Medical malpractice (also known as professional negligence) occurs when a doctor or other healthcare provider is negligent in treating a patient. To prove that medical malpractice occurred, a patient must prove five elements:
- The doctor had a duty to the patient: A legal duty exists when a doctor undertakes care or treatment of a patient. The patient must have hired the doctor, and the doctor must have agreed to be hired.
- The doctor was negligent: A doctor is negligent when she fails to act with the carefulness of a reasonably prudent doctor in her local community. The doctor does not need to provide the best care possible; the care just needs to be as reasonably skillful and careful as the care offered by other doctors in her community.
- The doctor’s negligence was the "actual cause" of the patient’s injury: For a doctor to be liable, her negligence must have been the cause of the patient’s injury. This is usually proven by the "but-for" test: "But for" the doctor’s negligent conduct, the patient would not have sustained an injury. The patient must show that it is "more likely than not" that the doctor’s negligence caused the injury.
- The doctor’s negligence was the "proximate cause" of the patient’s injury: A doctor is only liable for the reasonably predictable consequences of her negligence. If the patient’s injury was remote or unpredictable, the doctor will not be liable.
- The doctor’s negligence caused damages to the patient: Even if the doctor was negligent, the patient can only sue if she suffered harm. The most common damages for which patients sue are physical pain, mental anguish, medical bills, and lost work and earning capacity.
What Is a Birth Injury?
A "birth injury" is an injury sustained by a baby due to complications during labor or delivery. Birth injuries may occur during or after delivery. The most common birth injuries include the following:
- Head injuries
- Damage caused by lack of oxygen
- Cerebral palsy
- Erbs palsy
- Down Syndrome
What Causes Birth Injuries?
Most birth injuries are not the result of medical malpractice; because birth is a naturally traumatic event for the mother and child, birth injuries often occur naturally, when a doctor could not have prevented the injury. However, birth injuries can be due to a medical error. Here are some common medical errors that may support a medical malpractice action:
- Failing to monitor the baby
- Failing to warn of pregnancy risks
- Improper use of forceps, vacuums, and other medical birthing devices
- Failure to order, or delay in ordering, a cesarean section (c-section) when medically necessary
- Medication errors
Who Are the Responsible Parties in a Birth Injury Claim?
A birth injury or medical malpractice claim is not only limited to the conduct of the medical doctor. A medical malpractice claim in a birth injury claim may apply to to the following parties:
- Hospitals that provided the medical staff and doctors
- Nurses and anesthesiologists
- Pharmaceutical Companies that provided the drugs and medicine
- Doctors and medical providers
When Should I Bring a Birth Injury Claim?
In a birth injury claim, there are two different types of claims that can be brought. The first claim belongs to the parents who can bring a claim for the cost of their child's treatment and care until the child has reached the age of 18 as well as their own pain and suffering damages. This claim has a short deadline depending on the state's law when the time period is.
The other claim belongs to the child who suffered the birth injury. The child can bring a birth injury claim for his or her own medical expenses and care after the age of 18 and also for pain and suffering damages. A child may be able to bring this claim up to the age of 21.
Seeking Legal Help for a Birth Injury
If you believe that you are involved in a case of medical malpractice or birth injuries, you should seek legal counsel from an experienced personal injury lawyer.