Birth Injury

The day that a baby is born is often a happy time for parents, but sometimes complications arise that cause significant stress. When a baby is hurt during the delivery process, his or her injuries can be permanent, affecting the child for years or even the rest of his or her life. The parents may need to pay for special care or rehabilitation for the baby that they never anticipated. For parents who lack the income to pay for the extra care, a medical malpractice lawsuit may be the only way to proceed.

Initially, it may be unclear whether a baby has a birth injury or a birth defect. A birth injury is the result of actions taken or not taken by a doctor and her staff, and it is preventable. A birth defect, on the other hand, is not preventable. It would not have mattered what the physician did or did not do. About 7% of babies are born with birth defects, and they can range from quite minor to severe. Birth defects are usually created during the pregnancy or before it, resulting from a combination of heredity and environment. For example, they may be caused when a woman drinks during pregnancy.

Birth injuries typically arise from a doctor's failure to respond properly to a condition that arises during delivery or a doctor's failure to provide appropriate prenatal care. With regard to a doctor's failure to respond to a condition of delivery, there are a number of common errors that can happen.

A doctor delivering a baby may fail to perform a necessary cesarean section, may fail to respond adequately to signs of fetal distress, may improperly assess the baby's health, or may use forceps or a vacuum improperly. Improper use of forceps can result in head injuries or brain damage. A mother or father may be able to file a medical malpractice lawsuit against the doctor and any other medical practitioners involved, as well as the hospital where the delivery takes place.

Examples of a doctor's failure to offer appropriate prenatal care may arise when a physician prescribes a drug that adversely affects the baby or fails to diagnose a condition that may give rise to complications during the delivery. For example, an ob-gyn who fails to order tests for gestational diabetes may be held responsible if the untreated diabetes causes an unexpected complication during labor that results in injury. Similarly, a doctor's failure to diagnose a mother's genital herpes could give rise to an injury in the baby.

Elements of a Birth Injury Case

A plaintiff suing for birth injuries will have to prove that the defendant owed a legal duty of care to the baby, the defendant breached the duty of care by failing to act as a reasonably competent medical professional would have in the same circumstances, and the breach was the actual and proximate cause of the harm to the baby. In most cases, it is necessary for a plaintiff to retain an expert witness to review the records and determine what should have happened during the pregnancy to avoid the injuries. The expert will also present opinions about the harm that resulted from complication during the pregnancy or delivery.

What if the claim arises out of a mother's use of a prescribed drug or teratogen during pregnancy? Generally, these claims are brought against the medication manufacturer and pharmacist, in addition to a treating physician. They are based on a failure to warn theory. In that case, a plaintiff will need to show the mother used the drug during pregnancy, the mother's use of the drug was prescribed by a physician, pharmacist, or another health care provider, the birth injury probably is not because of genetics or heredity, the drug is capable of causing birth defects, and the drug actually caused the birth injury.

Damages awarded to a child for a birth injury may be paid in a structured settlement or a trust. However, the parent may also bring a medical malpractice lawsuit or a lawsuit for emotional distress arising from the child's injury.