Has your child sustained a birth injury?
Believe it or not, the United States is “the most dangerous place in the developed world to give birth.” And the risks aren’t just for women giving birth; just ask anyone whose child has been injured or even killed by a medical professional’s errors during delivery.
Birth Injury Facts
Birth injury or birth trauma refers to an injury that occurs to an infant during the birth process. In the U.S., there are around six to eight birth injuries per 1,000 births. It’s predicted that nearly half of those injuries could have been avoided through “recognition and anticipation of obstetric risk factors.” Those risk factors include:
- Infants who are large for their age, especially those who weigh more than about 9.9 pounds
- Infants who are born vaginally but who are in a breech position
- Deliveries that involve instruments including forceps or vacuum suction
- The use of excessive traction or pulling forces during delivery
But some birth injuries happen when there are no risk factors, simply because doctors and medical staff failed to follow proper delivery room procedures. They might not have adequately monitored the baby’s medical condition, such as fetal heart rate, or may not have delivered appropriate medical care to the mother during the birth process. Often, doctors are slow to recognize that a C-section is necessary—and those delays can harm both mother and child.
The birth injuries that result can range from temporary disfigurements to permanent disabilities. They include:
- Cuts, bruises, swelling, and bleeding, especially of the face and head
- Broken bones, including the collarbones and long bones of the arms and legs
- Nerve damage, often to the hands, arms, and shoulders
- Spinal cord or brain damage, including cerebral palsy
Cerebral palsy occurs at a rate of between 1.5 to more than 4 per 1,000 live births.
Surgical errors may occur because doctors and surgical support staff are exhausted from working long hours, because they fail to communicate with the rest of the team about the patient’s needs or medical condition, because they take unacceptable risks or shortcuts out of haste or laziness, or because they’re simply inattentive or incompetent.
But whatever the reason for a surgical error, the person injured shouldn’t be the one to bear the costs. That’s why we initiate medical malpractice lawsuits for people injured by surgical errors.
Surgical Error Lawsuits
To prove liability in a surgical error lawsuit, you must establish two facts.
First, the medical treatment you received must not have met an accepted “medical standard of care.” The expected standard of care is the care that an ordinary, competent health care professional with a similar level of training and experience would have provided under the same or similar circumstances.
Suppose you have unexpected bleeding during surgery that could not have been detected from a thorough medical history or pre-operative bloodwork. The surgical team immediately notices the bleeding and follows every accepted protocol to treat it. That care would meet the medical standard of care even if your surgical outcome turned out considerably worse than you expected.
On the other hand, if that bleeding were due to a genetic condition that could have been anticipated from a thorough pre-surgical workup, or if that bleeding was not promptly noticed and treated, you could have a claim for medical malpractice—but you still have to meet the second condition.
Second, the error must have actually harmed you. If you were not harmed, there is no medical malpractice, even if the error was outrageous. This could occur if an operating team made a mistake during your procedure but noticed the mistake and was able to correct it with no additional pain, medical risk, or monetary cost to you.
And there’s another hurdle you’ll have to clear: that of the statute of limitations, which defines the time limit in which you must bring a claim. That means that it’s important to act quickly when you or a loved one has been injured by a surgical error.
According to the National Institutes of Health, most surgical errors are due to problems before or after, rather than during, surgery.
Children injured at birth may need lifelong care as a result, or their injuries may require extensive—and expensive—childhood therapies. That’s where birth injury lawsuits come in.
Birth Injury Lawsuits
To hold a medical professional responsible for your child’s birth injury, you must establish several facts.
First, you must prove that your child sustained an injury during—not before or after—birth. A word of warning here: doctors and hospitals often try to avoid responsibility by claiming that a child’s condition is due to a birth defect—something that happened in the womb before delivery—rather than a birth injury. Where injuries aren’t evident until later, they may also claim that the damage occurred after birth, due to something in the child’s environment. For example, while the Centers for Disease Control previously stated that the majority of cerebral palsy cases were due to birth injuries, it now estimates that disruption of the oxygen supply during birth, or birth hypoxia, accounts for less than 10 percent of cerebral palsy cases.
As far as we’re concerned, that’s still 10 percent too many.
The CDC has estimated that the lifetime cost to care for an individual with cerebral palsy was nearly $1 million in 2003 dollars—which is about $1.3M in 2019 dollars.
Second, you must prove that your child’s injury occurred due to a medical professional’s failure to act in accordance with a generally accepted standard of medical care. It usually takes the testimony of a medical expert—another doctor—to establish that a particular medical professional failed to conform with an accepted standard of medical care. That’s one of the reasons that these cases are so difficult.
Finally, you must show that you or your child have incurred damages as a result of that injury. For example, if your child was bruised during birth but heals quickly without any further effects, you’re unlikely to be successful in a birth injury lawsuit. Sadly, the birth injuries we see are typically far more serious and longer-lasting.
Example Birth Injury Cases
Although they’re difficult to litigate, birth injury cases can provide families with the financial resources they need to adequately help their injured children.
That’s what happened with Maverick Ramseyer, who was diagnosed with cerebral palsy after being deprived of oxygen during birth. His mother was 15 days overdue and labored for more than 11 hours before doctors decided to perform an emergency C-section. The parties went to trial with a $40 million demand before reaching a confidential settlement.
And then there’s Noah Whitney, also diagnosed with cerebral palsy, whose family obtained a $9 million settlement against a Hawaii military hospital for his injuries.
But these are not the kinds of cases that parents—or general practice attorneys—can handle on their own.
PCVA Can Help
We’re experienced lawyers who understand the intricacies of medical malpractice—and we’re not afraid to go up against doctors and hospitals who have injured children at the very beginning of their lives. Whether you’re seeking damages for medical expenses, ongoing healthcare costs such as therapies or necessary medical equipment, or pain and suffering, we can help you obtain justice.
If your infant was injured during birth, please reach out to us. We know what you’re going through, and we’re here to help.