Birth Injury FAQ Related to Lawsuits and Claims
Here are some of the frequently asked questions about birth injuries and their legal issues that we are commonly asked.
You may be entitled to financial compensation for the birth injury. This could be substantial as your child may require a lifetime of care.
- What Is a Birth Injury?
- What's the Difference Between a Birth Defect and a Birth Injury?
- Are Birth Injuries Preventable?
- What Are the Causes of Birth Injuries?
- What Are the Different Types of Brain Damage During Birth?
- What Kinds of Birth Injuries Are There?
- When Is a Birth Injury Diagnosed?
- How Are Birth Injuries Treated?
- Is a Birth Injury Medical Malpractice?
- How Common Are Birth Injuries Such as Cerebral Palsy?
- Are Most Birth Injuries Severe?
- How Does a Jury Determine if the Doctor Was at Fault for the Birth Injury?
- Can You Sue a Hospital for a Traumatic Birth in Medical Malpractice Cases?
- HIn a Lawsuit, How Do I Prove a Case?
- How Is Compensation Calculated for These Types of Injuries?
- What Experts Does a Lawyer Need to Consult With?
- Will My Child's Birth Injury Lawsuit Go to Trial?
- How Long Will My Case Take?
- What Happens to the Money from a Birth Injury Settlement?
- Can I Afford an Attorney for a Birth Injury Claim?
- How Long Do I Have to File This Type of Case?
What Is a Birth Injury?
This type of injury occurs during the process of childbirth, usually when the baby is in transit through the birth canal. It is the result of pressure being placed on the baby or some sort of cutoff of oxygen. Injuries range from minor to severe. In most cases, the doctor has made a mistake in pregnancy or delivery.
What's the Difference Between a Birth Defect and a Birth Injury?
No. A birth defect is usually the result of the baby’s genetics that are set prior to birth. It would happen regardless of what occurred during the birth. Birth injuries occur because of something that happened during the birth.
It would have never happened had something not gone wrong during the birth. In addition, injuries could also result from something that went wrong during the pregnancy, such as a mistake in treatment or an infection. You can sue for a birth injury, but you cannot sue for a birth defect.
Are Birth Injuries Preventable?
In most cases, yes. The obstetrician should be monitoring the mother during the pregnancy as part of reasonable and normal medical care. They should spot factors that could cause danger to the baby inside the womb or could lead to a difficult delivery.
The same goes for the actual labor and delivery process. Doctors should be on the lookout for signs of maternal or fetal distress. One common cause of these injuries is when a doctor waits too long to perform a caesarean section procedure when the baby is deprived of oxygen or is otherwise in distress. In these cases, operating and delivering the baby quickly before the baby is injured would prevent or minimize the birth injury.
What Are the Causes of Birth Injuries?
There are a number of things that doctors could do wrong that could cause injuries. Here are several:
Failure to perform a cesarean section - when it appears that the baby is in any sort of distress or danger, the doctor does not have much time to operate to deliver the baby. The failure to perform a prompt C-section could result in a cutoff of oxygen or other serious injuries.
Failure to use a heart monitor - The doctor should place a monitor on the child’s heart to monitor for any sort of distress if there are any risks to the delivery whatsoever.
Forceps and vacuum errors - The medical professional may feel the need to use medical instruments such as a vacuum or forceps to deliver the baby. Doctors may use these instruments, but they must be highly skilled and trained in them. If they use the wrong technique, it could cause serious injury. There are times when the physician is better off performing a C-section rather than taking the time to use these instruments.
What Are the Different Types of Brain Damage During Birth?
There are four types of brain damage during birth that could cause injuries. They are:
Hypoxic ischemic encephalopathy - Essentially, this is when the baby has a stroke. Oxygen is cut off to the brain during the delivery, and it can destroy brain cells and tissue. This is the type of damage that occurs most often during childbirth, and it is what causes cerebral palsy.
Periventricular leukomalacia - This is when blood flow to part of the brain is interrupted. This usually results from some sort of problem with the placenta, including injury or infection. This can cause loss of brain tissue.
Intracranial hemorrhage - This is bleeding in the brain, and it is caused by an infant’s stroke. This injury usually happens when the mother has a medical condition such as high blood pressure that causes fetal distress.
Cerebral dysgenesis - This type of injury happens when there is damage to the baby’s head during delivery. This can also occur when the baby’s head does not properly form during pregnancy.
What Kinds of Birth Injuries Are There?
Here are some common examples of these types of injuries:
Cerebral Palsy - When there is damage right before or during birth, the brain loses the ability to control muscles and the nervous system. This disease varies in severity. The best outcome is that the baby grows up to be independent and lives a normal life. However, serious cases could require permanent care and could severely impede the body’s function.
Erb’s Palsy - This is a type of brachial plexus injury when there is shoulder dystocia and damage to the nerves. This happens during a difficult delivery where the baby has difficulty making it through the birth canal. While some cases are more mild and do not last for the long-term, other babies may have reduced use of the limb for their lifetime.
Hypoxic Ischemic Encephalopathy - This is a brain injury caused by a disruption of oxygen to the brain. It does not take long for an oxygen interruption to cause permanent brain damage. This could result from the following:
- Umbilical cord being wrapped around the neck or other damage to the cord
- Placenta injuries
- Ruptured uterus
HIE could occur in one of every 300 births. About half of the babies who suffer HIE will sustain some long-term injury.
Hematoma - Trauma to the infant’s head during childbirth could cause brain damage. Some of these may not result in permanent injury, although some may require immediate life-saving surgery.
When Is a Birth Injury Diagnosed?
The first sign of an injury may come right after delivery when the doctor gives them an Apgar score. They may already be showing signs of the injury. In addition, a doctor may take an umbilical cord blood gas analysis to see whether they suffered HIE or any other injury. They can also take a CT scan or an MRI. This battery of tests could begin to reveal whether your child has suffered a birth injury. Then, the doctor could give a prognosis based on the severity of the injury.
Not all injuries are diagnosed immediately after the baby is born. Some children begin to show symptoms over time during the first year or two of their life. Then, their pediatrician would give them a battery of tests to diagnose the injury.
How Are Birth Injuries Treated?
The nature and extent of birth injury treatment depend on the severity. Some injuries are so severe that they are beyond the reach of therapy and rehabilitation. Instead, the child just needs continuous care to manage the symptoms. However, other types of injuries could be treated, and the child could make some recovery. Here are some of the treatments:
- Physical therapy - This could help children dealing with muscle weakness and Erb’s palsy. It may also help manage some of the effects of cerebral palsy.
- Occupational therapy - Children who are unable to perform daily tasks or who lack gross motor coordination may see their situation improved with occupational therapy.
- Medications - These can be used to manage inflammation and some of the pain that the child feels.
- Surgery - This could relieve the pressure when the infant is suffering from a subdural hematoma or bleeding on the brain.
Is a Birth Injury Medical Malpractice?
Since birth injuries are preventable, it follows that they would be considered medical malpractice and the result of medical negligence. This could give rise to a lawsuit for birth injury. The usual standard for malpractice is that the doctor must provide the care and act as a reasonable doctor would under the circumstances. Here, the negligence would be that the doctor failed to properly monitor the child or the mother, and it caused the injuries.
The malpractice could also be in the delivery process itself. Some injuries are caused by a “rough delivery” where the doctor fails to use the appropriate level of care to deliver the child. The doctor could have pulled the baby out in a way that caused injury or used an instrument such as a vacuum or forceps that injured the baby. These situations give rise to a birth injury lawsuit because the doctor breached the standard of care.
How Common Are Birth Injuries Such as Cerebral Palsy?
The estimates for the number of injuries in the U.S. vary. On the low end, there are some estimates that there are approximately two injuries for every 1,000 live births. On the higher end, there are other estimates that place the number of injuries between 6-7 for every 1,000 births.
However, statistics only tell part of the story. Each affected family is left to deal with injuries that could last an entire lifetime. Not only does it affect the injured child, but it also impacts the entire family that must care for the child.
Are Most Birth Injuries Severe?
There are some more minor injuries that are treated in the short-term, and the child would go on to live a fully normal life. However, “minor” injuries comprise only a small percentage of birth injuries. Roughly 1 in every 5 of these types of injuries is less serious.
The rest of these issues are more major ones that require serious care. Even in the category of more serious injuries, some are things such as broken bones that could heal over time. However, the rest could involve brain or nerve damage.
How Does a Jury Determine if the Doctor Was at Fault for the Birth Injury?
Even if the doctor knows that they are to blame for a birth injury, they will never come straight out and tell you. There is too much at stake in terms of legal liability.
You may notice that the doctor and hospital become very tight-lipped after that as if they have been speaking to their own lawyers. This is the healthcare industry at work. However, with a lawyer on your side, it would be up to the jury to determine if a doctor's negligence should require financial compensation.
The only way that you could know that the doctor's actions are to blame is to consult with a birth injury attorney. In most cases, the fact that a birth injury occurred is evidence of a medical mistake, but you need someone to connect the dots and prove that the doctor was negligent.
A birth injury lawyer will review your case and consult with experts and reach an opinion about whether you have a potential case against the health care provider and hospital.
Can You Sue a Hospital for a Traumatic Birth in Medical Malpractice Cases?
Yes. Not only could you sue the doctor who was responsible for the injury, but you could also file a birth injury lawsuit against the hospital where they have privileges.
If negligence occurred in the hospital, the hospital would also be liable for what the doctor did. This is the best thing for families because the hospital could have an even larger insurance policy and more assets to go after in a judgement. This is especially important when your case reaches into the millions of dollars.
In a Lawsuit, How Do I Prove a Case?
Ultimately, you would need to reconstruct the circumstances leading up to the injury for the jury to determine whether the doctor acted reasonably under the circumstances.
The doctor would need to explain the choices that they made and how they reached their care decision. Your attorney would use expert witness testimony to portray the doctor’s decisions at the time as unreasonable.
In the end, the jury would compare what the doctor did to what a reasonable doctor would have done under the circumstances. This would require that you introduce evidence of what accepted medical practices and standards are. Most of your evidence would consist of expert testimony.
How Is Compensation Calculated for These Types of Injuries?
Birth injury compensation will factor in the total amount of damages that both the child and the family will sustain over the course of the child’s entire lifetime. You are entitled to receive everything that birth injury took out of your pocket and will cost you in the future along with payment for what they will endure over the course of their entire lifetime. Here is what could be included in damages:
- The cost of medical and other care for them for the course of their lifetime
- The cost of any special education necessary because of the birth injury
- Lost wages for both the child over the course of their lifetime and the parents who take off from work to care for them
- Pain and suffering for them
- Wrongful death if they die from their birth injury
Given the extent of the injury, settlements and jury awards are usually considerable. It is extremely important to not settle your case for less than it is worth because it is your one chance to receive compensation that needs to last to take of them for the rest of their life.
What Experts Does a Lawyer Need to Consult With?
The major type of expert necessary for your case is a medical expert who can give an opinion about the care that the doctor provided. Not only do you need to prove that the doctor was at fault, but you must also detail your damages in the case.
Since these types of injuries could require intensive care for an entire lifetime, you would also need a life care expert to testify about what would be necessary for the child both now and in the future.
Because the costs could vary over the course of a lifetime, you would also need an economic expert to detail how the cost of care could increase in the future. These cases present challenges because you are seeking damages now for many years into the future.
Will My Child's Birth Injury Lawsuit Go to Trial?
Most likely, your case will not go to trial. Hospitals and their insurance companies are very good at knowing which cases they need to settle before they get to a jury. They know that they are dealing with very sympathetic plaintiffs who have the potential to win a large jury award.
Therefore, they will try to settle the case without the need for a trial. We cannot guarantee that the defendant will settle your case. However, if your case was strong enough that a lawyer has accepted it, chances are that the defendant will explore a possible settlement. After all, they are trying to manage their own risk too.
Very few personal injury cases will ever go to trial. Most are resolved before that stage. However, many defendants do not get really serious about settlement negotiations until the eve of trial.
How Long Will My Case Take?
It is difficult to know how long your case will take at the outset. Much of this depends on the defendant and how motivated they are to settle your case and how serious they are in negotiations.
At the end of time frames, medical malpractice lawsuits could take years. The legal process itself is not fast, and it could be years before your case even reaches trial. Add in a possible appeal if the doctor loses, and you could be looking at up to a decade. However, those are the rare cases.
The best guesstimate that we give clients is that your case could take between 1-3 years. There are some rare cases where the defendant settles in a few months, but you also need to be very wary of quick settlement offers because they rarely pay you what you legally deserve.
What Happens to the Money from a Birth Injury Settlement?
Since they are the victims of medical malpractice, the money would be set aside for their care. It is usually placed into a trust dedicated to the child’s needs that could cover things like their medical care.
There are some cases where the parents may be entitled to their own damages from a birth injury. For example, they could suffer emotional distress or may lose wages when they cannot work because they are taking care of their family. In that case, they would directly receive that part of the damages.
Can I Afford an Attorney for a Birth Injury Claim?
Yes. The question is more whether you could afford not to hire a birth injury attorney since you will be dealing with a complex case and a large potential damage award.
In terms of hiring our law firm, you would not need to write any check upfront. You would not have to write us a check at any point during our attorney-client relationship. We are only paid if your case is successful, meaning you have received a jury verdict or settlement.
Then, we are paid a percentage of the proceeds from your case that is specified ahead of time in our representation agreement. This is also known as a contingency arrangement, and it makes it affordable to hire an attorney.
How Long Do I Have to File This Type of Case?
Since a birth injury case is a medical malpractice case, you would need to file the statute of limitations for this type of birth injury claim. In Illinois, this deadline for a lawsuit for birth injuries from medical negligence is two years from the date that you discovered the injury. If the child’s birth injury does not become apparent until after they were born, you have two years from the date of the diagnosis when you first learn of your child's birth trauma.
It is crucial to contact an attorney immediately after you realize that you have a possible claim. The lawyer could advise you on how to deal with the doctor and hospital.
In addition, these cases take time to investigate and develop, and you do not want to be coming up on the statute of limitations with time running down to find an attorney. Please call Rosenfeld Injury Lawyers at (888) 424-5757 to schedule your free initial consultation.
- What can I Expect With a Birth Injury Lawsuit? (Progression of a Birth Injury Lawsuit in the Court System)
- What Situations During Labor & Delivery Can Cause an Injury to a Child?
- When Should I Contact an Attorney to Evaluate my Child's Birth Injury
- What Type of Compensation Can I Recover for my Child in a Birth Injury Lawsuit?
- How Do You Prove a Doctor’s Negligence Resulted in a Birth Injury?
- What Constitutes a 'Birth Injury' in a Legal Context?