Damages in a Birth Injury Case

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 What Is Medical Malpractice?

Medical malpractice occurs when a doctor, other medical professional, and/or healthcare organization falls below the standard duty of care that is required of them when managing, diagnosing, or treating a patient. This lapse in care results in an injury to that patient. Additionally, a deviation from the standard duty of care that is required of all medical professionals is generally associated with an act of negligence.

Medical malpractice law is what enables an injured patient to bring a claim against a negligent medical professional. It also allows them to recover damages for the harms that were caused by the medical professional’s substandard conduct.

Whether a medical professional can be held liable for a patient’s injuries will generally depend on the facts of a specific case, as well as the various rules and requirements of medical malpractice laws that are enacted in each 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 which people or organizations should be held legally responsible for a patient’s injuries. Generally speaking, this is generally the party who breached their duty of care and was the actual cause of the patient’s injuries. However, determining exactly who was liable can be challenging 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 divide medical malpractice liability between a doctor and their nurse or other medical personnel when their combined negligent conduct led to a patient’s injury. If improper instructions were provided, or if one medical professional failed to correct the other when they were aware of a mistake, 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 specific examples of parties who can be held liable for medical malpractice include, but may not be limited to:

  • 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 after a patient has received a significantly serious procedure;
  • Prematurely discharging a patient before they have sufficiently recovered;
  • Leaving behind medical equipment, such as instruments or sponges left inside a patient, during a surgery;
  • Failing to provide information or obtain informed consent before a patient underwent anesthesia for surgery; and
  • Inputting erroneous data into a patient’s medical chart, such as listing medical allergies, then causing harm to the patient.

What Is A Birth Injury? Is A Birth Injury Different From A Birth Defect?

Birth injuries, or congenital defects, refer to human errors that can be preventable and avoided. Some of the most common types of congenital defects include:

  • Failing to perform or schedule an emergency cesarean section (C-section);
  • Improperly pulling or twisting the infant during delivery;
  • Improper use of medical tools during delivery; and
  • Giving the wrong amount or type of medication.

It is important to note that birth injuries are not the same as birth defects. Birth defects are linked to the genetic DNA of a child, and include things such as a cleft palate or a heart murmur. Although the causes of birth defects are generally unknown, a significant percentage of birth defects are caused by chemical exposure and other environmental causes. The pregnant person’s exposure to toxic substances and chemicals while at home and at work can cause birth defects. Chemical exposure to the following can increase the likelihood of delivering a baby who has birth defects:

  • Pesticides;
  • Fungicides;
  • Lead;
  • Heavy metals;
  • Paints; and
  • Other toxic substances.

Birth defect lawsuits have been filed by pregnant people who are working in:

  • Beauty salons;
  • Paint factories;
  • Manufacturing facilities;
  • Metal cleaning operations; and
  • The agriculture industry.

Additionally, substances and chemicals that contained in medications negligently prescribed by doctors may cause birth defects. Chemicals that have contaminated the air or groundwater in a community may also be responsible for birth defects.

There is no specific type of birth defect that automatically gives rise to legal action. However, some of the most common types of birth defects include:

  • Cerebral Palsy;
  • Cerebral Hypoxia, or oxygen deprivation;
  • Cleft lip and cleft palate;
  • Spina Bifida;
  • Erb’s Palsy;
  • Brachial Plexus Dysfunction;
  • Congenital Heart Defect; and
  • Brain damage.

If a child suffers from one or more of these conditions, it is possible that the carelessness of a third party could have partly caused the condition. Additionally, some of the above may result from congenital defects. While the difference between a congenital disability and a birth injury may seem minor, the distinction can have a significant effect on resulting litigation.

Can Parents Recover A Damages Award For Birth Injury Cases? How Does The Death Of A Child Affect The Damages Awarded In Birth Injury Cases?

Congenital defects can cost upwards of millions of dollars for treatment during the life of the child. Many families seek financial help from grants or government assistance. However, if medical malpractice is what caused the injuries, your family may seek damages from the responsible healthcare provider.

As damages are available for medical negligence cases, the damages that are generally available in birth injury cases specifically include:

  • Funeral Expenses: These damages are only available if the child or the birthing parent dies during childbirth;
  • Medical Expenses: These will vary according to the extent of the child’s injury, as well as the amount of time that was spent in the hospital; and/or
  • Non-Economic Damages: Many states also allow parents to recover for non-economic damages, such as pain and suffering or loss of consortium. When parents sue for loss of consortium, the damages are based on an estimate of the money value of a child’s love and companionship.

Generally speaking, if a child dies from a birth injury, damage awards decrease. This is because when a child dies, the lawsuit is no longer a medical malpractice case, but a wrongful death case. Wrongful death cases are generally filed by the parents for their own benefit. In a wrongful death action, there are generally no damages that can be awarded to the child. Few exceptions apply, such as damages that may have arisen when the child was still alive. An example of this would be pain and suffering.

In general, limitations are not placed on how parents can spend the damages that they receive in a wrongful death case. An exception to this would be if such a condition was agreed to by all of the parties involved.

Do I Need An Attorney For Damages In A Birth Injury Case?

If you believe that your child was injured during birth, you should contact a birth injury attorney. A lawyer in your state can help you understand your state’s specific medical malpractice and birth injury laws, and what your legal rights and options are according to those laws. Additionally, an attorney will also be able to represent you in court, as needed.


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