What Is a Birth Injury Lawyer?
Birth injury attorneys are lawyers who specialize in this very specific area of personal injury law. For parents, having a child born with an injury or illness can be difficult and confusing. You put your trust in the medical professionals who can lead you through treatment and prognosis.
But where do you put your trust when the cause of the injury is medical negligence? That’s the tough scenario that some parents have to navigate.
How Can the Attorney Help?
A birth injury lawyer can help you answer the difficult questions about your child’s injury. They lead you through gathering information and evidence if there is any indication that your child’s birth injury is the fault of a medical provider.
While monetary compensation may be the last thing you’re concerned with, a good birth injury attorney is skilled at getting the best compensation possible so that you can more adequately provide for your child’s care.
Birth injury lawyers fall under the umbrella of personal injury law. Some generalize or work in all areas of personal injury. Many birth injury attorneys do specialize in birth injury and some even further specialize in specific injuries. While birth injury suits usually center on the child, many birth injury lawyers also handle cases of injury to the mother during the childbirth process.
What Is a Birth Injury?
There are many cases of illness or disability in newborns. In most of these instances, the health crisis is unavoidable. Even the best treatment doesn’t always result in the perfect outcome. Like any medical procedure, there can be complications associated with childbirth which are specific to the mother and child even though every precaution and care measure is taken.
In a birth injury case, there is clear evidence that the injury is the result of inadequate or negligent care. This might be due to substandard care by the obstetrician/gynecologist, nursing staff, or any number of medical personnel directly involved in the care of the mother and child.
Birth injury in a child can be mild or severe and, in some cases, the child may not present symptoms immediately. Some injury may stem from the process of childbirth – the use of tools or too rough handling by medical personnel may result in physical bruising and even broken bones.
Some injury might be the result of an infection in the mother being passed down to the infant – often the physician should test and take precautions in those situations prior to birth. Some birth injuries may be caused by a lack of oxygen. Oxygen deprivation can result in profound and lifelong brain injury for the newborn.
Why Types of Birth Injury Cases Do Lawyers Take On?
Some birth injury attorneys specialize only in birth injury or in certain types of birth injury. Other lawyers are personal injury attorneys who also represent clients in birth injury cases.
Here are a few of the common types of injury cases that birth injury lawyers represent their clients to remedy:
CP is one of the leading types of birth injuries. Children present with muscle and coordination issues but the actual cause is brain injury which can stem from oxygen deprivation, infection in the newborn or mother, and other issues such as stroke.
This condition is a paralysis of the arm due to injury to the nerves. Erb’s Palsy is often caused by injury during vaginal childbirth.
This injury is caused during childbirth when the newborn’s shoulders can’t pass through the birth canal or are obstructed. This can lead to cases of maternal hemorrhaging and other complications that may be long lasting in the infant.
A fatality is the worst possible scenario but there are cases where medical negligence leads to the death of the mother or newborn during childbirth.
Perinatal asphyxia is any condition which deprives the newborn’s brain of oxygen during or after delivery. This condition can lead to permanent brain injury and possible death.
As the name implies, these are cuts or lacerations to the newborn. This can be caused by the instruments used in a c-section, such as a scalpel. Fetal lacerations may be extremely serious, depending on the damage and the area of the body.
In some cases, newborns may experience bone fractures due to rough delivery methods or improper use of instruments.
Spinal Cord Injuries
There are a number of causes for spinal cord injuries in newborns including breech delivery, physical trauma during delivery, and congenital defects. Spina Bifida is a condition where the spinal cord is more exposed and susceptible to injury, so more care must be taken to reduce the risk for these infants.
Some trauma during childbirth can cause injuries such as cephalohematoma or capet succedaneum. These conditions respectively can cause bleeding under the scalp or swelling of the scalp.
When Could a Birth Injury be Caused by Medical Negligence?
There are many instances where a birth injury is not preventable. These may include genetic illnesses and unforeseen complications. Because you trust medical staff to educate you on your health, it can be confusing to determine whether their actions may have negatively affected your outcome.
Medical negligence occurs when your physician, nurse, or any member of the hospital or practice staff provided care that was less than the standard for your situation. For instance, spina bifida is a genetic condition. But if your child was born with spina bifida which led to a spinal injury because the condition was not diagnosed prior to delivery, that may fall under a medical negligence scenario.
To meet the level of medical negligence, it must be clear that the staff did not offer the level of care that is standard for other professionals or did not follow their own stated protocol for the situation.
Here are a few scenarios which can be categorized as medical negligence:
- Failure to detect baby’s poor positioning. Breech births and other issues with poor positioning of the baby and umbilical cord can be avoided through ultrasound and other exam methods just prior to delivery.
- Complications that arise from these issues can be prevented with the standard level of exam in most full-term deliveries.
- Undiagnosed or untreated infection in the mother. If there is an infection in the mother at the time of childbirth, there may be ways to avoid passing that infection the baby, such as c-section or preventative medication. If it’s reasonable for the physician to test for the infection in the standard protocol, this might be an issue that falls under medical negligence.
- Mishandling of medications. Administering a medication that the mother is allergic to (which is noted in her records) would be a situation that falls under negligence. Other issues with medication might include improper dosage.
- Not properly diagnosing and treating conditions in the mother. During pregnancy, mothers can develop possibly serious conditions, such as high blood pressure and gestational diabetes. These conditions are among those that are routinely tested for during pregnancy. Failure to diagnose and treat them can lead to serious complications for both the mother and fetus.
- Improper use of instruments. Many birth injuries are caused by the improper use of instruments during c-section or vaginal delivery.
What Kind of Lawyer Do You Need?
While birth injury suits do fall under personal injury law, it’s preferable to seek a birth injury attorney who specializes in these cases. You may also choose to use a firm where one lawyer specializes in birth injury and another works more exclusively in other types of personal injury. Attorneys who specialize are well versed in this type of case, can help organize information to make certain that your suit is handled properly, and are familiar with the intricacies that make this type of suit so exact.
Some lawyers work in birth injury but also specialize in unique types of birth injury, such as cerebral palsy. This can be an excellent asset for their clients because they’re not only well versed in the type of case but they’re often very well versed on the latest research and medical protocols with regard to the condition.
How Can a Birth Injury Lawyer Help You?
In cases where your family has suffered due to a birth injury, the lifelong ramifications can be complex. You might have a situation where your child will need permanent care or expensive medical needs. You may also be faced with the death of the mother.
While no amount of money can replace your loved one or make up for diminished quality of life. But monetary damages can help you to recover from the injury and improve your family’s ability to cope with future repercussions.
Your birth injury attorney can help you to collect settlements for:
- Pain and Suffering.
- Wrongful Death.
- Loss of Earnings.
- Medical Expenses.
When Should You Hire a Birth Injury Attorney?
In a case of birth injury, you should contact an attorney as soon as possible. Statutes of limitations vary by state, but you do have a limited amount of time to file a suit. For instance, in some states, you may have only two years from the time of injury or six months from the time the injury was diagnosed to file suit.
Some injuries are not detected at birth and may appear as the child ages, which is why many states allow for the time to be set by diagnosis rather than the date of actual injury. However, some states still limit it to the injury date by a set number of years. This makes it imperative to hire legal counsel as soon as possible. Your birth injury lawyers can assess the limitations on your case and make sure that you file all necessary paperwork on time.
In order for your suit to qualify as a birth injury case, there need to be a few criteria that are met by the evidence. The injury must be the direct result of medical negligence or breach of care. This might include failure to follow protocol or known standards of care, failure to monitor the mother or fetus’ health properly, or failure to act appropriately based on known information regarding their care.
How Do You Find the Right Birth Injury Attorney for Your Personal Injury Case?
Finding the right birth injury lawyer is an integral part of the process. Like choosing the right physician, you need a professional who you can trust to see your case through to the best possible outcome. If you’ve never needed an attorney before, this process can sound exceptionally daunting. The key is to research your options thoroughly.
You can start by typing the keywords, “birth injury attorney” and “birth injury lawyer” into your search engine with your location or the nearest large city. This will often give you a good list of local attorneys who specialize in birth injury cases. Don’t rely only on their information on their website.
See if you can find recommendations for their services. You can also contact the attorneys and ask them about their record with birth injury cases and how many of the same types of cases they handle in a year.
Personal recommendations are always an excellent resource. If you have a lawyer who specializes in a different field of law, ask them if they know of a good birth injury lawyer. Often legal professionals become very familiar with each other through shared colleagues and associations. Another great resource is through any support group associated with your child’s conditions. Often other members will have similar experiences and may have hired birth injury lawyers in the past. You should also check your prospective lawyer’s record with the American Bar Association as well as their standing with the state bar.
Hiring a Birth Injury Lawyer on a Contingency Fee
Contingency fees are a common practice with any sort of personal injury case. Rather than pay your lawyer an upfront retainer, the birth injury lawyer takes the case on contingency, which means that they retain a percentage of your final settlement as payment. It also means that your attorney only gets paid if you win your case and recoup some form of monetary compensation.
This practice is beneficial for a few reasons. For people of modest financial means, it allows them the ability to pursue their legal interests without worrying about the cost of hiring lawyers. This practice also limits the number of frivolous lawsuits in the court system because professional attorneys can assess the case thoroughly and determine whether you have enough evidence to proceed. In many cases, your birth injury lawyer will also cover filing fees and other incidentals to be deducted after the case is settled.
What Type of Experience Should You Look for in Your Birth Injury Attorney?
Your birth injury attorney should have experience working with cases like yours. This might include specializing in the type of birth injury your family has suffered through. If you’re hiring a personal injury lawyer, make sure that they also have experience with birth injury. You should also check their references or ask them for references from previous and current clients. Another good indication of their experience is in how well their clients have been compensated on similar cases in the past.
Factors that Birth Injury Lawyers Look into to Determine Case Value
Often the case value your attorney assigns to the case will align with their experience in similar cases and your own personal situation. In personal injury cases, there is a standard of compensation for different types of injury and birth injury cases are similar. The calculations will take into account factors such as:
- Medical care. This includes the current cost, as well as future care for those who have lifelong disabilities.
- Lost wages. In many cases, one parent may need to take a more permanent caretaking role, which can mean the loss of an income. There may also be an issue with the mother being unable to return to work, physically.
- Home Care and Other Costs. For certain birth injuries, there may be excess costs associated with home care, equipment, rehabilitation, and continue therapy.
- Pain and suffering.
How Long Does a Birth Injury Attorney Work on my Case?
Your birth injury attorney works on your case until the issue is completely resolved. They won’t get paid until the suit is settled. The time frame might range from state to state and depend on caseload. In most states, it can take up to two years to resolve a birth injury case. If you decide to settle your case outside of court, it may take less time.
How Do I Receive Settlement or Trial Compensation?
A majority of birth injury cases are settled out of court. In those cases, once a settlement agreement is reached, the money is paid to the attorney within 30 to 60 days of the agreed upon settlement. The attorney then pays you, minus the contingency fee and any agreed upon charges, such as filing fees. If the case has gone to trial, you may need to wait through an appeal process before the funds are dispersed. The appeals process can take a number of years, depending on the court and state.
Get Help Now!
If you or your child has been injured during the childbirth process, the Cerebral Palsy Group can help. We realize that this can be a confusing time for any parent. There is a deep level of grief associated with an injury to a child, especially one that can impact their overall quality of life. The legal process can be confusing and you might have some questions about whether your injury was caused by medical error. The Cerebral Palsy Group can answer your questions and help you find the resources you need.