Who Is Responsible for Your Child’s Birth Injury?

If your child suffered an injury during birth, you likely have a lot of questions. How are you going to pay for the medical care and therapeutic treatments that your child will need, perhaps for his or her entire lifetime? What can you do to ensure the best outcome for your child? Who is responsible for the injury?

Birth injuries can be caused by a number of things, many of which are unpreventable. However, if your child’s injuries were due to negligence on the part of a medical professional or facility, you may be eligible for compensation. An experienced medical malpractice attorney can help you understand your legal options.

Types of Birth Injuries

The Birth Injury Guide lists many birth injuries with a wide range of severity. Here is a look at the types of injuries that may occur during or around the time of birth.

  • Brain-related injuries: Many brain-related birth injuries are caused by an infant’s brain being deprived of oxygen during birth. Some of the terms used for this type of injury include anoxia, hypoxia, birth asphyxia, perinatal asphyxia, and hypoxic-ischemic encephalopathy. The brain reacts to oxygen deprivation through electrical responses, which may impair multiple brain functions and cause issues such as seizures or cerebral palsy. Cerebral palsy is the most common brain-related injury to occur as a result of birth trauma, with 8,000 to 10,000 new cases diagnosed each year.
  • Muscle-related or physical injuries: Some common muscle-related birth injuries include brachial plexus, when the upper arm is injured during delivery, causing weakness in that arm and even the inability to use certain muscles in the arm; Erb’s palsy, a form of brachial plexus affecting the nerves of the upper arm; Klumpke’s palsy, another form of brachial plexus which involves the lower nerves of the arm, including the wrists and fingers; shoulder dystocia, which occurs when the infant’s head and shoulders get trapped behind the mother’s pelvic bone during delivery, and can result in severe complications for both the mother and the infant.
  • Injuries related to infection or developed during pregnancy: One in every four women carries the group B strep infection or meningitis infection without any symptoms. These infections, which are supposed to be tested for during pregnancy, can be transferred to children in the birth canal. Other injuries that may develop during pregnancy, and that doctors should test the mother should for during pregnancy, include folic acid deficiency, anemia, and spina bifida. Additionally, the child may develop meconium aspiration, particularly during a long and stressful delivery, which can cause severe breathing problems after birth.
  • Injuries during delivery: Sometimes, medical professionals use tools to help speed up delivery. If used improperly, these tools can cause injuries to the infant. Some common tools used during childbirth that may result in an injury include vacuum extractors or forceps. Infants may also be injured during delivery due to administering the wrong medication, mishandling the infant, or even stress, high blood pressure, or hypertension due to a poorly handled delivery.
  • Persistent pulmonary hypertension of the newborn: This condition occurs when fetal circulation does not transition to life outside of the womb. It is often caused by a difficult birth, but can also be the result of negligence.

Infants aren’t always the only victim when a birth injury occurs. The mother can sustain serious injuries during the birth process, as well. Some common injuries to women during childbirth include:

  • Anemia
  • Maternal conditions, such as diabetes or preeclampsia
  • Placental issues, such as placental abruption or placenta previa
  • Uterine rupture
  • Hemorrhaging or perineal tearing

When Is a Mistake Medical Malpractice?

When the negligence of a medical professional or facility is to blame for an injury to an infant or mother during childbirth, it is considered medical malpractice. In addition to the injuries listed above, some other common birth-related or pregnancy-related problems that can be the result of medical malpractice include:

  • Failure to inform parents of an infant’s abnormality
  • Failure to properly help parents to avoid a pregnancy
  • Failure to diagnose a medical condition or misdiagnosis
  • Failure to properly detect or treat fetal distress
  • Failure to schedule and perform an emergency cesarean section
  • Failure to diagnose and treat rH incompatibility

To prove medical malpractice, a claimant must show that:

  • A doctor-patient relationship existed.
  • The medical provider was negligent.
  • The medical provider’s negligence caused injury.
  • The injury led to specific damages.

Florida Medical Malpractice Laws

Each state in the nation has its own statutes regarding medical malpractice. Below we summarize some of the highlights of Florida’s medical malpractice laws:

  • Healthcare providers are subject to state law and may be found liable in medical malpractice cases, including licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, hospitals, and surgical centers. Also included are professionals who are vicariously liable for the acts of healthcare providers, including physician’s assistants, nurses, nurses’ assistants, and other medical staff.
  • The statute of limitations for medical malpractice cases is two years from the date of the discovery of the injury. This is shorter than the statute of limitations in a general negligence case. According to the Florida Bar, the reason for the shorter time limit to file a claim is to prevent potentially frivolous lawsuits. One exception to this is when the injured party was a minor at the time of the injury. Another exception is a 7-year cap placed on suits involving fraud, concealment, or intentional misrepresentation by a potential defendant health care provider.
  • To file a medical malpractice claim in Florida, the first step is pre-lawsuit investigation and notice. The purpose of this investigation is to identify which defendants may be liable. A petition must be made at this time to the court that has jurisdiction over the case, with a 90-day extension granted for statute of limitations purposes.
  • During the pre-suit investigation, notice of the intent to initiate litigation must be given to each prospective defendant. An affidavit from a medical professional validating the medical claim must accompany the notice of intent. The prospective defendant’s insurer must investigate to determine any liability of the insured. Informal discovery must be conducted, and there must be good faith cooperation with the insurer.
  • When an insurer, upon investigation, does not find grounds to believe that the insured is liable for the plaintiff’s injury, a written, verified medical opinion must be mailed to the defendant with a notice of rejection. The claimant must file suit within 60 days after that rejection is received.
  • Previously, there was a cap on the amount that could be sought for non-economic damages in medical malpractice cases, including damages for pain and suffering. However, in 2017, the Florida Supreme Court ruled that this cap was unconstitutional.

Birth Injury in the News

An attempted out-of-hospital birth turned tragic for one Florida family, according to a February 2019 article from the Herald-Tribune. Emergency medical technicians responded to a call on January 30 at a standalone birthing center in Sarasota, where a midwife reported that a 23-year-old first-time mother was laboring and that the baby was in the breech position. The baby suffered cardiac arrest during the birth, respiratory failure, and severe brain damage from which he may never fully recover. The birth was one of a number of adverse outcomes for the birthing center, which was the subject of a nine-month-long investigation by GateHouse Media. 911 phone records revealed that the mother was nearly 41 weeks pregnant, with no high risks. At the time of the 911 call, the midwife reported that she could feel the baby’s foot and that the mother’s contractions were coming every two to three minutes.

A follow-up story noted that the baby boy was at Johns Hopkins All Children’s Hospital in St. Petersburg, where he is unable to breathe on his own, unable to swallow, and must be given anti-seizure medication through a tube in his leg. The midwife’s notes of the delivery show that she failed to follow state regulations for midwives, including the requirement to perform an initial assessment at the onset of labor to determine the baby’s position. Additionally, the notes indicate that the midwife did not refer the mother to a physician with hospital privileges after she went past the full-term 40 weeks or transfer the mother to a physician with hospital privileges due to the baby’s breech position. The midwife reportedly told the woman to push and that she would deliver the baby herself, in spite of his position in the birth canal. The emergency medical technicians also broke protocol, the article noted, by waiting to transfer the mother while the midwife—not considered by Florida to be a healthcare professional—continued to attempt to deliver the baby. The child’s long-term prognosis is unclear.

According to an October 2018 article published by Aberdeen News, a South Dakota hospital denied allegations that it failed to provide proper labor, delivery, and fetal monitoring care. The claim stems from a situation in January 2017, in which a woman underwent an emergency cesarean section, and her child now suffers from extensive hypoxic-ischemic injury, cerebral palsy, and other birth-related traumas. The child’s parents filed a medical malpractice lawsuit on behalf of the child and are seeking damages in excess of $75,000. In addition to the hospital, the lawsuit named a doctor and several others working at the hospital as defendants.

A July 2018 report from CBS News stated that the United States is the most dangerous place to give birth in the developed world, according to a USA Today study. The study revealed that more than 50,000 mothers are severely injured during or after childbirth each year, and around 700 of them die. Maternal death in the United States has been rising, and about half of those deaths could be prevented with better medical care, the report notes. Among the leading causes of maternal death during childbirth are hemorrhaging and hypertension. It was found that too many doctors are simply ‘eye-balling’ blood loss, rather than actually measuring it to determine if something isn’t right. The biggest key to reducing the number of deaths, according to the article, is more training for medical professionals and the use of checklists when monitoring the mother’s condition during and after giving birth.

Who Is Responsible for Your Child’s Birth Injury?

If your child suffered an injury during or around birth in New Port Richey, you may be confused as to who is actually liable or whether there is compensation available to pay for the costs of treatment and care following the injury. There may be multiple defendants, or you may not even know who all was involved or whether their actions were negligent. To further complicate matters, not all medical mistakes constitute medical malpractice. You deserve an attorney who will not only help you sort out the details of who is liable, but will remain by your side throughout the whole process of filing a claim, and will fight aggressively for you to receive compensation for the full cost of your child’s injuries.

Contact the Dolman Law Group if Your Child Suffered a Birth Injury in New Port Richey

The experienced birth injury lawyers at the Dolman Law Group are eager to meet with you and provide guidance regarding your legal options. To schedule your free consultation and case review, call the Dolman Law Group today at (727) 853-6275, or contact us online.

Dolman Law Group
1663 1st Ave S.
St. Petersburg, FL, 33712
(727) 222-6922