Birth Injury Damages

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 What Is Medical Malpractice?

Medical malpractice occurs when a doctor, medical professional, or healthcare organization falls below the standard duty of care that is required when managing, diagnosing, or treating a patient. This failure results in an injury to that patient; this deviation from the standard duty of care that is required of all medical professionals generally results from an act of negligence.

Medical malpractice law allows an injured patient to bring a claim against a negligent medical professional in order to recover damages for the harms that were caused by their substandard conduct. Whether a medical professional can be held liable for a patient’s injuries will largely depend on the facts of the case, as well as the various rules and requirements of medical malpractice laws that are enacted in a particular state. Under some circumstances, the standards and regulations for medical malpractice can vary between different jurisdictions within the same state.

Medical malpractice liability refers to who should be held legally responsible for a patient’s injuries. Generally speaking, this party is generally the one who breached their duty of care and as such, was the actual cause of the patient’s injuries. However, figuring out exactly who was liable can be a challenge due to the fact that medical malpractice liability frequently involves more than one party.

An example of this would be how it is possible to split medical malpractice liability between a doctor and their nurse when their combined negligent conduct resulted in a patient’s injury. If improper instructions were provided, or if one medical professional failed to correct the other, there may be a chance that both parties can be held liable for their mistakes.

Additionally, the organization itself, such as a hospital organization, can sometimes be held liable for medical malpractice. This is especially true in cases in which a medical organization’s overall policy or quality of care for patients falls below the necessary duty of care standard.

Some of the parties who may be held liable for medical malpractice include:

  • General practitioners;
  • Nurses;
  • Hospitals;
  • Surgeons;
  • Dentists;
  • Psychiatrists;
  • Chiropractors;
  • Gynecologists; and/or
  • Clerical staff.

Some of the most common examples of medical malpractice claims include:

  • Improperly diagnosing or failing to diagnose a patient;
  • Prescribing the incorrect treatment or medication;
  • Operating on the wrong body party, such as amputating their left leg instead of their right leg;
  • Failing to follow up with a patient after they receive a serious procedure;
  • Prematurely discharging a patient before they have sufficiently recovered;
  • Leaving behind medical equipment during a surgery, such as instruments or sponges;
  • Failing to provide information or obtain informed consent before the patient underwent surgery; and
  • Inputting erroneous data into a patient’s medical chart, which causes harm to the patient, such as failing to note specific medication allergies.

What Is A Birth Injury?

A birth injury is a considerably serious example of medical malpractice. Birth injuries can affect either the baby or the birthing parent, and are caused by complications during pregnancy or birth. These injuries may permanently harm the baby or the parent. If these injuries were caused by the negligence or actions of a medical professional, or if the harm was otherwise avoidable, there may be a case for the injured parties.

A common cause of birth injuries would be a doctor’s failure to assess or respond to complications or disorders during the pregnancy or birthing process. Another common cause of a birth injury would be when the pregnant person is given a prescription drug that ultimately harms the baby, or adversely affects the pregnancy. It is important to note that a birth injury is different from a birth defect, which is not caused by medical professionals.

Some examples of the most common birth injuries include:

  • Head injuries;
  • Damage caused by lack of oxygen;
  • Cerebral palsy;
  • Erbs palsy;
  • Deafness;
  • Blindness;
  • Autism; and
  • Down Syndrome.

Can Damages Be Recovered In A Birth Injury Lawsuit?

To reiterate, if a doctor, nurse, or other medical practitioner commits medical malpractice, the injured party can be awarded various damages. Some examples of such damages include:

  • Compensatory or general damages for pain and suffering;
  • Special damages, which are specific expenses including past and future medical expenses as well as loss of income; and
  • Punitive damages, which are intended to punish the defendant for willful or wanton misconduct.

Under most circumstances, damages are awarded to the actual injured party. In cases involving birth injuries, the primary injured party is the newborn child. However, an injury that occurs at birth is not only traumatic to the newborn child, but to the child’s parents as well. Because of this, courts have determined that in specific circumstances, parents can also recover damages for medical malpractice resulting in birth injuries.

The majority of jurisdictions have determined that only special damages for pecuniary losses can be recovered, including medical expenses and loss of contributed earnings. Although the courts generally recognize that pecuniary expenses are not necessarily reflective of the actual suffering that parents endure, it is considerably rare that courts have awarded compensatory damages to parents.

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

How Do I Prove A Birth Injury Claim?

In order to assert a claim for a birth injury that is caused by medical malpractice, you must prove that:

  • The defendant owed a legal duty of care to your baby;
  • The defendant breached that legal duty or standard of care by acting or failing to act in a manner that any other competent medical staff provider would have;
  • The defendant’s breach of duty caused harm to your baby; and
  • Your baby suffered damages as a result of the harm.

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

In order to establish that the birth injuries were actually caused by the defendant, you may need the testimony of medical experts and witnesses in order to overview the medical procedures that were used by the medical providers. The goal of this is to determine if it was common or unordinary. They may also be interviewed in order to state what should be expected in a normal pregnancy and delivery, as well as what actually occurred. The treatments, drugs, and tools that were used may also be examined in order to determine whether it was the actual cause of your baby’s injuries.

When 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. This is generally difficult to determine, but the courts have generally included this as a significant award in the recovery.

It is imperative to note that the birthing parent can also suffer injuries if a medical practitioner is careless. Any of the following can qualify as birth injuries experienced by the birthing parent:

  • Vaginal tear;
  • Fissures;
  • Infections; and
  • Lack of anesthetic awareness.

Are There Any Legal Defenses To Birth Injuries?

Any patient who wants to bring a case against a medical practitioner should be aware that the practitioner may claim the following defenses:

  • That the birth injury was a birth defect, or a pre-existing condition in the birthing parent or the family;
  • The infant’s development might not have been complete; and
  • There could have been specific genes in the family which could have led to complications.

Because a practitioner only must provide reasonable care which might be expected from a competent practitioner, with the same level of education and experience, they may assert that not every condition can be expected to be detected and treated.

Do I Need An Attorney For Birth Injury Damages?

If you have been injured by medical malpractice, you should consult with an experienced birth injury lawyer immediately. Your attorney can determine what your legal options and rights are according to your state’s specific medical malpractice laws and will also be able to represent you in court, as needed.


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