The novel coronavirus (COVID-19) outbreak in the United States has wreaked havoc on the nation’s health care system, and hospitals in Connecticut and other states across the country are asking residents to stay home if they are not in need of emergency care. But, while some people may be able to delay hospital visits during the COVID-19 crisis, expecting mothers cannot.
This raises an obvious question: What happens if a mother or newborn contracts COVID-19?
First, while there is a risk that the mother or newborn could contract COVID-19 due to coming into contact with infected health care providers, hospital staff, or patients, this risk is ultimately likely to be fairly low. Hospitals in Connecticut are taking extraordinary measures to protect their employees and patients. And while there was previously a shortage of protective masks, this need has largely been filled within the health care setting. At this point, all hospital staff should be well-trained on proper social distancing and sanitization protocols, and the risk of exposure in delivery and recovery rooms should be substantially mitigated.
But, let’s suppose that a hospital’s protective measures are inadequate and a new mother or newborn is diagnosed with COVID-19. Does this mean that the family can sue the hospital for medical malpractice?
Probably not.
In order to prove a claim for medical malpractice against a hospital, it is necessary to show that the hospital’s conduct fell below the requisite standard of care. During the novel coronavirus pandemic, hospitals are stretching their capabilities, and in many cases, going above and beyond to protect their patients. As a result, health care providers are being provided with immunity against COVID-19 infection lawsuits in many situations. However, even if there were no immunity, proving liability would still likely prove difficult for a variety of different reasons. Unless an infection resulted in serious complications or death, any available compensation would be unlikely to warrant a medical malpractice lawsuit under the present circumstances.
Filing a Birth Injury Medical Malpractice Claim during the COVID-19 Outbreak
While families may be unlikely to recover financial compensation for COVID-19 infections resulting from childbirth in the hospital setting, this does not preclude families from filing “ordinary” birth injury medical malpractice claims. Although some hospitals and doctors may be overwhelmed, they still have a legal obligation to meet their duty of care. In the maternity ward, this means providing all necessary forms of treatment, promptly diagnosing any maternal or fetal health risk, performing safe deliveries, and ensuring that mothers and newborns are not unnecessarily harmed. If a mistake during labor or delivery results in a birth injury, birth defect, or infection, the family still can – and should – seek financial compensation during the COVID-19 crisis.
1. Understanding the Possible Grounds for a Birth Injury Medical Malpractice Claim
There are a number of different issues that can lead to birth injuries and other complications for which financial compensation is available. Connecticut law entitles families to recover their losses in medical malpractice lawsuits involving mistakes including (but not limited to):
- Failure to properly address maternal risk factors. High blood pressure, diabetes, obesity, giving birth to multiples, and various other factors can lead to high-risk pregnancies. When a mother or fetus is at a particularly high risk for injury, illness, or other complications, the mother’s doctor must manage this risk appropriately.
- Failure to diagnose and treat maternal infections. Maternal infections (other than COVID-19) can present long-term health risks for the mother and the fetus. During pregnancy, physicians must order necessary tests to diagnose any maternal infections, they must properly interpret the test results, and they must treat expecting mothers accordingly.
- Failure to diagnose and treat fetal infections. The same requirements apply for fetal infections as well. Various types of fetal infections can lead to birth defects and other complications. And when a defect or complication is capable of being prevented, the failure to prevent it will often rise to the level of medical malpractice.
- Failure to monitor for or identify signs of fetal distress. During pregnancy, labor, and delivery, obstetricians must monitor for signs of fetal distress due to limited oxygen flow and other factors. If signs of fetal distress are identified (or if they should be identified), they must take the medical steps necessary to prevent all avoidable complications.
- Failure to timely recommend necessary medical intervention. In various circumstances, inducing labor, performing a cesarean section (C-section) birth, or taking other measures to intervene may be necessary to protect the health of the mother and fetus. If a doctor does not timely recommend necessary intervention with a sufficient explanation to allow the mother to make an informed decision, then the doctor may be liable for medical negligence.
- Medication errors during labor and delivery (including anesthesia errors). Medication errors are alarmingly common in various medical settings, including childbirth. From administering the wrong medications in the wrong dosages to improperly administering epidural or other anesthesia, various errors can potentially lead to severe complications for the mother and child.
- Errors involving the use of birth tools (including forceps and vacuum extractors). If it is necessary to assist the fetus in moving through the birth canal, delivery doctors and nurses must exercise due care to prevent causing the fetus physical harm. This includes, but is not limited to, making appropriate use of forceps and vacuum extractors.
- Errors involving mishandling of the newborn. Similarly, when handling newborns during and after the delivery process, health care providers must adhere to appropriate techniques and procedures in order to avoid causing birth injuries. Failure to do so may constitute medical malpractice.
- Errors involving improper or inadequate treatment after birth. If a newborn exhibits symptoms of a birth injury, infection, or other complications after birth, doctors must promptly intervene with appropriate treatment. In many cases, prompt treatment can be crucial to preventing long-term effects, and failure to provide appropriate care can have devastating consequences.
- Administration, delegation, and communication failures. Hospital administration errors (such as inadequate staffing), an improper delegation of medical tasks, and communication failures between doctors and nurses can all cause and contribute to avoidable birth injuries as well. When these factors are to blame for birth injuries, the hospital and the individual providers involved can all potentially be held legally accountable.
2. Proving the Financial and Non-Financial Costs of Your Hospital’s or Doctor’s Mistake
In addition to proving that your health care provider made a mistake, in order to file a successful medical malpractice claim, it is necessary to prove the costs of the mistake as well. This includes both financial and non-financial costs, and it includes costs incurred by the parents as well as costs incurred by the child. In a typical birth injury medical malpractice case in Connecticut, recoverable damages will include:
- Medical treatment. The costs of necessary medical treatment for birth injuries can be substantial, and in many cases, will span the child’s entire life.
- Specialized equipment and facilities. Children diagnosed with certain types of birth injuries may require specialized medical equipment or access to specialized medical facilities during their lifetime.
- Medication costs. Birth injuries can lead to long-term medication needs as well, and the costs of buying prescription medications for months, years, or decades can be substantial.
- Physical, cognitive, and psychological therapy. Depending on the nature of a child’s birth injury, various forms of ongoing therapy may be necessary.
- Special educational needs. For children who experience cognitive disabilities or developmental delays, special education may also be required
- The parents’ loss of income. In birth injury medical malpractice cases, parents can recover compensation for their loss of income resulting from taking time off to care for their child.
- The child’s loss of earning capacity. Parents can also recover compensation for their child’s loss of earning capacity from age 18 onward.
- Pain and suffering. In addition to the financial losses listed above, parents can also seek to recover financial compensation for their child’s pain and suffering.
- Scarring and disfigurement. If a birth injury results in disfigurement or requires surgery that results in permanent scarring, this is a non-financial loss for which compensation can be recovered as well.
- Loss of enjoyment of life and other forms of non-financial harm. Finally, parents can seek to recover just compensation for their child’s loss of enjoyment of life and various other forms of non-financial harm.
3. Negotiating an Insurance Settlement or Taking Your Medical Malpractice Claim to Trial
What happens after you file a birth injury medical malpractice claim? In the vast majority of cases, successful birth injury claims are resolved through insurance settlements with health care providers’ medical malpractice insurers. By presenting clear evidence of liability and substantiating our clients’ current and future losses, our malpractice lawyers have been successful in securing substantial settlements for our clients in many cases.
However, in some cases, going to trial will be necessary. Whether a provider’s insurance company disputes liability or is unwilling to agree to a reasonable settlement, there are various circumstances in which it will be in a family’s best interests to pursue litigation. In addition to our record of success in insurance settlement negotiations, we have secured numerous favorable trial verdicts for our clients as well. If you are entitled to compensation and your hospital’s or doctor’s insurance company is not willing to pay, our attorneys will take your case to court to make sure you and your family receive the financial compensation you deserve.
Schedule a Free Birth Injury Consultation with a Malpractice Attorney at Berkowitz Hanna
If you or your child has been diagnosed with an injury, illness, or complication that you believe may be the result of medical malpractice during pregnancy, labor, or delivery, we encourage you to contact us for a free, no-obligation consultation. To speak with one of our highly-experienced malpractice attorneys in confidence, call us directly or request an appointment online today.
