If you or your newborn sustains a birth-related injury following delivery, you likely have numerous questions. One question that does not always have an easy answer is, “Why did this happen?” A birth injury can be a devastating surprise to new parents, especially when prenatal visits and bloodwork do not reveal any cause for concern.
This guide aims to equip you with the information you need to know about when and how to pursue a birth injury lawsuit for compensation.
Determining Whether You Have a Birth Injury Case
Birth injuries and defects happen, even in pregnancies that are otherwise not remarkable and have no signs of potential issues. The Centers for Disease Control and Prevention estimate that one out of every 33 live births in the United States involves some form of birth defect.
Not every birth defect is unavoidable, however. It’s not always easy to tell the difference between an injury or defect brought about by medical neglect or carelessness and one that could not have been avoided. Some indications that suggest that your or your child’s birth injury is the result of actionable malpractice include the following:
- Absence of concerning prenatal visits or bloodwork
- Lack of known risk factors that elevate the risk of birth injuries and defects
- Premature and uncounseled use of forceps, vacuum suction, and other devices
- Hurried or rushed prenatal appointments that did not provide meaningful information about your health or that of your child
- Lack of attention by doctors and staff during labor
- Absence of communication following your delivery
In addition, certain neurological injuries and disorders, such as cerebral palsy and brachial plexus injuries or palsies, can indicate medical malpractice. These conditions can develop when too much force is applied to the newborn during delivery, and the use of excessive force can suggest that neglect occurred or errors were committed.
Compensation Available Through a Birth Injury Lawsuit
When you file a birth injury case, you and your attorney will make a demand for compensation. The compensation you seek through your lawsuit is meant to address your past and future medical expenses and other costs you are likely to incur due to the injury.
If you cannot return to work or must remain home to care for your child through their entire childhood because of the injury they sustained, this, too, can be compensated.
If your child requires care for the remainder of their life, your lawsuit should also request appropriate compensation for this anticipated expense. Finally, mental anguish and turmoil are common effects of a birth injury, and this loss can be compensated as well.
Punitive damages that punish the doctor for negligent care are rarely awarded, even in birth injury cases. Absent some evidence that the doctor acted with particular cruelty or in a shockingly reckless way, punitive damages will not be available.
What Your Evidence Must Show In Order to Prove Your Claim
When it comes time to present your case in court, your evidence must show that the birth-related injury resulted from medical malpractice or neglect. Both malpractice and negligence refer to care that is objectively unreasonable and substandard, given the circumstances of the case.
Your doctor’s education and background will be considered in making this determination. In addition, the human and mechanical resources available to your doctor to detect and treat issues that developed during the delivery will be considered.
When your doctor was presented with two or more courses of action to address a situation, the decision made by your doctor will be assessed for its reasonableness.
Retaining one or more experts who can look at the available records and determine what options your doctor had available to them is often necessary to prevail in a birth injury case.
Judges and juries are hesitant about second-guessing a doctor’s choices. However, if someone with equal or greater experience can say what your doctor did was not appropriate, courts and juries will be more comfortable awarding you compensation.
Remember, that at the time of trial, two sides of the story will be presented, not just yours. The doctor or healthcare professional who you sue will also have experts to defend their position/conduct, and it is up to a jury to decide which experts they believe.
Timelines and Deadlines in Birth Injury Cases
California has a complicated statute of limitations in birth injury cases. For injuries to the mother, she will have one year from the date of discovery of the injuries, not to exceed three years from the date of birth, to file her lawsuit. However, for injuries to the baby, the baby will have up to their eighth birthday to file a claim for birth injuries to initiate a lawsuit.
Where to Get Additional Help
If you have questions about your rights or believe your child has been injured due to medical malpractice, The Trial Law Offices of Bradley I. Kramer, M.D., Esq. can assist you. Let us use our unique knowledge and experience to help you and your family achieve justice following a birth injury.