According to the Centers for Disease Control and Prevention (CDC), of every 1,000 kids, between 6 to 8 will experience a birth injury. That means that approximately 1 in every 9,714 people in the United States are born with a birth injury.
Birth injuries happen when an injury or death results to a baby or mom throughout the birthing process due to medical neglect, malpractice, a mistake, or inappropriate medical facilities policies. Birth injury legal suits fall within medical malpractice and can be pursued if there is negligent prenatal care. Many different things can cause negligent prenatal care, such as failure to determine birth defects, failure to diagnose an illness that could be dangerous to the baby or mother, and failure to identify an ectopic pregnancy, an issue where the embryo connects to the outside of the mom's uterus.
All of these birth injuries have something in common: a medical professional acted negligently, and that neglect was the sole factor for the infant's or mother's injuries. If you cannot prove that the healthcare professional's actions were negligent, then you will not be able to pursue a medical malpractice case.
The two most common conditions that impact a child injured during labor are Erb's palsy and cerebral palsy. These conditions are the most common types of brachial plexus palsy and are neurological conditions that result in the difficulty or absence of muscle control or movement. These can take place when a child's brain, nerves, or nerve fibers are damaged before, during, or right after birth.
The CDC reports that cerebral palsy alone affects 1 in 345 children in the United States, with a greater commonness for babies born preterm or at a low birthrate. The CDC estimates that the lifetime expense of taking care of a person diagnosed with cerebral palsy is $1 million. Cerebral palsy can be separated into two different types of cases: congenital cerebral palsy and acquired cerebral palsy. Hereditary cerebral palsy accounts for 85% - 90% of all cases and takes place when a baby's brain is hurt before or during childbirth. Acquired cerebral palsy accounts for the remaining 10% - 15% of all cases and is caused by brain damages that occur around 28 days after birth.
There are four main categories of cerebral palsy, the most common being spastic cerebral palsy. In fact, the CDC reports that approximately 80% of individuals with cerebral palsy have spastic cerebral palsy and sustain one of three types: spastic diplegia/diparesis, spastic hemiplegia/hemiparesis, and spastic quadriplegia/quadriparesis. Spastic diplegia/diparesis generally affects the legs however can in some cases impact the arms (arms are less affected or not affected at all). Spastic hemiplegia/hemiparesis impacts only one side of the body and generally affects the arms more than the legs. Spastic quadriplegia/quadriparesis impacts both the arms and legs, the body, and the face and is the most extreme type of cerebral palsy.
The other three types of cerebral palsy are dyskinetic, ataxia, and mixed cerebral palsy. Dyskinetic cerebral palsy results in significant trouble managing movement in a person's hands, arms, feet, and legs and make it remarkably hard to sit down and walk. Ataxia spastic paralysis affects a person's balance and coordination, making it tough to walk, make quick movements, or make movements that require control, like writing. Mixed spastic paralysis is a condition where an individual has more than one kind of cerebral palsy, generally with spastic dyskinetic being the most common type.
Erb's palsy is a condition in which damage occurs to the arm's primary nerves, which causes paralysis in that arm. This condition is most regularly caused by challenging or abnormal labor (even c-sections), although it can occur later on in life due to a traumatic injury.
A brachial plexus is a group of five nerves that connect the spine to the arm and hand, and if these nerves stop working because of stretching or tears, the condition is called brachial plexus palsy. Erb's palsy is the most common brachial plexus palsy and involves the upper nerves in the plexus. The most common kinds of injuries that accompany Erb's Palsy are avulsion, rupture, neuroma, and neurapraxia. An avulsion is the most common injury and happens when the nerve tears away from the spine. A rupture takes place when the nerve is torn; however, not from the spine. A neuroma is when a nerve tares but heals and leaves a scar on the tissue; this scar tissue then puts ongoing pressure on the injured nerve and keeps it from conducting signals to the muscles. Neurapraxia occurs when a nerve is stretched but not torn and is the most common type of brachial plexus injury.
If you believe that your child is showing indications of cerebral palsy or Erb's palsy, it is vital to contact your physician or nurse or even see a specialist.
Regrettably, medical malpractice can result in a number of other kinds of birth injuries as well, such as:
If you think that your child has experienced any of the above birth injuries but are not entirely certain, there are particular physical and neurological symptoms to keep an eye out for. These consist of:
The main reason for birth injury malpractice is the irresponsible medical mistakes made by medical professionals before, during, or after labor. Doctors, nurses, and any other healthcare professionals should know how to correctly manage difficult or complex childbirths. However, there are scenarios in which some healthcare professionals do not carry out the anticipated standard of care, and their irresponsible errors cause major injury or, worse, death. Some of the actions that medical professionals can perform that may be considered birth injury medical malpractice include:
A mother can likewise suffer from life-long injuries sustained during childbirth from medical carelessness. The health concerns a mother can face as a result of birth injury malpractice can consist of embolism, diabetes, hemorrhage, pre-eclampsia, infections, uterine rupture, anesthesia complications, and serious vaginal tears.
The injuries detailed above may not always be the result of a medical professional's carelessness, referring to a doctor or nurse. When you are deciding whether or not there is any legal liability, there is a four-step process you can follow under medical malpractice law.
The first step to take after a birth injury is identifying what the appropriate medical standard of care should have been versus the care you or your infant received that caused injuries. For example, if your acting doctor was an obstetrician, the court would compare your obstetrician's actions to those of a similarly certified obstetrician in a setting that was similar to yours. Usually, the injured person's attorney will count on a competent physician to testify on your behalf regarding what the proper standard of care should have been. The court will also consider the medical information that was available to the medical professional at the time of the injury. Courts generally do not use hindsight to hold a doctor liable for something that they could not have sensibly known at the time of the injury.
After the appropriate standard of care is identified, the doctor's actions will be measured against that standard. This is when a healthcare professional will take a more extensive look at what was done during the labor and childbirth procedure and what would have been done by a similarly-skilled healthcare professional, based upon all of the information that was used at that time.
Next, the court will choose whether they believe the healthcare specialist's discrepancy from the standard of care was the legal factor for damage to the mother or her child. An example of this would be if the acting physician did not acknowledge problems throughout vaginal childbirth and ordered a c-section. But the concern is, was the physician's mistake the sole reason the infant was stillborn? If further investigation proves that the child would have passed no matter the doctor's mistake, then there would be no legal causation, showing no medical malpractice liability.
The final step will involve acknowledging and determining the injuries the mother and/or baby suffered and any other losses that occurred from the doctor's neglect. This will then identify the compensation awarded to the injured person. Birth injury compensation can help cover assistive devices, psychological damages, loss of revenue, medications, special education programs, therapy, medical costs, transportation modifications, and more.
A birth injury medical malpractice claim is not limited to the negligent actions of doctors but also nurses, healthcare facilities, pharmaceutical companies, anesthesiologists, and other providers that offer health care services.
Whether private or public, hospitals are an additional entity that you can take legal action against. When it comes to medical malpractice, healthcare facilities can be held directly liable for their own negligence or held "vicariously" liable for the neglect of the individuals that they employ (vicarious liability describes being held liable for the actions of another person).
When hiring their employees, hospitals must make any/all reasonable inquiries into a candidate's background, including their training, education, and licensing. If a hospital does not check these inquiries regarding a medical professional they hire, it may be held accountable under "corporate negligence" for the negligent supervision or retention if one of their worker's irresponsible actions injuries a patient. A hospital may also be held liable for carelessness if it does not investigate the credentials of an acting doctor prior to allowing them privileges at the hospital (such as performing surgeries) or where they knew or should have known that the doctor they hired was incapable of treating patients at that healthcare facility.
Hospitals are also required to have a sufficient amount of nurses on duty at all times in order to maintain quality care to patients. If a hospital avoids doing so, it can be held accountable for any injuries that a patient suffers due to the lack of nurses. Another area of liability can emerge when a hospital discovers a private physician's treatment plan to be short of the standard of care that should be given but fails to investigate the physician.
Lastly, hospitals can be held liable for failing to protect a patient from harm, correctly performing clinical tests, keeping updated medical records, and properly admitting and discharging patients. If a hospital does not do any of the things listed above, it will more than likely be held responsible for medical negligence.
When a person that a medical facility employs medical negligence leads to injuring a patient, the hospital itself can be held vicariously liable under the legal doctrine of "respondeat superior." This legal doctrine states that a company can be held liable for the irresponsible acts of its employees if the employee was acting within the scope of their employment when the carelessness took place.
It's essential to keep in mind that some doctors are considered independent contractors, suggesting they are not hospital staff members, and the doctrine of "respondeat superior" will not apply. This basically indicates that if a doctor that is an independent contractor carries out a careless act while dealing with a patient in a hospital, that hospital cannot be responsible for that physician's malpractice. Nevertheless, the hospital can be held accountable for its own negligent acts, like granting privileges to an unlicensed or incompetent doctor. There are also some instances where a hospital can be held vicariously or directly responsible for the actions of its independent contractors to run an emergency clinic or other medical center.
In some birth injury cases, a pharmaceutical producer can be held legally responsible when a drug causes a patient's injuries, however only when the manufacturer failed to warn the proper personnel of the side effects or threats of the drug.
When giving warning of potential side effects or risks, a pharmaceutical company's primary duty is to medical professionals. Generally speaking, this implies that a pharmaceutical producer will more than likely not be held accountable for a patient's injuries as long as it holds up its duty of informing the physician of the adverse effects and risks connected to the drug. The only duty a pharmaceutical company has is to make sure that the drugs it produces will be reasonably safe when it is used in the way it was intended. In order to do this, the producer needs to do research for possible adverse effects and threats prior to the drug being put on the market. If the pharmaceutical business fails to do so and does not warn medical professionals of the drug's threats, the drug then becomes "unreasonably unsafe" under product liability law, and the producer may be held accountable for the failure to provide adequate warnings.
Keep in mind that the doctor who prescribes a patient this medicine is considered a "learned intermediary." This means that because of their extensive medical knowledge and presuming they were warned of the possible side effects and threats from the pharmaceutical manufacturer, they are in the best position to decide whether a specific drug or device is appropriate for a patient. Therefore, a medical professional has the main responsibility of warning a patient of the risks and side effects a medication or device has that they prescribe.
