If a doctor, nurse, or other medical practitioner commits medical malpractice, the injured party can be awarded various damages:

  • Compensatory/General Damages for pain and suffering
  • Special Damages for pecuniary losses – specific expenses including past and future medical expenses and loss of income
  • Punitive Damages to punish the defendant for willful or wanton misconduct

In most situations, damages are awarded to the actual injured party. In birth injury cases, the primary injured party is the newborn child. However, an injury that occurs at birth is not only traumatic to the newborn child but the parents as well. As a result, courts have held that in certain circumstances parents can also recover damages for medical malpractice that results in birth injuries.

What Damages Are Recoverable by Parents?

In most jurisdictions, only special damages for pecuniary losses can be recovered, including medical expenses and loss of contributed earnings. While the courts seem to recognize that pecuniary expenses are not necessarily reflective of the actual suffering parents endure, only in very rare instances have courts awarded compensatory damages to parents.

Damages for emotional distress are available to parents. If a parent suffers emotional distress as a result of witnessing the infliction of pain, suffering or an injury on a child, the courts have increasingly allowed for damages. However, in most jurisdictions that provide this recovery, actual observation is required to establish emotional distress.

What Are the Elements to a Birth Injury Claim?

In order to bring a claim for a birth injury caused by medical malpractice, you need to prove:

  • Defendant owed a legal duty of care to your baby
  • Defendant breached that legal duty or standard of care by acting or failing to act in a manner that a competent medical staff provider would have acted
  • Defendant’s breach of duty caused harm to your baby
  • Your baby suffered damages

If the baby does not survive as a result of a birth injury, the recovery is governed by the remedy principles of a wrongful death suit.

How Do I Prove a Birth Injury Claim?

In order to establish that the birth injuries were caused by the defendant,your personal injury attorney will most likely use medical experts and witnesses to overview the medical procedures used by the medical providers to figure out if it was normal or unordinary.Your attorney will also interview experts to see what to expect in a normal pregnancy and delivery and what actually occurred. Also, the treatments, drugs, and tools used will be examined to determine whether it was the actual cause to your babies injuries.

What If the Baby Survives but Suffers Brain Damage?

In cases where the baby survives but suffers brain damage as a result of the birth injury, the baby still recovers full damages, with consideration for lifetime loss of earning capacity. Often this is quite difficult to determine but the courts have primarily included this as a significant award in the recovery.

What Happens If the Mother Suffers Injuries during the Birth?

Mothers can also suffer injuries if a medical practitioner is careless. Any of the following can qualify as birth injuries:

  • Vaginal Tear
  • Fissures
  • Infections
  • Lack of Anaesthetic Awareness

Are There Any Defenses?

Any patient who wishes to bring a case against a medical practitioner should be aware that the practitioner can claim that the birth injury was a birth defect, or a pre-existing condition in the mother or the family. The infant’s development might not have been complete. There could have been certain genes in the family which could have lead to complications. Since a practitioner only has to provide reasonable care, care which might be expected from a competent practitioner with the same level of education and experience, not every condition can be expected to be detected and treated.

Do You Need an Attorney?

If you, or a loved one, have been injured by medical malpractice, you should speak to experienced birth injury lawyer immediately to learn more about the value of your case, who can be held liable, and what types of recoveries are available to you.