During a woman's pregnancy, doctors and other healthcare professionals are responsible for closely monitoring the health of an expectant mother and her newborn. While parents naturally hope for their child to be born healthy and happy, the reality is not every birth goes as planned. According to data from the Healthcare Cost and Utilization Project (HCUP) and the Agency for Healthcare Research and Quality (AHRQ), approximately 28,000 families in the United States face the unexpected challenge of a birth injury each year.
This involves conducting various screenings, diagnostic tests, and routine check-ups to manage common pregnancy-related conditions and identify potential risks that may threaten the health of both mother and baby. Unfortunately, even the most experienced doctors and nurses may overlook early signs of birth complications that can arise during pregnancy. This oversight can lead to devastating birth injuries that leave families facing a lifetime of questions, concerns, and expensive medical care.
If you suspect that your child has suffered a birth injury due to the negligence of a healthcare provider, the birth injury attorneys at Miller Weisbrod Olesky understand the complexities involved in these cases and are prepared to guide you through every step of the process.
We offer free consultations to discuss your unique situation and answer any questions you may have. Additionally, we operate on a contingency fee basis, meaning you won't owe us a dime unless/until we secure a favorable outcome in your case.
We have a long history of successful results for children and their families who have suffered a birth injury due to an unrecognized risk factor.
Recent Birth Injury Settlement:
Birth Injury settlement against a hospital in which nurses and physicians failed to properly monitor the mother's blood pressure during delivery causing an HIE event resulting in neonatal seizures and cerebral palsy at birth. Our national birth injury lawyers recovered $13,750,000 for the family to help with future medical expenses and developmental therapy.
With the recovery that Miller Weisbrod made for our son, I feel like our voice was heard in a sense of what can possibly go wrong in a delivery and finding us answers. I feel with our settlement, we are now in a comfortable position to provide for our son. Things are different because he's able to be in his own space. He's developing well. He is starting to speak a little bit more and live a bit more independently. He is also in school full-time and he gets help from his nurse aid that helps him with all his appointments, all his therapy. Pretty much, I feel like it kind of helped us in a good way. I feel like they care about your personal needs and how to make you comfortable in any situation.
Lyric C.
Mother of Miller Weisbrod Olesky Client
What is a Birth Injury?
Birth injuries refer to any physical harm a pregnant mother or otherwise healthy infant suffers before, during, or after delivery. Some birth injuries are minor and often heal on their own in a few days or weeks. However, other birth injuries sustained during childbirth, such as cerebral palsy or hypoxic-ischemic encephalopathy (HIE), can result in life-long disabilities that affect a child for the rest of their life.
Unlike birth defects, which are usually genetic abnormalities present at birth that often result from hereditary factors, birth injuries typically arise from preventable birth complications related to the delivery process or the newborn phase.
A postpartum hemorrhage can occur if a doctor fails to administer labor inducing medications in cases of uterine atony.
Uterine rupture is a potentially life-threatening complication that can happen if a doctor neglects symptoms of distress, like a mother reporting severe abdominal pain or unusual changes in fetal heart rate.
Maternal sepsis is a serious condition that can develop if a doctor fails to identify or treat infections during or after delivery.
Healthcare providers have a duty to be aware of birth injury risks and complications that may arise during pregnancy or delivery and take proactive measures to address these concerns. Overlooking warning signs can result in critical delays in intervention, leading to severe outcomes for both the mother and infant.
In such cases, a knowledgeable birth injury attorney can provide essential support by gathering medical records, consulting with experts, and building a strong case to hold negligent healthcare providers accountable.
Types of Birth Injury Risks
Understanding the risk factors associated with birth injuries is essential for expectant mothers and healthcare professionals alike. These risk factors can typically be identified through proper medical evaluations during pregnancy, labor, and delivery.
Certain factors that cannot be controlled, like the mother's age or the presentation of the fetus in the uterus, are often by considered by medical providers when they are making decisions about how to minimize the risk of injury. However, if healthcare professionals fail to recognize and address these and other risk factors, the likelihood of serious birth injuries increases considerably.
Some of the most common risk factors that increase the chance of a difficult delivery and birth injuries include:
Prolonged labor, defined as labor lasting more than 20 hours for a first pregnancy and 14 hours for women with prior pregnancies, is a leading cause of birth injuries. According to most medical standards, any labor that exceeds this amount of time typically necessitates an emergency C-section to prevent potential harm to the baby.
Another cause of prolonged labor is irregular uterine activity. When contractions occur, they compress the blood vessels that supply oxygen and nutrients to the baby. If this pressure is sustained for too long, the baby may not receive the oxygen-rich blood necessary for healthy development. This condition is characterized by contractions that lack strength or are infrequent.
These irregular contraction patterns can place additional stress on the baby's brain, mainly through the risk of oxygen deprivation and result in conditions such as cerebral palsy. In these cases, may medical interventions like the administration of labor inducing medications to enhance contractions may be necessary. However, these medications can occasionally cause overly strong contractions (hyperstimulation) that may further endanger the baby's oxygen supply.
CPD is a medical term that refers to a situation where the baby is too large, or the mother's pelvis is too small for safe vaginal delivery. This mismatch can lead to labor complications and prolonged time in the birth canal, increasing the risk of potential complications during delivery. According to the American Pregnancy Association, CPD occurs in approximately 1 in 250 births.
Several factors can increase the likelihood of CPD. For example, mothers with gestational diabetes are at a higher risk of delivering larger babies. Additionally, those who have had previous pregnancies or carry their current pregnancy beyond 41 weeks may also be at an increased risk. To monitor the size of the baby and assess the risk of CPD, healthcare providers often perform routine ultrasounds throughout pregnancy and continuous fetal monitoring during labor.
When CPD is not diagnosed and managed promptly, the baby may experience oxygen deprivation and suffer permanent brain damage. Another serious risk associated with CPD is shoulder dystocia, a condition where the baby's shoulder becomes stuck in the birth canal.
Occasionally, uncertainty regarding the presence of CPD may lead doctors to use birthing tools, such as forceps or a vacuum extractor. Misusing these tools can result in further birth complications. In cases where the baby is unable to be delivered vaginally due to CPD, an emergency C-section may become necessary.
Obesity
Maternal obesity, or obesity during pregnancy, is when a pregnant woman's body mass index (BMI) reaches 30 or higher. According to the Obstetrics & Gynecology journal, infants born to mothers with morbid obesity (BMI of 40 or higher) are at a notably higher risk of suffering a birth injury. When compared with women of average weight, women who are considered morbidly obese were associated with twice the increased risk of adverse neonatal outcomes.
Mothers with a high BMI often experience a prolonged first stage of labor, which increases the likelihood of prolonged or arrested labor. Additionally, a pregnant woman with maternal obesity who has had a previous cesarean section is less likely to achieve a successful vaginal birth after cesarean (VBAC) compared to their counterparts with normal BMIs.
Given these potential birth complications, obstetricians and other healthcare providers should closely monitor mothers who already fall under the obese classification (called MOP) or gain way more weight than they need to support their growing baby (GWG). This may include regular ultrasounds before delivery, continuous monitoring of the baby's heart rate during labor, and timely intervention such as a C-section.
During pregnancy and childbirth, some viral and bacterial infections can be transmitted from mother to baby if medical professionals do not take proper precautions. Common infections include chorioamnionitis, group B Streptococcus (GBS), hepatitis B, and rubella. Even though they may cause only mild symptoms in the mother, these infections can lead to severe complications for the baby. For example, in cases where the mother has HIV, newborns face are more than twice as likely to develop GBS.
GBS is a particularly concerning bacterial infection, as it can lead to sepsis, pneumonia, or meningitis. Administering antiretroviral therapy (ART) to HIV-positive mothers during pregnancy and delivery greatly reduces the likelihood of HIV transmission to the baby while also lowering the risk of the infant developing secondary infections.
Left untreated, the presence of maternal infections, like syphilis or listeriosis, can have a negative effect on the fetal and placental membranes. Infections in pregnancy can also complicate the labor and delivery process by triggering a fever in the mother and disrupting the fetal oxygen supply. These disruptions can deprive the baby of essential oxygen, which may result in severe complications such as HIE and cerebral palsy.
Between 2017 and 2019, maternal infections contributed to approximately 14% of pregnancy-related deaths in the U.S. Medical professionals are responsible for monitoring maternal health closely and following protocols for infection management during labor and delivery, such as administering prophylactic antibiotics and being prepared to act swiftly if signs of infection or complications arise.
Uterine rupture is a severe birth complication that occurs when the muscular wall of the uterus tears, often during labor. This rupture may cause the baby to slide into the mother's abdominal cavity. Although rare, occurring in less than 1% of pregnancies, the risk of uterine rupture can increase due if the mother has had a previous cesarean sections or uterine scarring. When uterine rupture occurs outside a hospital, neonatal fatality rates can be as high as 6%.
Although most newborns survive this condition, a uterine rupture can deprive the baby of essential oxygen (birth asphyxia), leading to brain damage (including HIE) and lifelong neurological conditions such as cerebral palsy. Consistent monitoring during labor and promptly responding to any warning signs can significantly lower the associated risks of uterine rupture.
For instance, to reduce the risk of uterine rupture, many women with previous cesarean sections or uterine scarring are advised against attempting a vaginal birth after c-section (VBAC). A repeat C-section is often considered safer in these cases, as prior surgical scars on the uterus can weaken its structure and increase the likelihood of rupture during labor. Whenever a VBAC is attempted, there are a series of steps and protective measures which must be strictly followed to prepare for the foreseeable possible birth complications.
Examples of medical negligence that may result in uterine rupture are:
Surgical intervention is often required in cases of uterine rupture or emergency, which can result in extended hospital stays and the need for ongoing medical support. Physical, occupational, and psychological therapies are also commonly recommended to aid recovery.
Any deviation from an average birth weight can increase a baby's risk of birth injury. Due to their delicate bodies and underdeveloped systems, babies born before 37 weeks (premature babies) are more vulnerable to severe health issues and face a higher risk of suffering a birth injury. Preterm babies are more likely to experience various issues, including respiratory difficulties, heart problems, and problems with temperature regulation, gastrointestinal function, and immune response.
Additionally, when a baby is born smaller than expected for their gestational age, they may be diagnosed with intrauterine growth restriction (IUGR). This condition also occurs when a fetus does not grow at the anticipated rate inside the womb. Infants with IUGR may struggle to cope with the stresses of labor and delivery, making them more vulnerable to oxygen deprivation and various types of injury.
Several risk factors can increase a baby's risk of being born early; some of these include having previously had a premature birth, placental complications, problems with the cervix or uterus, and getting pregnant with multiples or 6 months after a previous delivery.
Additionally, factors such as poor nutrition, unhealthy lifestyle choices (like smoking, alcohol, or drug use), maternal infections, or physical injuries can also increase the risk of early delivery. Mothers who consume alcohol during pregnancy run the risk of exposing their child to Fetal Alcohol Syndrome (FAS). Exposure to alcohol in the womb can cause the child to suffer a wide range of disabilities related to developmental milestones including behavior, learning, and physical developments.
While the exact cause of premature birth can be challenging to pinpoint, healthcare providers can monitor high-risk pregnancies for these risk factors and take reasonable preventative measures when necessary. If physicians fail to take reasonable and expected steps when making decisions about how to manage risk factors for birth injuries, they can be held responsible for any resulting harm to a mother and her newborn.
This refers to a condition where a baby grows excessively large for its gestational age. A baby weighing more than 8 pounds, 13 ounces will be classified as macrosomic. Fetal macrosomia is a relatively, affecting approximately 10% of all pregnancies. However, the incidence rate increases dramatically to around 50% for mothers with gestational diabetes.
If the baby is excessively large to fit through the mother's pelvis, it may not be advisable to attempt vaginal delivery and the likelihood of injury during delivery significantly increases. Even when a fetus is of average size and weight, some pelvic shapes (flat pelvic opening or heart-shaped ) have narrow openings that make it challenging for a baby to pass through.
When a baby is diagnosed with macrosomia, there is an increased risk of cephalopelvic disproportion (CPD) during delivery. Additionally, due to the baby's larger size, if a doctor fails to recognize this condition and attempts to pull the child through the birth canal, it can cause the baby to suffer shoulder dystocia.
Fetal macrosomia also often leads to a higher likelihood of cephalohematoma, a type of birth injury characterized by bleeding that occurs between the baby's skull and the periosteum (the membrane covering the bones).
When a baby is in an abnormal position before delivery, vaginal delivery can become extremely challenging and contribute to the risk of a baby sustaining a birth injury. Position and presentation are the two key terms used to describe how a baby is situated inside the womb before birth. Position refers to whether the fetus is facing down toward the mother's back or up toward her stomach, while presentation describes the part of the baby's body that will first enter the birth canal.
Typically, babies are delivered headfirst, known as cephalic presentation, with the ideal position being head-first and face-down. Abnormal presentation refers to cases where the baby has not moved into this standard position before labor begins. These abnormal presentation positions may include breech, face, brow, breach, and shoulder.
In breech or face-first presentations, doctors may need to use obstetrical tools like forceps or vacuum extractors to assist in delivery. However, if used improperly, these tools may also raise the risk of physical trauma, such as fractures or brachial plexus injury. Additionally, the baby may suffer oxygen deprivation if the umbilical cord is abnormally positioned or wrapped around the baby's neck. This can result in the baby suffering from prolonged oxygen deprivation, which can lead to long-term neurological issues, developmental delays, or even permanent brain damage.
The risks associated with abnormal delivery positions can also impact the mother during childbirth. If a baby is not positioned correctly, labor can become prolonged and arduous, and the risk of postpartum hemorrhage, severe vaginal tearing, and perineal lacerations increases.
In the weeks leading up to delivery, physicians should be able to determine what position a child will be born in and recommend a C-section to protect an expectant mother and her baby. Although a C-section does not completely eliminate the risk of birth injuries, it can significantly reduce the likelihood of complications associated with difficult deliveries.
The umbilical cord, a tube attaching from the baby's stomach to the placenta, acts as a lifeline from mother to baby throughout pregnancy. It plays a crucial role in supporting the baby's growth and development by delivering essential oxygen while removing waste products. Any disruption in the umbilical cord's function can deprive the baby of vital resources necessary for healthy growth and development.
Some of the most common umbilical cord issues that can interfere with a baby's health are umbilical cord compression and prolapse. Umbilical cord compression is a condition that occurs when the umbilical cord is squeezed or compressed due to the baby's position during labor, tight nuchal cords (where the cord wraps around the baby's neck), or excessive amniotic fluid. When blood flow is compromised, the baby may not receive the necessary oxygen and nutrients required for healthy development, leading to conditions such as hypoxic-ischemic encephalopathy or cerebral palsy.
Another significant concern is umbilical cord prolapse, which happens when the cord moves down the birth canal before or alongside the baby. Ideally, the cord should exit the birth canal after the baby. If the cord precedes the baby or moves alongside it, it can create dangerous situations that may result in birth asphyxia, hypoxic-ischemic encephalopathy, and other birth injuries.
Common signs that may indicate umbilical cord issues include irregular fetal heart rates and reduced fetal movements. There are currently no treatments for most of these complications. Instead, medical providers generally rely on monitoring the condition closely and taking action when needed.
Shoulder Dystocia
Shoulder dystocia occurs when the baby's head emerges from the birth canal, but the shoulders become lodged behind the mother's pelvic bone. If the mother is petite or the baby is particularly large, the risk of the baby becoming stuck in the birth canal increases. As a cesarean section cannot be performed due to the baby being partially delivered, this situation poses significant risks.
The risk of shoulder dystocia, as well as other types of birth injuries, can be influenced by the relative sizes of the mother and baby. If the mother is petite or the baby is larger than average, there is a greater chance that the baby will become stuck in the birth canal. Prolonged entrapment in the birth canal can cause the baby to suffer from oxygen deprivation or even brain damage. These complications can lead to severe birth injuries, including cognitive impairments, developmental delays, and physical disabilities.
In some cases of difficult deliveries, medical professionals may utilize assistive devices like vacuum extractors or forceps. However, while these interventions can be effective in helping to facilitate a difficult birth, improper application of these tools can put the baby at risk of brain injury, head trauma from the instruments, or nerve damage. The urgency of resolving shoulder dystocia In a timely manner cannot be overstated, which is why it is crucial for healthcare providers to have specialized training and experience when dealing with complication of pregnancy.
During pregnancy, placental complications present serious risks to both mother and baby. Among the most concerning are placenta previa, placental abruption, and placental insufficiency.
Placenta previa occurs when the placenta moves toward the bottom of the womb, near to or covering the cervix. If the placenta is less than 2cm from the cervix, it's called low-lying placenta, or placenta previa, if it completely covers the cervix. In cases of placenta previa, the placenta's low position in the uterus can block the baby's passage through the birth canal.
A vaginal delivery may pose severe risks of hemorrhage for the mother and distress for the baby if the placenta is obstructing the cervix.
Placental abruption is another severe birth complication where the placenta prematurely detaches from the uterine wall. This condition can lead to intense abdominal pain, vaginal bleeding, and frequent contractions. If not addressed promptly, the detachment disrupts the supply of oxygen and nutrients to the fetus, increasing the likelihood of birth complications such as fetal distress, premature birth, and even stillbirth.
For the mother, this condition can lead to significant blood loss, potentially resulting in shock and a serious risk of multi-organ failure, infection, or even cardiac arrest without immediate medical intervention. Placental insufficiency happens when the placenta cannot deliver sufficient blood, oxygen, and nutrients to the fetus. This insufficiency can develop due to maternal health issues like high blood pressure, diabetes, or blood clotting disorders, as well as other pregnancy-related complications.
When the placenta fails to adequately supply the fetus, it can restrict growth and lead to complications such as low birth weight, developmental problems, and a higher risk of preterm birth. Early detection of placental complications is essential to managing risks effectively, including regular prenatal check-ups, ultrasounds to monitor placental position and function, and blood tests to assess the mother's health and any potential abnormalities.
Throughout pregnancy, medical professionals play an essential role in assessing the various risk factors, providing necessary interventions, and ensuring expectant mothers are well-informed about their options. If a doctor or other healthcare provider fails to adequately assess risk factors and provide appropriate interventions, they may be held liable for medical negligence.
A birth injury lawyer can help victims and their families ensuring they receive the compensation they need and deserve for their child’s injuries and other losses.
Common Birth Injuries Resulting from Medical Malpractice
Physicians and other healthcare professionals receive extensive education and training to be able to respond effectively in emergencies and complex situations during childbirth. Despite this, there are still numerous birth injuries that arise from mistakes made by healthcare providers during labor and delivery.
Cerebral palsy (CP) is a group of neurological disorders that often result from a brain injury occurring shortly before or during birth. According to data from the Centers for Disease Control and Prevention (CDC), the average prevalence of cerebral palsy is 1 to nearly 4 children per 1,000 live births. This condition impacts muscle control and tone, leading to difficulties with movement, posture, and balance.
Symptoms of CP can vary by type but often include:
Delayed speech or growth development
Impaired fine motor skills, such as difficulty picking up objects
Neurological complications, such as abnormal eye movements
Spasticity or prolonged muscle tightness
There is no cure for CP, and although it is not a progressive disorder, meaning it doesn't get worse over time, symptoms and impairments may change or worsen over time. Children with CP may require regular medical care, ongoing therapy, specialized educational support, and adaptive equipment to manage symptoms.
However, with some symptoms becoming more pronounced as the child grows, the level of care and intervention needed may increase. For instance, as children with CP reach different developmental milestones, such as learning to walk or communicate, they may require additional physical therapy, speech therapy, or specialized educational programs to support their progress. Early interventions and personalized care strategies are vital to helping a child with CP reach their full potential and live an improved quality of life.
Each year, approximately 17,500 individuals experience a spinal cord injury in the United States. However, only about 5% of these cases involve children. While it is uncommon for newborns to suffer spinal cord injuries, when they do occur, they can compromise the delicate structure of the spine, disrupting the essential nerve connections between the brain and the rest of the body.
Such disruptions can lead to severe injuries that may have lasting effects on the child's health and development. The severity of spinal cord injuries can vary significantly, from mild bruising to severe, long-term disabilities that require extensive medical intervention. As the consequences of these injuries can range considerably, early intervention is essential to minimizing potential long-term complications.
Signs and symptoms to watch for include:
Breathing difficulties if the injury is high in the spinal cord
Muscle stiffness or spastic movements
Noticeable pain or discomfort when moving the baby's spine or limbs
Poor feeding due to weakness or coordination problems
Weakness or paralysis in the arms or legs
Parents and caregivers should remain vigilant and seek immediate medical attention if they notice any concerning signs or symptoms. Early detection and treatment of potential spinal cord injuries can make a significant difference in the treatment and recovery process.
If you suspect that your child has suffered a spinal cord injury due to medical negligence, seeking the guidance of a knowledgeable birth injury attorney who can advocate for your child's rights and hold all responsible parties accountable.
Hypoxic-ischemic encephalopathy is one of the more severe types of brain injuries caused by a lack of oxygen and blood flow to the brain during labor and delivery. HIE affects approximately 1.5 to 2.5 per 1,000 live births in developed countries. Of babies diagnosed with moderate to severe HIE, up to 40% may not survive infancy.
After birth, the most common and effective treatment for moderate to severe HIE is cooling therapy or therapeutic hypothermia. It involves cooling the infant's body temperature to around 33.5°C (92.3°F) for 72 hours. This process can help reduce brain injury, neurodevelopmental disability rates, and even death in babies with HIE by slowing metabolic processes and inflammation.
While the exact cause of HIE is often unknown, several known risk factors may contribute to its development.
The baby's heart fails to beat normally or breathing ceases.
The severity of HIE and its long-term consequences often depend on the amount of time the fetus spends without oxygen or blood flow. Some children who experience HIE may experience mild to moderate symptoms, while others face severe disabilities.
Brain injury from HIE can lead to several developmental and neurological issues, such as cognitive impairments, developmental delays, cerebral palsy, and epilepsy. Signs and symptoms parents and caregivers should be on the lookout for as a baby develops include muscle tone irregularities, abnormal movements, reduced reflexes, and respiratory issues.
Brachial Plexus Injury & Erb's Palsy
The brachial plexus is a network of nerves located in the upper shoulder and neck area that is responsible for sending signals between the spinal cord and a baby's shoulders, arms, and hands. If the area is pulled or pinched during childbirth, this delicate bundle of nerves can be damaged, potentially leading to different degrees of mobility issues and weakened control.
While some brachial plexus injuries are minor and allow for full recovery, more severe cases can resulted in restricted movement of the child's affected limb. Factors such as larger birth weight, maternal diabetes, and prolonged labor can increase the likelihood of brachial plexus injuries
Erb's Palsy is a type of brachial plexus injury frequently caused by shoulder dystocia. It is estimated to occur in approximately 0.9 to 2.6 cases per 1,000 live births, making it one of the most common types of brachial plexus injury. Although there are safe and proper measures doctors can take to handle this emergency, if they are pulling on the baby's head or neck to assist in the delivery, it could overstretch or even tear the brachial plexus nerves.
Treatment options may include physical therapy, occupational therapy, and, in some cases, surgical intervention, depending on the severity of the injury. With prompt diagnosis and timely interventions, many children with brachial plexus injuries can lead active and fulfilling lives.
Who Can Be Held Liable for Birth Injuries When Risk Factors Are Ignored?
Birth injuries can lead to severe health issues, disabilities, and even death in infants. While some arise from natural complications, many result from the negligence and errors of medical professionals during labor and delivery.
When a child and their family have been affected by sub-standard medical care, pursuing a birth injury malpractice lawsuit against any party whose negligence contributed to a baby, or mother's injuries can help them recover the compensation they need and deserve.
Common examples of those who may be held accountable for birth injuries include (but are not limited to):
Obstetricians (OB-GYN)
Other obstetric professionals
Surgeons
Pediatricians, including pediatric neurologists
Anesthesiologists
Labor and delivery nurses
Midwives
Nurses
Hospitals and medical facilities
Hospital administrators
Other hospital staff
Neonatal intensive care nurses and aids
Neonatologists or pediatricians providing neonatal care
Respiratory therapists
Maternal-fetal medicine physicians and specialists (MFM)
Laboratory staff
Hospitals may also be held vicariously liable for injuries or harm a patient suffers due to the negligent actions and omissions of an employee acting within the scope of their employment. It is also possible for a hospital to be held directly liable for its own negligence. For example, a hospital may be held directly liable if they fail to establish proper patient safety protocols or violate patient confidentiality by mishandling patient records. Seeking the guidance of a birth injury attorney is the best way to ensure all avenues for compensation are explored and effectively pursued.
Proving Medical Negligence in a Birth Injury Claim
When a child suffers harm during childbirth, it can have devastating and lasting effects on both the child and their family. To hold negligent healthcare professionals accountable and successfully file a birth injury claim, your lawyer will need to prove that their failure to meet the accepted standard of care directly contributed to the injury.
This typically involves collecting evidence and gathering expert testimony to establish the following four key elements of negligence:
Duty of Care: A patient-provider relationship existed at the time of the accident, establishing that the healthcare provider had a legal duty to provide a reasonable standard of care to the patient.
Breach of Duty: The injured party (plaintiff) must prove that the medical professional failed to meet the standard of care expected of a competent medical professional in the same field and other similar circumstances. For instance, if a healthcare provider fails to monitor fetal heart rates during labor, this could be considered a breach of duty.
Causation: It must be demonstrated that the breach of duty directly caused or significantly contributed to the birth injury. This often requires medical evidence to link the negligence to the injury sustained. Demonstrating causation can be complex and requires expert medical testimony to establish a clear link between the healthcare provider's negligent actions and the resulting harm.
Damages: The injured party must prove that they have suffered compensable damages. This encompasses a wide range of potential losses, including medical expenses for immediate and ongoing care, costs associated with rehabilitation or special education, pain and suffering experienced by the child and family, and any lost income due to the inability to work while caring for the child.
Establishing these elements often requires a skilled birth injury lawyer to collect medical records, witness statements from healthcare staff, and documentation of the child's condition both pre- and post-delivery. Your attorney may also work closely with medical professionals, economists, and vocational experts to quantify the short- and long-term impacts of the injury on your child and family.
Types of Legal Damages in a Birth Injury Lawsuit
If you suspect that medical negligence contributed to your child's birth injuries, taking prompt legal action is essential to securing the compensation needed for your child's medical expenses and ongoing care. In a birth injury lawsuit, damages can be divided into two main categories: economic and non-economic.
Economic Damages are quantifiable financial losses that directly result from the birth injury. These damages can be calculated based on the cost of actual losses and/or projected future expenses.
Some examples of these damages include:
Medical bills and life care expenses (including the cost of any future medical care)
Rehabilitation and therapy costs (occupational, physical, speech, behavioral, and cognitive)
The cost of attendant and home health care
Parents loss of income or wages due to caring for their child if they are unable to or must take time off work (including future loss of income)
The cost of medication
The cost of adaptive equipment and technology (hearing aids, specialized keyboards, and wheelchairs)
Lost future earning capacity (if the child's birth injury impacts the child's ability to work in the future)
The cost of special education and tutors
Home and vehicle modification costs (such as ramps or accessible bathrooms)
The cost of surgery or other specialized treatment
The cost of diagnostic testing
Non-economic damages address the intangible losses that often have a tremendous impact on the victim's well-being and quality of life.
Here are some examples of these damages
Pain and suffering
Diminished quality of life
Disability and Physical Impairment
Disfigurement and permanent scarring
Mental Anguish
Anxiety, depression, or post-traumatic stress disorder (PTSD)
Loss of consortium
Punitive or exemplary damages may be awarded in cases where the actions of the at-fault party demonstrate gross negligence, recklessness, intent, or malice. These damages aim to hold the negligent healthcare provider accountable for their extreme carelessness and discourage others from committing similar acts.
Several factors are considered in determining the potential settlement award you may receive, these include the severity of your child's birth injury, the extent of your economic losses, and the long-term impact of the injury on your child's quality of life. A qualified birth injury malpractice attorney will thoroughly investigate your case to determine the type and amount of damages that may be available in your case.
Statute of Limitations in a Birth Injury Lawsuit
Statutes of limitations (SOL) are established by law in each state and dictate the timeframe within which a personal injury lawsuit must be initiated. Typically, the countdown begins on the date of the injury. However, the discovery rule provides an exception to this rule in cases where the injury was not immediately apparent. Under this rule, the clock doesn't start ticking until the injured person discovers or reasonably should have discovered their injury. This can be confusing, so it's advisable to contact a knowledgeable birth injury attorney to discuss your and your child's legal rights and options.
For damages (other than medical expenses) incurred until age 18, a lawsuit must be filed by the time the child turns 14.
To recover medical expenses for the child from birth until age 18, the lawsuit must be filed within two years of the date of the accident.
If the statute of limitations expires in your case, you may lose the opportunity to seek compensation. A medical malpractice lawyer can determine the specific deadlines that apply to your unique situation and ensure paperwork is filed on time.
How Can Our Birth Injury Lawyers Can Help?
Medical malpractice is responsible for thousands of birth injuries each year, impacting the lives of countless families. Those responsible for these preventable injuries often refuse to take accountability for their actions, especially in cases involving severe complications during pregnancy.
Additionally, the financial repercussions of a birth injury can reach hundreds of thousands or even millions of dollars. Consequently, hospitals and insurance companies often try to minimize or outright deny valid claims. At Miller Weisbrod, our dedicated birth injury attorneys understand the complexities involved in these cases and have a proven track record of successfully securing compensation for countless victims of birth injuries and their families.
We offer free consultations to discuss your unique situation, where we'll discuss the details of your case and answer any questions you may have. Additionally, we work on a contingency fee basis, meaning you don't pay us unless we win your case. Call our toll-free line at 888-987-0005 or by filling out our online request form to set up your complimentary case review today.
