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Who is Responsible for a Birth Injury Claim?

Written by Berkowitz

Pencil erasing birth injury

Connecticut Malpractice Attorneys Serving Families of Victims of Birth Injuries

Having a baby is an exciting life experience. Sadly, too many parents in the United States go through the excitement of a baby on the way, and it ends in devastation.

While a clear majority of births in the U.S. go uncomplicated, there is an alarming number that results in injuries or fetal death — and most are preventable. When harm is avoidable, it is important that the parents of the baby know what their rights are — and whom they can hold responsible for ensuring their child receives adequate care.

What is a Birth Injury?

Birth injuries refer to the injuries that the infant suffers; not the mother.

The injury is sustained before, during, or following childbirth. It ranges in severity and might result in short-term or long-term complications for the child. In some cases, the child might suffer a life-threatening condition.

Some birth injuries are temporary, and the child heals without much intervention or affects their quality of life. Other birth injuries, however, result in extensive treatments and lifelong complications.

Birth Injuries are Not Defects

Birth injuries are confused with congenital disabilities. However, these are two very different outcomes for a pregnant mother. A defect occurs in the baby’s DNA and means that the infant was predisposed to have that disability or malformation. There are instances, however, where a defect can occur from medical negligence. For example, a physician prescribes a medication known to cause defects in unborn children.

Typical Examples of Preventable Birth Injuries

Birth injuries are health issues that affect the infant and are usually avoidable. The most common type of preventable injuries to the infant include:

  • Pulling or twisting the baby during vaginal delivery;
  • Improper handling of the baby;
  • Improper use of birth tools, including vacuum extraction devices and forceps;
  • Using the wrong type of medication during the mother’s labor;
  • Not monitoring the infant during labor;
  • Ignoring the signs of fetal distress;
  • Failure to schedule emergency C-section when necessary;
  • Inability to follow the progression of the fetus and prematurely order a C-section.

How Birth Injuries are a Form of Medical Negligence

Before holding a physician or hospital accountable, you must understand the theory of negligence. More importantly, how birth injuries are the result of medical negligence.

For example, a complicated delivery happens. However, an experienced physician knows how to avoid these situations in the first place. Sometimes that requires monitoring the mother and measuring the size of the baby. Other times it involves preventative measures when a difficult labor is likely.

Sometimes medical negligence is simple, such as a physician not reviewing the ultrasound and predetermining an issue in the pregnancy or with the delivery.

Sadly, arduous labors often result in conditions like Erb’s palsy, broken collarbones, and infant brain damage. Other times, the difficult delivery ends in a wrongful death of the child or mother.

Medical negligence sometimes starts earlier in the process. A fetus might be malnourished, suffer from a folic acid deficiency, or be underweight. Physicians are supposed to monitor the fetal sizes and progressions through each stage of pregnancy. When they note something amiss, they are expected to act or follow up to ensure the fetus progresses as he or she should.

Medical Practitioners are Overwhelmed, but That is Not an Excuse

Today, OB/GYNs and family practitioners offering prenatal and infant care take on too many patients. They must pack their schedule with back-to-back visits (sometimes double-booking patients), in between surgical procedures. Doing so results in a stressed physician who limits his or her time to only a few minutes with each patient.

Pregnant mothers go through an assembly line process. They are rushed through their checkups and rarely receive feedback. Some physicians are so inundated with other patients that they fail to perform ultrasounds or blood work when they should. Even when they do the tests, they might only have a few seconds to glance at the results quickly.

Furthermore, some physicians are too busy to review the results, so they rely on nursing staff, medical assistants, and radiologists to indicate if there is an issue. These professionals are not doctors and did not attend medical school. While they are well-trained, they cannot always identify issues, which means a physician is not notified of a potential problem with their patients.

Who is Liable for a Birth Injury?

As you can see from the above example, several parties might be responsible for a birth injury. However, it might come down to who had the authority to make decisions regarding patient care. While the radiologist might miss a diagnosis, the radiologist is not there to care for the patient. Ultimately, it is the physician’s duty to review all patient scans, radiologist reports, and assess for themselves before signing off on a patient.

Potential Parties in a Birth Injury Lawsuit

Birth injuries are highly involved. A medical malpractice attorney will review the medical records and help decide which party is liable for the injury. Depending on what parties were involved, several defendants might be listed in a lawsuit, such as:

  • The hospital
  • The treating physician
  • The radiologist
  • Nursing staff
  • Medical assistants
  • The clinic (if the doctor worked for a medical practice or clinic)

Determining the Caregiver’s Malpractice and Establishing the Elements of a Claim

To decide which defendants might be liable for a birth-related injury, an attorney will assess the caregiver’s duty to the patient, then determine which caregiver breached that duty.

Ultimately, your attorney must prove:

  • The defendant (your physician, the hospital, a nurse, the facility, the pharmaceutical manufacturer, the device manufacturer, or the medical assistant) owed you a legal duty of care. The standard of care refers to how other obstetricians or medical professionals would have reacted in a similar situation. Thus, the expected standard of care you would receive from a trained, experienced professional.
  • The defendant(s) breached their duty of care by failing to act or acting negligently compared to a competent individual.
  • The breach of duty by the respondent(s) caused the infant’s injury (possible injuries to the mother too) and resulted in financial, emotional, or physical damages.

How Does an Attorney Establish Negligence?

To accurately establish negligence, your attorney must first hire an expert witness to assess the medical records. Then, the expert — typically a physician practicing in the same field and the same state — then comments on the medical procedures, the complexity of the case, and any issues they see.

Some items the expert witness is likely to address includes:

  • What a healthy pregnancy and delivery would look like;
  • What could have been expected in the plaintiff’s case;
  • What occurred during the pregnancy or delivery;
  • How the complications the plaintiff experienced differ from how they should have occurred;
  • Physical and medical evidence establishing direct harm to the baby;
  • Opinion regarding if the harm the infant suffered was preventable or foreseeable.

When Physicians or Pharmaceutical Companies Cause Defects

Sometimes, the injury to the infant starts long before the delivery room. However, the physician or pharmaceutical company could be liable in this case too.

A claim might arise not from birth-related complications, but from medications prescribed or recommended to the mother during pregnancy.

These claims might be brought against multiple parties, including:

  • Physician
  • Pharmaceutical companies
  • Pharmacists
  • Hospitals
  • Nursing staff

These claims are based more so on a failure to warn the mother of the associated risks for taking the medication during her pregnancy. Other times, they might be for prescribing the wrong drug, failing to monitor the fetus’ progress on medication, or administering the wrong prescription.

If a lawsuit for an infant’s injury results from legal prescriptions, then an attorney must establish multiple elements, including:

  • The mother used the medication during her pregnancy;
  • The mother’s use of that medicine was obtained through a legal prescription written by her physician or another health care provider;
  • The birth injury was not caused by genetics, disease, heredity, or another factor established by an expert;
  • The drug is known for producing the same type of congenital disability;
  • The drug caused the injury or defect.

Seeking Damages for a Birth Injury

After your child’s injury, you must speak with a medical malpractice attorney. An attorney, like those at Berkowitz and Hanna, LLC, can assist you with your claim.

We aggressively fight for our clients’ rights to compensation. When your child suffers an avoidable birth injury, you can receive damages through a personal injury lawsuit.

The legislation does limit the type of compensation you can receive in these kinds of cases, and depending on the factors of your case, you may receive one or more forms of compensation.

You may have a claim against the hospital, pharmacist, physician, and so forth.

Some forms of damages you and your spouse might recover for your injured child include:

  • Medical Costs –From the costs of treating your child’s injury to the long-term medical expenses he or she might require, you can seek compensation for these through a medical malpractice attorney. An attorney knows how to estimate and evaluate medical costs to ensure you are not burdened with these alone.
  • Time from Work – You might miss time from work (or your spouse) to care for your injured child. This lack of income quickly adds up, but an attorney can help you seek compensation for those lost wages.
  • Inability to Work in the Future – If you or your spouse must take time off work permanently to care for a child with permanent injuries, you may receive compensation to supplement for that lost income.
  • Pain and Suffering – The emotional and physical pain your child endures is also compensated, especially for long-term or disabling injuries.

Contact a Malpractice Attorney Today

If your infant was injured during birth or due to a physician’s negligence while you were pregnant, the attorneys at Berkowitz and Hanna, LLC want to help.

Our team will examine the facts of your case and help determine if negligence played a role in your child’s injury.

Contact Berkowitz and Hanna, LLC today to schedule a no-obligation case evaluation. Contact us online to get started.