A birth injury, as implied by its name, is an injury sustained by a newborn before, during or shortly after their birth. These injuries are often the result of medical negligence, and since very few medical professionals and facilities are willing to admit their mistakes, insult is often added to injury for parents. Unfortunately, birth injuries are not only painful and debilitating but expensive to treat as well.
The vast majority of birth injuries are caused by nerve damage, brain injuries, medication mistakes, shoulder dystocia, and oxygen deprivation. When a child sustains one or more of the previously mentioned injuries, they can develop the following conditions:
- Erb’s/Klumpke’s Palsy
- Spina Bifida
- Cerebral Palsy
Children with birth injuries often suffer from serious developmental delays that prevent them from living a normal life. Medical care and supervision are often required on a long-term basis, and sadly, parents will almost inevitably be left to foot the bill.
When Can a Person File a Birth Injury Compensation Claim?
To win a case, the plaintiff(s) and their attorney must prove the medical professional or facility they believe to be responsible for the birth injury acted in a negligent manner. Commonly, this involves proving a medical professional or facility failed to:
- Correctly diagnose a medical issue or provide a diagnosis in general
- Use proper medical technique when utilizing birth-assisting tools
- Monitor or observe the patient(s) for maternal or fetal distress
- Carry out an emergency C-section
- Take reasonable measures to prevent or control preterm labor
- Treat fetal or maternal infections or medical conditions, such as gestational diabetes
When evaluating a claim, the court will attempt to determine if the actions taken by a medical professional or facility are reasonable. To do this, they may consult other medical professionals in the same field.
Filing a compensation claim is not exactly easy, and before a plaintiff files a claim, they should be sure of the following:
- The patient filing a lawsuit and the doctor in question must have a valid, established relationship. In general, if a doctor delivers a baby, there is a relationship between him or her and the patient. On the other hand, if a person is temporarily treated by a physician (who is not their regular physician), they may or may not be able to recover damages in a lawsuit since there is no established relationship.
- The doctor must have committed an act of medical negligence while delivering the child. Medical negligence occurs when a physician or medical professional deviates from common practice or fails to act in a way that is in the best interest of a patient.
- The birth injury sustained by the child must be the result of the act of negligence.
Other elements may be required to file a lawsuit, but in general, the three elements above must exist if a person wishes to file a valid birth injury claim for compensation. Physicians are not the only party that can be held liable for a birth injury – nurses, physician assistants, pharmacists, and hospitals can be held liable if they played any role in the injury.
Who Can File a Birth Injury Compensation Claim?
Parents and guardians are almost always allowed to file birth injury lawsuits, but if a child is at least 18 years old, they may file on their own behalf. From a legal perspective, it is generally recommended that parents or guardians file suit since they bear the burden of medical costs and other related expenses. Each state also imposes statutes of limitation on any person who intends to file a personal injury lawsuit.
Statutes of Limitation
Statutes of limitation laws only allow injured persons to file a claim for compensation within a specific window of time (usually two years from the date the injury was discovered or noticed). Statutes of limitation, however, are not always ironclad, and if an injury presents itself several years later, the court system may decide to hear the case. Unfortunately, however, this is a rare occurrence, so anyone interested in filing a birth injury compensation claim should speak to a lawyer as soon as possible. Filing outside the two-year window of time means the court may decide not to hear a case.
The True Cost of a Birth Injury
No one expects their newborn to sustain a life-altering injury within the first few hours of their life, but it can happen, and when it does, the results can be emotionally and financially devastating for infants and their parents. In addition to psychological toll, parents of injured infants are often faced with a mountain of medical expenses, and even with health insurance, these bills can cripple a financially stable family’s bank account. Very few people enjoy filing lawsuits, but in some cases, it is necessary to a person or family’s financial survival.
Types of Damages
When it comes to birth injury cases, there is no way to predict how much compensation a particular case is worth. All cases are different, and the amount of compensation a person is awarded will depend on a variety of legal factors. In general, plaintiffs may be able to recover one of two different types of damages in civil court.
The first type, pecuniary damages, are the easiest to predict. These types of damages can be calculated, and they are largely awarded by the court in an effort to reimburse plaintiffs for any expenses they may have incurred. These types of damages take various expenses, such as medical bills and lost compensation into consideration, and in general, the more damages a person has incurred, the more they will be able to recover. Pecuniary damages, however, do take the pain and emotional suffering of plaintiffs into consideration.
Punitive damages, on the other hand, are issued solely to punish the defendant and discourage them from engaging in the same behaviors in the future. Punitive damages cannot be easily calculated, but they are often awarded in cases involving gross negligence. It is important to note, however, that punitive damages may not be recoverable in all cases.
If a birth injury case makes it to court, the court itself will decide how much compensation a case is worth. If there is a jury, the jury will decide how much the plaintiff deserves, but if the judge does not agree, he or she may choose to reduce or increase the size of the award.
Medical malpractice cases can take years to resolve, and sometimes, accepting a settlement is in the best interest of the plaintiff. A settlement is an amount of money offered to the plaintiff by the defendant in return for the dropping of the case. In other words, if the plaintiff chooses to accept the settlement, they will no longer be allowed to take legal action against the defendant. A settlement can be offered at any point in time, and although an attorney can offer guidance and advice, accepting or rejecting a settlement is ultimately the responsibility of the plaintiff.