Birth Injury and Medical Malpractice Lawsuits

Birth injuries are the result of complications during labor and the delivery of an infant, which can cause anything from mild bruising up to and including brain damage, permanent disabilities, lifelong health problems and even wrongful death. When these injuries are the result of negligence by doctors and medical personnel, medical malpractice lawsuits are frequently filed. This article will explain more about birth injuries and when the legal system is an appropriate monetary remedy.

Statistics of Birth Injuries

Various reports estimate the number of birth injuries to occur in six babies for every 1,000 born alive in the US each year. The rate is higher for males than females and occur at a significantly greater rate in large, busy hospitals than smaller hospitals (under 100 beds.)

Types and Causes of Birth Injury

Not every injury is due to the doctors negligence. A list of common causes of birth injuries which result in medical malpractice lawsuits include the following:

  • failing to supply adequate oxygen to the baby
  • failing to treat jaundice in a timely fashion
  • inappropriate or erroneous use of forceps or vacuum
  • inappropriate or erroneous use of oxytocin or misoprostol
  • inappropriately treating infection
  • failure to recognize fetal distress or non-reassuring fetal distress
  • failure to decide and perform a caesarean-section birth in a timely fashion
  • failure to properly resuscitate a depressed baby

If an infant suffers from oxygen deprivation during childbirth, brain damage may result. Consequences from this injury include seizures, behavioral problems, mental retardation and emotional disabilities later in life. Other injuries include cerebral palsy (irreversible impairment of speech, movement, development and coordination), brachial plexus palsy, Erb’s palsy (lack of sensation and inability to move hands or arms), temporary paralysis, spinal chord damage, fractures, and Group B strep.

Challenges can arise while the mother is either in labor or during the delivery process and medical personnel are trained to take necessary precautions to prevent foreseeable complications and potential injuries to the baby.  It is the doctor’s duty to monitor the oxygen supply to the mother and infant during labor and birth, including the baby’s position in the birth canal and taking into account the size of the baby. Problems frequently occur  with misuse of medical equipment such as a forceps or vacuum extractor. A fractured collarbone or clavicle can happen when forceps are used to pull on the infant. Pulling the arms can cause dislocation of the collar bone and result in permanent malformation and discoloration of the upper arm and shoulder.

Birth Defect Versus Birth Injury

A distinction must be made between a birth defect and a birth injury since the latter is frequently the result of negligence and actionable while the former is not. A birth defect is an unfortunate problem that the baby has when born, regardless of what may happen during delivery. If the child is afflicted with a genetic disease, it would occur independent of the actions of any doctor, nurse or midwife.

A birth injury happens to an infant during labor and delivery that could have been prevented. Some injuries are minor and have no lasting effect. Other injuries are serious and can have lifelong consequences. Thus there are three basic parts to analyzing a birth injury – (i) whether the injury could have been prevented, (ii) whether the injury was the result of negligence by doctors or medical professionals, and (iii) whether the injury is temporary or permanent and of sufficient size and magnitude to warrant action.

There are circumstances over which a doctor has control and can prevent a birth injury.  These include allowing prolonged labor, not performing a C-section when it is necessary (usually because the infant is too large or the mother’s pelvis is malformed), misusing a vacuum suction device – negligence in all of these instances can cause brain injury to an infant and which could have been prevented by adequate care by medical professionals.

Steps to Take If Your Baby is Injured

If your baby is injured during labor or delivery, you should get immediate treatment and diagnosis for the infant. You would likely be best served by obtaining a second opinion from another doctor. Keep all copies of your medical records as well as the medical records of the baby to give to your lawyer in the event that you are advised to file a lawsuit on behalf of your child. As hospital records can be lost or destroyed, it is important to obtain copies of all your files and make an appropriate request if copies of some of your files are not in your possession.

The Need for Birth Injury Attorney

In the event of a birth defect, there is no remedy for the injury – it is an unfortunate as no person is responsible. However, if a birth injury is potentially caused by medical negligence, it is appropriate to seek the counsel of a birth injury lawyer to help you determine the extent of an injury and the potential amount of money it may cost to deal with the child’s injuries (this is in addition to pain and suffering.) It is important to investigate and file a medical malpractice negligence sooner rather than later since the statute of limitations applies in birth injury cases. The statute of limitations is a rule of law which limits the time for you to file a lawsuit from the date of an injury, otherwise the claim expires no matter how sever the injury. Additionally, it is common for a doctor to immediately consult an attorney after a birth injury for personal protection from a potential lawsuit. In addition to quickly obtaining necessary medical records and preserving evidence, an having an attorney on your side soon after you discover a birth injury can be a very important and critical steps to protecting your rights and the rights of your newborn child.

Michael M Wechsler, Esq.

Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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