Who Is Responsible for Your Child’s Birth Injury?

The arrival of a baby usually serves as a time of jubilation for families; however, when a newborn has a birth injury, the rejoicing turns to panic and distress. Some birth injuries occur because of genetics, other natural causes, or reasons that cannot be explained. Unfortunately, many birth injuries result from things that occur during pregnancy, labor, or delivery. For pregnant women who have followed all of their doctor’s recommendations and not suffered any falls, motor vehicle accidents, or other physically traumatic experiences during pregnancy, the responsibility for their child’s birth injury often falls on negligent medical professionals.

This guide focuses on preventable birth injuries, including complications during pregnancy that might lead to a birth injury. After going over common preventable birth injuries and their causes, we provide information on immediate and delayed symptoms of birth injuries. We conclude with an overview of the process of how to seek compensation after your child has suffered a birth injury.

Common Injuries That Occur During Childbirth

Broadly speaking, a birth injury is physical or developmental damage to an infant that occurs during birth. The following are some of the most common birth injuries:

  • Cerebral palsy (CP). The Centers for Disease Control and Prevention (CDC) reports that CP is the most common motor disability for children. Cerebral palsy is a result of brain damage that occurs during pregnancy, labor, or birth.
  • Caput succedaneum. This head trauma might occur when a doctor needs to use an extraction vacuum during childbirth. Misusing the vacuum can result in swelling on a baby’s scalp during birth and may also cause multiple bruises on a newborn’s head.
  • Cephalohematoma. This head injury occurs because of bleeding underneath a newborn’s cranium. It typically appears within hours of birth and produces a visible bump on the newborn’s head.
  • Horner’s syndrome. When doctors misuse birthing tools, such as vacuums or forceps, pressure on baby’s face might result in facial paralysis. Tools might tear facial nerves resulting in permanent or temporary paralysis.
  • Brachial plexus palsy. The brachial plexus is a network of nerves that serves as the functional center for a person’s shoulders, arms, and hands. Brachial Plexus Palsy, also referred to as Erb’s Palsy occurs when a doctor forces a newborn through the birth canal. When newborns have Erb’s Palsy, they typically lose movement in one or both shoulders, and they may also have movement issues with their arms or hands. Most infants need corrective surgery within their first year of life.
  • Broken bones. During a breech delivery, newborns are at risk for broken bones, especially a fractured collarbone. Other bones might break when an infant’s limbs or shoulders get stuck in the mother’s pelvis during delivery.
  • Spinal cord damage. A spinal cord injury might also occur during delivery when a blunt force trauma occurs from the misuse of instruments. A breech delivery might also lead to spinal cord damage.
  • Medication-related injuries. If an anesthesiologist or a nurse anesthetist wrongly administers an epidural or other medication during labor or delivery, an infant might sustain a brain injury, have a stroke, or go into a coma.

Birth Injuries From Pregnancy Complications

Although the vast majority of birth injuries occur during labor and delivery, some conditions and complications during pregnancy might also cause distress to the fetus. General practitioners and obstetricians must recognize symptoms and diagnose these complications. Failure to diagnose and treat the following conditions might lead to a birth injury or even worse—a miscarriage or stillbirth.

  • Placenta previa occurs when the placenta fully or partially covers the cervix. It typically causes heavy bleeding and might lead to more severe complications, such as placental abruption.
  • Placental abruption refers to the complete or partial separation of the placenta away from the uterine wall before birth. When this occurs the fetus partially or completely loses its nutrient and oxygen supply. A placental abruption also causes heavy bleeding and, if not treated, might cause death to the fetus and/or the mother.
  • Preeclampsia is a condition during pregnancy that causes high blood pressure, liver damage, and kidney damage. Doctors who adequately screen for preeclampsia watch the protein levels in the mother’s urine. When protein levels are too high, doctors must deliver the baby immediately to prevent injury or death to the fetus.

Medical Malpractice that Leads to Childbirth Injuries

The previous discussion of birth injuries and pregnancy complications included a few examples of how medical malpractice might lead to a birth injury. Here is a more comprehensive overview of the scenarios that involve a medical professional—most often a doctor—which might lead to a birth injury:

  • Poor prenatal care
  • Failure to do proper prenatal testing
  • Failure to diagnose fetal distress at all stages
  • Failure to treat fetal distress at all stages
  • Improper administration of an epidural or medications
  • Not performing a cesarean section when needed
  • Misuse or overuse of birthing tools like extraction vacuums and forceps
  • Failure to monitor oxygen levels of a fetus during labor and delivery
  • Cutting the umbilical cord too soon, resulting in cutting the oxygen and nutrient supply to the newborn

Liability in Florida Birth Injury Cases

Birth injuries happen for reasons that are unpreventable and sometimes unexplainable. When injuries are preventable, the doctor who delivered the baby is often responsible. Yet, there are situations where other medical professionals might share liability. When a medical professional is negligent through action or omission, parents are eligible to file a medical malpractice suit against the doctor. There are rare situations where negligence in a hospital or other facility does not qualify as malpractice.

In an effort to reduce frivolous malpractice suits against medical professionals, Florida makes a clear distinction about the difference between an ordinary negligence claim and a medical malpractice suit. The following conditions must be met for a birth injury to constitute medical malpractice:

  • The negligent act or omission must be a result of the diagnosis, treatment, or care.
  • A healthcare provider must have provided the diagnosis, treatment, or care.

The vast majority of preventable birth injuries caused by a medical professional will fall under the umbrella of medical malpractice, but there are scenarios that might lead to a birth injury that would legally fall under ordinary negligence. If your baby sustained an injury during pregnancy, labor, or delivery, it’s imperative to contact an experienced personal injury attorney that has experience with medical malpractice claims involving birth injuries. Your attorney will advise you on the best path given your individual circumstances. Further, Florida law requires complex pre-suit procedure investigations that usually require the expertise of an experienced lawyer.

Pre-Suit Requirements for Florida Medical Malpractice Claims

In the event that you file a medical malpractice lawsuit, Florida law requires a pre-suit investigation and screening. Your lawyer must submit an application for a pre-suit investigation that provides an explanation of your doctor’s negligence and how that negligence caused injury to your fetus or newborn. Florida law requires that your attorney obtain a verified written opinion from a medical expert. After a medical expert has reviewed the case and given his or her opinion, Florida law requires the following:

  1. Your attorney must notify all parties named in the lawsuit and include copies of the medical records that the medical expert used for his or her opinion. Your attorney must also include a list of all healthcare providers that you saw during pregnancy and after the birth injury occurred.
  2. After serving those named in the suit with the complaint, your attorney must provide a copy to Florida’s Department of Health. If the hospital where you gave birth is listed in the suit, the Agency for Healthcare Administration also needs a copy of the complaint. Both agencies review the complaint to determine whether or not disciplinary action is appropriate given the circumstances.
  3. Next, the defense has a 90-day window to perform its own pre-suit investigation. The involved insurance companies will determine liability, which might include an internal review by a claims adjuster and a panel that includes an attorney, a medical expert, a claims adjuster, and a medical review panel provided by a professional society.
  4. After the 90-day waiting period, the defense must respond to the claim in one of the following ways:
    • Reject the claim
    • Make a settlement offer
    • Admit liability and offer to enter arbitration to determine damages
  5. After the defense responds, you have 60 days or the remainder of the statute of limitations window to file a suit, whichever is longer.

Statute of Limitations in Florida Birth Injury Cases

Under Florida law, you have four years following an accident to file a personal injury lawsuit. It is likely that your attorney will need to file a medical malpractice suit. In that case, the statute of limitations is reduced to two years from the date of injury or within two years from the time the injury is discovered, with a few caveats that apply to birth injury cases:

  • Action must be taken no later than four years after the date of the incident, unless the child is under eight years old. If your newborn was injured during pregnancy, labor, or delivery, you have until his or her eighth birthday to take legal action.
  • If the medical professional or facility that caused the injury intentionally misrepresented facts, committed fraud, or concealed the injury, you have seven years to take legal action or until the child’s eighth birthday, whichever is longer.

It’s in your best interest to bring suit as soon as possible, but sometimes birth injuries don’t show symptoms for months or years. You might not notice issues until your child starts missing developmental milestones. The additional time to file a medical malpractice suit protects you if your child has delayed symptoms.

Recovering Damages for Florida Birth Injuries

If your baby was injured because of medical malpractice while you were pregnant, while you were in labor, or during delivery, you may be entitled to receive financial compensation for the economic and non-economic losses that you and your family have incurred because of the injury. Over the years, Florida has imposed caps on damages for medical malpractice suits, especially damages for non-economic losses. As of 2017, the Florida Supreme Court struck down these caps. If a Florida court rules in your favor, you may recover compensation for the following:

  • Medical expenses, including emergency services, hospital stays, surgeries, follow-up visits, medication, diagnostics, and more
  • Future medical costs if the birth injury caused your baby to have a permanent disability, lifelong condition, or exceptionally long recovery time that includes multiple treatments or surgeries
  • Lost wages for time away from work so that you can care for your baby or child
  • Lost future income, referred to as lost earning capacity, for your child if his or her birth injury prevents them from functioning or seeking meaningful employment when they reach working age
  • Pain and suffering and other non-economic damages that pertain to your individual circumstances

Contact a Seasoned Personal Injury Attorney in New Port Richey Today

Doctors and other medical professionals remain legally obligated to provide a particular standard of care during pregnancy, childbirth, and beyond. Doctors who fail to notice a narrow birth canal, ignore or fail to notice birth weight issues, or have prescribed the wrong medication to a pregnant mother might be liable for a child’s birth injury. An experienced birth injury lawyer will evaluate your case and help determine liability if you are unsure about the extent to which neglect played a part in your child’s birth injury.

Watching your young child suffer from pain or struggle with developmental milestones when a doctor made a mistake can devastate families. Money will never make up for the trauma and pain that your infant has gone through and the mental anguish that you feel watching them struggle. However, birth injuries often result in steep medical expenses, and seeking compensation from the responsible party may help ease the financial burden that your family is likely facing. Call the Dolman Law Group in New Port Richey at (727) 853-6275, or contact us online, to schedule a free consultation and to discuss your case with an experienced birth injury attorney.

Dolman Law Group
5435 Main Street
New Port Richey, FL, 34652
(727) 853-6275