financially as you attempt to cover mounting physical therapy and rehabilitation bills. A birth injury lawsuit can ease some of this financial burden as you focus on caring for your child.
Many parents take solace in delivering justice where it’s due. By initiating birth injury lawsuits, they hold negligent medical professionals accountable for their problematic conduct. Over time, this can have a preventative effect; each lawsuit raises awareness, prompting greater diligence in healthcare settings while also warning fellow parents of the risks they and their unborn children face.
The following are just a few of the many reasons why parents choose to initiate childbirth injury lawsuits:
- A desire for justice, which in turn prompts peace of mind among parents in distress.
- A successfully concluded birth injury lawsuit can provide parents with a valuable sense of closure.
- Serving the public good. Your efforts will alert others to the potential for childbirth injuries, and could even prevent future tragedies.
- Birth injury lawsuits can lead to license loss among grossly negligent healthcare professionals.
- By securing damages, you can cover not only previous expenses arising from your child’s injury but also future rehabilitative efforts. Equipped with such funding, you’ll be more likely to seek out the prompt care your child requires, thereby alleviating future suffering.
Is a Birth Injury Lawsuit Worth It?
Many parents understand that legal action is an option following a birth injury — but they’re worried about the time and effort it takes to launch birth injury compensation claims. This is a valid concern; courtroom proceedings can drag on for years. Court cases can have an emotional toll on parents already struggling to provide the attentive care for their injured children so desperately need. Still, most would argue that legal action is worthwhile. Not only can victorious parents emerge with desperately needed funding for ongoing rehabilitative care, they enjoy the peace of mind that can only occur when justice has been delivered.
The good news? It’s possible to achieve the benefits of a birth injury lawsuit without spending ages in court. Many cases end in a settlement. If your case is settled out of court, you could be spared much of the stress and anxiety typically associated with birth injury malpractice proceedings
Life Care Plans
Individuals with chronic injuries often require life care plans, which identify their future medical needs — and how those needs can best be met.
In birth injury lawsuits that go to trial, life care plans are presented to the jury to demonstrate the extent of assistance the affected child will need not only in the immediate future but also in years and decades to come. An effective life care plan will show that, while the injured child can complete some functions, he or she still needs considerable assistance to live comfortably.
Factors taken into account in life care plans may include:
- The cost of ongoing medical treatment, including physical therapy, medications, or even surgery
- Occupational or speech therapy
- Adaptive equipment
- Household modifications such as ramp installation
Several experts may be called upon to contribute to life care plans. Together, these individuals determine what the child will require to lead a healthy and comfortable lifestyle. Additionally, the assembled group of experts considers the potential for inflation.
What to Expect in a Birth Injury Lawsuit
No two birth injury lawsuits look exactly alike, but most follow a general pattern. It all begins with a legal consultation, in which you determine your potential for obtaining damages for your child’s suffering.
If you choose to take legal action, your lawyer will need to gather extensive evidence to prove that the allegedly negligent individual demonstrated a breach of a duty of care — and that said breach was directly responsible for your child’s injury. Early in the legal process, you may be required to submit a certificate of merit or other affidavit involving feedback from another medical professional.
Talk of settlement may arise early on, but typically plaintiffs and defendants proceed with the discovery phase. During this time, both sides submit requests for disclosure. Specific questions about the case may be submitted in interrogatories. Witness depositions may provide additional insight into the circumstances surrounding the alleged negligence. Additional feedback may be required from expert witnesses who share the same specialty as the defendant.
Serious talk of settlement begins following expert witness depositions. Few birth injury lawsuits reach court. Because so many malpractice claims are rejected, it often behooves plaintiffs to pursue a prompt settlement. If settlement negotiations prove unsuccessful, parties may arrange for mediation or arbitration — or the case may go to trial.
In court, both sides present evidence uncovered during the discovery phase. Expert witnesses may testify before the jury, which ultimately decides whether negligence occurred and whether it resulted in your child’s injury.
When Should I Start My Birth Injury Lawsuit?
The sooner you obtain medical and legal feedback, the better. Beyond this, however, the ideal date for filing depends on where the malpractice occurred. Strict statutes of limitations may prevent you from filing after a certain date. Depending on the state of filing, you may be required to provide an affidavit from a qualified healthcare professional.
Seek medical attention before you file your birth injury lawsuit. You need accurate feedback from a health care worker who can determine the extent of the injury and whether it could have reasonably been caused by negligence. Additionally, you’ll need to obtain proof of the negligent individual’s duty of care — and the breach of his or her duty of care responsible for your child’s current suffering.
Duty of Care
It is every healthcare professional’s obligation to adhere to a standard of reasonable care. This standard can vary based on the situation, but in obstetrics, a duty of care extends to both mothers and fetuses.
Breach of the Duty of Care
A breach of the duty of care can occur if a health care worker such as a physician or neonatal nurse fails to reach industry standards of medical care. Examples could include waiting too long to order a Caesarean section or not adequately monitoring newborns in distress.
Breach of Duty of Care Caused the Birth Injury
Every day, a shocking number of medical professionals demonstrate breaches of their duty of care. Although concerning, these breaches don’t always lead to injury. Hence, another hurdle for plaintiffs in birth injury cases to overcome.
Unfortunately, it’s not good enough to simply demonstrate that the accused healthcare worker demonstrated a breach of a duty of care. You’ll also need to prove that this breach was directly responsible for your child’s injury.
Statute of Limitations
An important consideration when determining how and when to launch a birth injury lawsuit: your state’s statute of limitations. Statutes vary considerably. In some states, you must file within one year of the injury occurring or one year of discovering negligence. Other states are a little more lenient; some grant six or seven years following the date of injury.
If you’re not sure how to determine the statute of limitations where you live, look at the medical malpractice section of your state’s code or seek guidance from a trusted attorney.
Be mindful not only of the general statute of limitations in your state but also special stipulations; for example, select states allow minors to file once they reach age 18. Other unique circumstances include:
- In some states, the statute of limitations timeline only takes effect once the patient and doctor have terminated their relationship.
- Discovery of a medical condition may not always launch the statute of imitations timeline. Some states stipulate the statute as occurring a specific amount of time after an injury should have reasonably been discovered.
- In addition to statutes of limitations, many states maintain statutes of repose. These impose an overarching time restriction on malpractice cases, regardless of discovery.
How Long and Time-Consuming Are Birth Injury Lawsuits?
Timelines vary for birth injury lawsuits based on the defendant’s priorities and the availability of evidence. Lawsuits that end in a settlement can be resolved with surprising haste. Others may take several years to conclude. For example, if novel legal concepts arise in a birth injury case, the timeline could be significantly extended.
According to the New England Journal of Medicine, five years typically pass between health care injuries and the conclusion of related medical malpractice cases. However, this time includes the period between the injury and its discovery. In general, cases that end in settlement tend to take about a year, with another year or two added for cases that go to trial.
What Kind of Compensation Will I Receive?
Most successful birth injury lawsuits lead to significant compensatory damages, intended to compensate victims for the physical and emotional pain they’ve suffered due to negligence. Compensatory damages in medical malpractice cases typically cover both immediate health care bills and the cost of ongoing rehabilitation. Additionally, compensatory damages may be used to address emotional distress.
In addition to compensatory damages, birth injury lawsuits regularly lead to punitive compensation. Designed to punish the negligent party, this type of compensation may accompany especially reckless cases or those deemed malicious in nature. The goal: to set an example for other health care facilities and professionals, thereby preventing future birth injuries.
How Do I Receive Trial or Settlement Compensation?
If you successfully conclude your case with significant compensatory or punitive damages, your award may be distributed via one of two main methods: lump sum payment or a structured settlement. A lump sum is exactly as it sounds — you receive your compensation all at once. With a structured settlement, compensation may be paid as annuities. Some plaintiffs prefer structured settlements due to the tax benefits they impart. Occasionally, plaintiffs combine compensation methods to receive an initial lump sum followed by structured settlement payments.
Get Help Now
If your child has suffered a birth injury due to negligence, it’s time to take action. The sooner you contact the Cerebral Palsy Group, the better. Reach out today for more information and to learn how we can help.