Birth Injury

The birth of a child is often the most joyous time in a parent's life, and thankfully most child deliveries go as smoothly as expected, with any difficulties successfully overcome. Unfortunately, complications can arise during both pregnancy and delivery and these problems may result in temporary or permanent injury to the baby. In situations such as these where the harm was avoidable, it is important that the legal rights of both baby and parent are fully safeguarded.

Birth injuries can be caused by mistakes made by doctors or hospitals in a number of different ways which could include excessive force used in the delivery of the baby including the use of forceps; a delay in the performance of a necessary C-section; failing to recognize on a timely basis that the baby is in distress; depriving the baby of oxygen during the delivery; failure to order specific tests during pregnancy and/or not properly interpreting tests; or lack of oxygen to the brain or trauma to the head during labor and delivery.

The facts of cases involving birth injuries to a baby can differ greatly depending on individual circumstances, but most situations can be boiled down to one of two general scenarios.

The first common case involves a doctor/obstetrician's failure to correctly assess or respond to conditions, disorders, and complications during a woman's pregnancy or delivery. For example, this type of case can include a doctor/obstetrician's failure to recognize pregnancy disorders like hypertension; improper use of medical devices such as forceps or vacuum; failure to perform a necessary caesarian section; or improper assessment of a baby's overall health in the womb. A lawsuit arising from these types of situations will usually include a medical malpractice claim against the physicians and other medical practitioners involved, and in some cases a claim against the hospital where the treatment or delivery took place.

The second typical fact situation occurs when, during pregnancy a woman has taken a prescription drug, under the guidance and supervision of a doctor or pharmacist. In such a situation, you may also have a right to legal compensation from the drug manufacturer or pharmaceutical company, and from the pharmacist who assisted you with your prescription.

Birth Injury Or Birth Defect?
When a baby is born, it can be difficult at first to know if certain complications were caused by a birth injury, or were the result of a birth defect. For example, a child born with cerebral palsy may not have been given enough oxygen during labor (making the condition an avoidable birth injury), or the situation may have been caused by an unpreventable birth defect. To help differentiate between the two, an examination of each will be helpful.

Birth Injuries.
A birth injury to a baby occurs due to a complication in the labor or delivery process. It has been estimated that, for every 1000 babies born in the U.S., five will be injured during birth. A birth injury can happen because of an obstetrician's use of an improper medical technique during delivery, or through improper use of a medical device such as forceps or a vacuum. Resulting harm to the baby can vary from a lack of oxygen to severe head injuries.

Remember that not all birth injuries will give rise to a successful legal claim. Complications may occur during delivery that, despite an obstetrician's use of reasonable and competent skill, resulted in unavoidable birth injuries.

Birth Defects.
While birth injuries are generally caused by something that went wrong during the delivery process itself, birth defects involve harm to a baby that arose prior to birth, usually caused by something that happened during or before the mother's pregnancy.

Estimates are that 7% of all babies are born with a birth defect or irregularity, from very minor to severe.

Birth defects can be caused by a number of factors, including heredity and environment (such as a mother's prescribed or illegal drug use). A chemical or agent that causes birth defects in a child is called a "teratogen." A number of drugs have been found to be teratogens, and many of these were initially meant to aid a woman's pregnancy. These teratogens include: Delalutin, a drug administered to pregnant women for the prevention of miscarriages; Bendectin, a medication given to pregnant women, to fight nausea; and Ortho-Gyno, a spermicide.

It is important to remember that the causes of many birth defects are unknown, and in other cases a birth defect can be caused by the mother's own actions during pregnancy, such as alcohol or drug consumption. In these instances your rights to a legal recovery for birth injury may be non-existent or extremely limited.

Birth Injury Matters that We Can Assist.
NationWide Law Group can assist individuals who are involved in a wide variety of Birth Injury matters, including Cerebral Palsy, Erbs (or Brachial) Palsey, and injuries resulting from Defective Pharmaceuticals/Drugs, Medical Malpractice, and Negligence.

If you believe your child or a loved one has suffered a birth injury, please call us at 551-427-6047 for a free legal consultation.

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Proving Your Case.
No matter what the particular facts of your case happen to be, in order to recover for birth injury you will likely need to show that medical providers and/or a pharmaceutical company failed to give you or your baby adequate medical care or medication advice during pregnancy and/or delivery.

Generally, to find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard that will be applied, your attorney will most likely consult with and present the testimony of another medical expert, who is qualified in the same area of medicine as the defendant. This expert will indicate what standard or level of care is commonly met by those recognized in the profession as being competent and qualified to practice. Your attorney will present expert testimony not only as to the applicable standard of care, but also testimony establishing that the defendant failed to meet this standard in your case.

In medical malpractice actions, causation is sometimes a challenge to establish. Specifically, your attorney must show that your health care provider's deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes, the health care provider's deviation from the standard of care may not have caused the plaintiff's eventual injury, and vice versa.

Following are some specific aspects of the two main types of birth injury lawsuits.

Elements Of A Claim - Caregiver's Malpractice.
If you bring a lawsuit against your obstetrician, other caregivers, and/or a medical facility for birth injuries to your child, it will be your attorney's responsibility to show that:
… Defendant (which can include an obstetrician, physician, nurse, medical facility, pharmaceutical company, medical device manufacturer) owed a legal duty of care to your baby (and to you, in some cases);
… Defendant breached that legal duty or standard of care by acting or failing to act in a manner in which a reasonably competent individual would have, under the circumstances;
… Defendant's breach of the legal duty or standard of care caused harm to your baby (and to you, in some instances).

In order to establish that birth injuries were caused by the defendant(s), your attorney will most likely use expert witnesses to comment on and interpret complex medical procedures and issues in your case, including: what to expect during a normal pregnancy and delivery; what could have been expected during the pregnancy in your case; what actually occurred during the pregnancy in your case (including specific description of any complication during pregnancy or delivery); physical and medical evidence of harm to the baby; and opinion as to whether any harm resulted from complication during pregnancy or delivery.

Elements Of A Claim - Mother's Use Of Prescribed Drug.
Your claim for birth injury may be based not on complications during delivery, but on the mother's use of a prescribed drug or medication during pregnancy. These claims are typically brought against pharmaceutical companies, pharmacists, and treating physicians, and are usually based on a theory that the defendant(s) "failed to warn" the mother of the risk of taking the drug in question. If your lawsuit for birth injuries is based on the mother's use of a legally-prescribed drug during pregnancy, you will generally need to show:
… The mother used the drug in question during pregnancy
… The mother's use of the drug in question was prescribed by a physician, pharmacist, or other health care provider
… The birth injury is not likely due to genetics, heredity, disease, or other factor (this is usually accomplished through expert opinion)
… The drug in question is capable of causing birth defects
… The drug in question actually caused the birth injury

Damages.
If a child suffers harm due to an avoidable birth injury, damages awarded as part of a successful lawsuit will typically go to the child, sometimes in the form of a trust.

Recent legislation has limited the amount of certain kinds of damages that a plaintiff can recover in a medical malpractice case. However, a number of categories of damages are available, and many are not limited to a specific amount. These can include compensation for medical expenses, pain and suffering, and loss of future earning capacity.

Where a child is born with a birth defect, the parent may also bring a medical malpractice action against the obstetrician and/or the hospital at which the delivery occurred. The parent may be able to bring a lawsuit for his or her own emotional distress that arose from the baby's birth defect, above and beyond liability to the child.

Getting Legal Help in a Birth Injuries Case.
Any situation involving avoidable birth injuries should be evaluated for a potential legal claim. Due to the complexity of the facts and legal issues involved in your case, discussing your situation with an attorney who is experienced in the area of birth injury and medical malpractice liability is the best way to ensure a thorough evaluation of the likelihood of your claim's success and its potential value. Especially in light of deadlines for filing your lawsuit, meeting with an attorney sooner rather than later to evaluate your case is recommended. NationWide Law Group would be honored to assist you.

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Cerebral Palsy and Erbs Palsy.
Some of the most common birth injuries result from two very different conditions known as cerebral palsy and Erbs (or brachial) palsy. Both cerebral and Erbs palsy are often the result of complications during child delivery itself, though cerebral palsy can sometimes occur before or some time after delivery.

Cerebral Palsy.
Cerebral palsy is the generic term for a number of disorders affecting a baby's brain function and body movement. Cerebral palsy can be the result of an injury to a baby's brain in the womb, during delivery, or some time after birth. It can also be caused by a lack of oxygen flow to a baby's brain during delivery.

Some situations that can cause or contribute to cerebral palsy include:
… A treating physician/obstetrician's failure to recognize the need to provide adequate oxygen to the baby, such as by caesarean section, or unreasonable delay in performing the procedure;
… A mother's use of a harmful prescription drug during pregnancy
… Prolonged bleeding in the baby's brain after delivery, usually due to head trauma
… Extremely premature birth

Symptoms of cerebral palsy in a child may take some time to show up, but can include the following: slow development in terms of rolling over, crawling, smiling, and talking; abnormal or decreased muscle tone, or "floppiness" of limbs; unusual posture; poor co-ordination; involuntary movements; and vision or hearing problems.

Erbs (or Brachial) Palsy.
Erbs (or brachial) palsy occurs in about two out of every 1,000 child deliveries, when a baby suffers injury to the brachial plexus. The brachial plexus is a group of nerves that travel from the spinal cord up the arm, supplying the arms and hands. Erbs palsy happens most often during delivery when excessive pressure is put on the baby's head, neck, or shoulder because of difficulty delivering the shoulder area (known as "shoulder dystocia"). The condition occurs most frequently in babies of higher-than-average birth weight, and can happen when forceps or vacuum devices are used with too much pressure during delivery. The brachial plexus is simply stretched too far until important nerves are torn or ruptured. Symptoms of Erbs palsy can include paralysis or limpness in a baby's arm, limited or no movement in hands and fingers, and loss of sensation in the hands and fingers. Often the baby will simply hold the affected arm very close to the body, and will appear to be unable to move the arm itself, the hands, or the fingers.

Complications from the condition known as Erbs palsy are typically the result of a treating physician/obstetrician's:
… Failure to recognize that a caesarean section should have been performed, based on the baby's size
… Failure to adequately deliver the baby in situations involving "shoulder dystocia"
… Use of excessive pressure on the baby's head, neck, or shoulder during delivery

Erbs palsy usually results in a baby's inability to fully rotate and flex his or her arm, and if a nerve is torn during delivery, permanent nerve damage may result. If no tearing has occurred, bruising and swelling around the nerve should subside and normal movement become possible in a few months. If a baby is diagnosed with Erbs palsy, treatment and therapy such as immobilization of the arm and special exercises may help to improve or eliminate the condition. If the condition is severe or permanent enough, surgery may be necessary to correct the problem.

Responsible Parties in Birth Injury Cases: Who Can Be Sued?
A birth injury or medical malpractice claim is not limited to the conduct of medical doctors, but applies also to nurses, anesthesiologists, health care facilities, pharmaceutical companies, and others that provide health care services.

Hospitals.
Hospitals are corporations that are either public or private entities. In the context of medical malpractice actions, hospitals can be held directly liable for their own negligence, and can also be held "vicariously" liable for the negligence of their employees. Vicarious liability means a party is held responsible not for its own negligence, but for the negligence of another.

Hospital Negligence.
A hospital's medical staff will consist of licensed physicians and other licensed health care providers, such as nurses, physician's assistants, and nurse practitioners. In hiring its medical staff, a hospital must make reasonable inquiries into an applicant's education, training and licensing. If a hospital fails to make reasonable inquiries regarding a member of its medical staff, it might be held liable under the "corporate negligence" doctrine for negligent supervision or retention, if the staff member's negligent care injures a patient. A hospital might be held liable for its own negligence where, for example, it fails to investigate the credentials of an attending physician before granting him/her privileges at the hospital, or where it allows a physician whom it knew, or should have known, was incompetent, to treat patients at the hospital.

Hospitals are also required to ensure that there is a sufficient number of registered nurses on duty at all times to maintain quality patient care. A hospital that fails to do so may be held liable for injuries to patients resulting from a nursing shortage. Another area of potential liability arises when a hospital's employees fail to follow the orders of a patient's private attending physician. Conversely, if a hospital employee finds a private physician's treatment plan to be clearly contraindicated, but fails to make a reasonable inquiry of the physician as to the treatment plan, the hospital could also be found liable.

Finally, hospitals may be held liable for failing to protect patients from harm, adequately perform clinical tests, keep accurate medical records, and properly admit and discharge patients. In the area of admissions, hospitals are generally required to treat seriously injured or ill people on an emergency basis, and the refusal to do so may result in hospital liability. Additionally, federal and state statutes prohibit hospitals from refusing to treat or admit people based on their race, color, religion or national origin, or on their inability to pay for treatment.

Vicarious Liability.
When a hospital employee's malpractice injures a patient, the hospital itself may be held vicariously liable under the legal doctrine of "respondeat superior." Under this doctrine, an employer may be held liable for the negligent acts of its employee, if the employee was acting within the scope of his or her employment when the negligent act or omission occurred. This doctrine is very important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, health care providers such as physicians are considered independent contractors rather than hospital employees, and the doctrine of "respondeat superior" will not be applicable. What this means is, if a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held liable for its own negligence, for example, in granting attending privileges to an unlicensed or incompetent physician.

Finally, in certain situations, a hospital may be vicariously or directly liable for the acts or omissions of contractors it retains to operate emergency rooms and outpatient facilities.

Pharmaceutical Companies.
In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn physicians of the drug's potential side effects or dangers.

A pharmaceutical manufacturer's primary duty is to physicians. Thus, a manufacturer generally will not be liable for a patient's injuries, as long as it adequately informed the physician of all risks associated with a particular drug. As to the ultimate consumer, a pharmaceutical company only owes a duty to ensure that the medication it manufactures will be reasonably safe when used as intended. To ensure a drug's safety, the manufacturer must research the drug's possible side effects and risks before putting it on the market. If the pharmaceutical manufacturer fails to adequately warn a physician of a drug's dangers, however, the drug becomes what is known under product liability law as "unreasonably dangerous," and the manufacturer might be held liable for the failure to provide proper warnings.

In most cases, the prescribing physician is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and assuming he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

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