- Immediately after it has been determined that a birth injury of any sort has occurred, it is important to begin properly documenting the situation for use in possible future litigation.
- Birth injuries caused by medical professionals are considered medical malpractice, which is a subset of negligence. As such, victims must follow the same procedures when pursuing a negligence case against another party.
Because the victim in birth injuries is a minor child, the claims are brought to court by a legal guardian, typically the child’s parents. These claims typically must be filed within 8 years of the child’s birth, though other statues of limitation do exist, so it is best to seek guidance from an experienced birth injury lawyer.
Compensation for birth injury suits varies depending on the severity of the injury, medical expenses, pain and suffering, and the expected loss of future earnings. A skilled birth injury lawyer or attorney will be able to determine the full amount of damages to seek.
Birth injuries are among the most traumatic of incidents that can happen to a new parent. Broadly, birth injuries fall under the category of medical malpractice: bad deeds done by a doctor, medical provider, or hospital in connection with the birth of a child. For example, birth injuries may occur that give rise to liability if a doctor fails to recognize that a newborn child is not getting sufficient oxygen, causes the baby to experience undue trauma at birth, or fails to identify that a newborn child has been born with a serious issue that requires immediate medical attention.
Determining if a birth defect is caused by genetics or result of delivery?
Injuries at birth can be difficult to conclusively diagnose. Unavoidable birth defects cause by genetic or other issues may appear as though they are injuries suffered at birth, or vice versa. As a result, it is exceedingly important for parents to gather the facts surrounding their child’s condition immediately after a birth injury or defect is diagnosed, and to document these facts for future use in possible litigation.
Are birth injury suits and medical malpractice suits similar?
In general, birth injuries are treated similarly to other medical malpractice issues with several important caveats. Medical malpractice is a subset of negligence, which requires proof of four elements: the existence of a duty, a breach of that duty, causation, and actual, usually physical, damages.
In general, doctors owe a duty of care to their patients. They must use the degree of care and skill an average health care provider who practices the provider’s specialty would use: that is, what an average physician who practices in this medical field might do in similar circumstances. For example, if an average doctor would immediately identify a suffocating newborn and provide oxygen to the baby within moments of birth, a doctor who fails to provide oxygen to a suffocating newborn would have breached the doctor’s duty of care. Conversely, however, if a doctor failed to perform experimental open heart surgery on a newborn, but this type of surgery would not have been performed by an average doctor under similar circumstances, that doctor would not have breached his duty of care, even if that procedure may have prevented serious injuries to the baby.
Doctors also have a duty to supervise other trained healthcare personnel, provided that this would be reasonable under the circumstances. For example, if a nurse working under a doctor injures the child at birth, the doctor may still be at fault for failing to property supervise the nurse, and the nurse himself, and hospital, may also be liable for the damages
After a duty and breach of duty has been established, causation must be proven. In many birth injury cases, it is clear that the doctor’s negligence or bad actions have caused the injury, however, it may be the case that injuries arise in a newborn unrelated or after the doctor’s care: for example, an injury to the child as a result of a different healthcare provider’s actions after the birth, or an injury to the child after being taken home caused by actions of the child or the parents. Damages are usually easy to prove, as birth injuries often substantiate themselves in physical or mental injuries in the newborn. Importantly, however, some injuries obtained at birth may not manifest for years after the birth, and parents therefore must be careful to document these injuries and the circumstances of the birth for potential use in a lawsuit.
Claims and Procedures After a Birth Injury
A birth injury results in a claim against a doctor, hospital, or medical staff. The injured child holds these claims him or herself. However, because the injured child is a minor, a birth injury claim must be brought on behalf of the child by a parent (generally, 18 years or older), as a “guardian ad litem,” or “guardian for the purposes of the lawsuit.” Although most birth injury lawsuits are brought by parents, in California, anyone whose interests are not adverse to the interests of the child, and is willing to file an application in court and explain their relationship to the child, can sue and obtain recovery on behalf of the child.
An important aspect of birth injury cases is the statute of limitations that applies to these cases: that is, the amount of time that the injured party has to bring a lawsuit against those at fault. In California, there are specific statutes that apply to birth injuries, different from those generally used in medical malpractice cases. For birth injury cases, children generally have eight years to file a medical malpractice claim (until the child’s eight birthday), except in circumstances in which a California county hospital is involved, or a hospital part of a public healthcare district. In some circumstances, the statute of limitations for lawsuits against these types of hospitals can be shorter.
Birth Injury Lawsuit Compensation
Birth injuries can result in substantial monetary recoveries. These lawsuits can recover money not only medical expenses incurred or to be incurred in the future, but also for pain and suffering, and loss of future earning potential for the child, which can be quite sizable. Frequently, money recovered is placed in a trust on the child’s behalf, often administered by the child’s parents. In rare or particularly egregious cases, punitive damages can be obtained—essentially, damages that go to punish the doctor’s notably reckless or intentionally harmful behavior.
Birth injuries may also give rise to other, inter-related legal claims. If a doctor prescribed a pregnant mother medication during pregnancy, and this medication resulted in a birth injury, the injured child may have claims against the drug manufacturer, as well as against the doctor, under a product liability action. Similarly, if a doctor used a medical device during delivery that resulted in an injury, a claim may arise against the device manufacturer as well. A mother or parent may also have their own claims resulting from the birth: for example, if the mother was herself injured during the birth, the mother may be able to bring a separate medical malpractice claim on her own behalf, as well as recover for emotional distress that arose from the child’s birth injury.
Protecting Your Rights and the Rights of Your Newborn
Birth injuries can be a complicated and fact specific area of law, and it is therefore essential for parents to obtain all of the facts relating to the injury, and consult a birth injury lawyer immediately on discovery of the injury.
At the Thompson Law Offices, we understand that your ability to receive the medical care you need, your ability to support your family during your recovery and beyond, and even your peace of mind may depend on receiving the compensation you deserve. Our goal is always to recover the full value of your claim.
If you’re ready to start fighting for your rights, request a free consultation from a birth injury lawyer at Thompson Law Office today.