Birth Injury FAQ
Q. What is birth injury malpractice?
A. Birth injury malpractice is a specific type of medical malpractice referring to negligence relating to the delivery of babies, including premature babies. A birth injury malpractice attorney focuses on proving whether a medical professional involved with the care of the baby, such as a physician, physician’s assistant, family doctor, nurse or midwife, failed to follow the acceptable standards of care, resulting in an error and injuries. Any care which fell below the standard of care of a reasonably prudent health care provider may give rise to a cause of action for medical negligence. In delivering a baby, for example, a mid wife is held to the same standard of care as an OB-GYN.
Q. Are birth injuries common?
A. Less than 1/2 of 1% of all deliveries result in a birth injury. This equals about 5 births out of every 1000.
Q. Are all birth injuries permanent?
A. Fortunately, many birth injuries do not result in permanent injury. Many newborns can recover from injury from recovering within a few weeks or months of birth. Common examples of this type of birth injury include bruises, broken blood vessels in the eyes, facial paralysis and collarbone fractures. Unfortunately, some birth injuries result in damage that is lifelong. Brachial plexus palsy and cerebral palsy are among the most common of the severe birth injuries.
Q. What is brachial plexus palsy?
A. If during delivery the baby’s shoulder lodges on the mother’s pelvic bone, it is essential for the doctor to follow appropriate procedures while relieving and releasing the shoulder. If he/she does not do so, paralysis of the shoulder, arm and hand can occur. Erb’s Palsy involves paralysis of the shoulder and upper arm. When only the lower arm, wrist and hand are paralyzed, the brachial plexus palsy is called Klumpke’s Palsy.
Q. How soon is brachial plexus palsy apparent?
A. The damage is seen immediately and requires prompt treatment. In many cases, if treatment is appropriate, the damaged nerves heal on their own, avoiding permanent impairment.
Q. What is cerebral palsy and what causes it?
A. There are three types of cerebral palsy. All three are caused by brain damage:
- With spastic cerebral palsy, involuntary spasms are the hallmark identifier. This is by far the most common type.
- Athetoid cerebral palsy is identified by alternating muscle activity. One minute the muscle is slack and the next it is active. Slow, almost contorted motions and sudden jolting movements are common with this type of cerebral palsy.
- Ataxic cerebral palsy is identified by lack of muscle tone throughout the body. Poor balance and impaired coordination are typical.
There are many circumstances other than a doctor’s negligence that can cause brain damage; however, there are factors that a doctor has a responsibility to manage properly before, during and after delivery. If oxygen supply is inadequate at any time during labor, the resulting hypoxia can cause brain damage. Through the use of fetal monitoring, doctors and nurses can interpret the fetal monitor strip for the first signs of any distress. Unless a C-section is performed promptly, permanent brain damage can occur. If a physician fails to identify the risks and act promptly, he may be considered negligent and held responsible for any damages to the baby.
Q. How soon is cerebral palsy apparent?
A. It often takes up to three years for cerebral palsy to become apparent. At first, the baby takes just a little longer to develop motor skills. As the baby starts developing the ability to crawl, the first hints of any injury may appear. It isn’t until the baby starts trying to walk that you really begin to see the symptoms or delays in development. For some children the symptoms are minor—a foot may curl under, causing a slight limp. For almost all children with cerebral palsy, language skills are impaired which may appear by an inability to control the tongue or to speak normally.
Q. Who may be responsible if my child is injured at birth?
A. Often it is difficult to determine whether a developmental problem was pre-ordained or caused by medical negligence. Many patients want to unfairly hold the attending physician, any assisting staff and the hospital responsible for damages to your baby. Before rushing to judgment, talk to a lawyer and investigate the case.
Remember, there may be statutes of limitations which time bar a cause of action for damages. Please consult a medical negligence lawyer immediately to determine by when this date runs which shall terminate and time bar all claims for recovery of damages.
Q. If my child has a birth defect, can I sue the doctor?
A. In most cases, it is very difficult to show that a health care provider was negligent. Unless your doctor prescribed a medication during pregnancy that has known negative effects upon the fetus or unborn child, or unless the doctor did not properly monitor and interpret the fetal heart strips and immediately act to take the baby by C-section, your likelihood of success to bring a claim against your OB-GYN may not be high. If the doctor discusses the risks of a specific medication and you choose to go ahead with it, expect the doctor to require you to sign a release indemnifying the doctor should there be any negative results. Nonetheless, this may not bar a claim for your baby if he or she has developmental problems as long as you move timely to file a lawsuit.
Because a birth injury involves a claim of medical malpractice, the burden of proof is upon you to prove that the doctor or other health professionals involved were negligent in providing their services.
Q. What kinds of damages can be collected if my child suffered a birth injury?
A. If your case is resolved successfully, you are allowed to recover damages for pain and suffering, medical expenses, future medical care, lost wages, and diminished earning capacity and life care plan expenses which your disabled child may have over his or her lifetime. You may also have actionable claims for loss of consortium–damages to the parent child relationship.
Q. How soon after the birth of my child must I file a claim?
A. Washington state law dictates that your claim must be filed within three years of your child’s birth. This is why it is so important to diligently watch for signs of cerebral palsy before the statute of limitations runs out. There are some exceptions to this rule which may extend the statute of limitations. For this reason, it is imperative for you to contact and speak to a lawyer right away.
Q. If the claim is successful, who receives the money?
A. In most cases, damages are awarded to the child, and the money is placed in a trust or blocked account subject to court order and review. Often periodic payments are made in accordance with a life care plan to cover the future expenses of the injured child.
Q. Why is it necessary to hire a birth injury attorney?
A. Because birth injuries require tremendous attention to investigate the merits of the case and determine whether the risk and expense of filing a medical malpractice claim is justified, you need an attorney that is knowledgeable and experienced in handling traumatic birth injury cases, which includes retaining all of the necessary qualified experts. The chances of your resolving a birth injury case without the assistance of an experienced birth injury attorney are very slim.
Q. How much does it cost to speak with you about my situation?
A. We never charge for an initial consultation and review of the facts surrounding your birth injury case. Email Rob at Rob@kornfeldlaw.com or call 1 (800) 282-4878 to schedule a free consultation or case evaluation over the telephone, by e-mail or in person at a convenient location for you, either at our main office, a satellite meeting location, in your home or at the hospital.
