Legal Action After A Birth Injury: Options For Parents

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Today’s post is a rather serious subject, one that I don’t like to dip into. But there are times when knowing where to go or what to do when something goes wrong during your birth is really important.

So I invited my friend Laurence Banville who’s a birth injury lawyer to come share a few things that I think are important for you to know. That said, I’ll turn it over to him. 🙂

Many of us look forward to having children for the better part of our lives. Parenting, as we all know, is one of life’s greatest joys, as well as one of life’s greatest responsibilities. So, as the delivery date approaches, most expectant parents are filled with anticipation, excitement and not a little bit of anxiety.

What Happens After Your Child Suffers A Birth Injury?

We all dream of having a healthy pregnancy and smooth delivery, but for some families, the reality of childbirth is far from what we imagined. Tens of thousands of beautiful children suffer birth injuries during labor or delivery every year. And it can be particularly hard, as a parent, to accept the fact that your child’s birth didn’t go as planned. It can be even harder to face the reality that your child may be living with a severe disability for the rest of their lives.

Common Types Of Birth Injury

Birth injuries come in many forms. Some children sustain nerve damage, leaving them with lifelong muscular impairments. Other babies suffer oxygen deprivation at birth, which can lead to irreversible brain damage and neurological disorders. Still others will sustain brain damage due to physical trauma, in some cases because of a careless obstetrician’s aggressive use of forceps. And around 1% of infants will suffer birth injuries, from broken bones to facial nerve damage, in hastily-performed Cesarean sections.

Brachial Plexus Injuries

The brachial plexus is a network of nerves that carry information from the brain to the arm. Frequent during difficult deliveries, injuries to the brachial plexus can result in permanent neurological impairments. Particularly common is Erb’s Palsy, a disorder in which damage to the brachial plexus causes a loss of sensation and function in the affected arm.

Brachial plexus injuries are common in breech deliveries, when an infant’s shoulder becomes stuck behind the pelvic bones. In many cases, obstetricians must intervene to manually re-orient the child’s body. Inexpert or aggressive movements can easily stretch a child’s nerves too far, resulting in permanent injury.

Hypoxic-Ischemic Encephalopathy

A form of brain damage caused by two simultaneous complications: a decrease in blood flow to the brain and a drop in the amount of oxygen carried by the blood. Taken together, these two factors starve the brain for vital nutrients, leading, in severe cases, to permanent brain cell death and disability.

Some cases of infant brain damage can be mitigated through hypothermia therapy, in which a child’s body temperature is lowered in a controlled manner. In severe cases, the permanent form of brain damage known as hypoxic-ischemic encephalopathy, or HIE, is fatal. Even with proper treatment, many children will develop serious neurological disorders, including cerebral palsy.

Hypoxic-ischemic encephalopathy can be caused by a wide range of factors. Maternal diabetes can reduce the amount of oxygen that reaches an infant, creating a risk of brain damage. Medical conditions that cause low maternal blood pressure (including the excessive administration of anesthesia) can have a similar effect, as can some infections that are able to pass from a mother to her child.

During labor and delivery, leading causes of hypoxic-ischemic encephalopathy include excessive placental bleeding and emergent conditions, like umbilical compression, in which the umbilical cord’s ability to supply oxygen becomes compromised.

Obstetric negligence can also play a role. Some children suffer severe brain damage due to the excessive use of forceps and vacuum pumps, assistive devices that many obstetricians rely on to accelerate difficult deliveries. In other cases, doctors fail to perform an emergency c-section, despite signs that the mother and her child’s health are in danger.

Another possible contributor, again common in difficult or prolonged labors, is when obstetricians use manual intervention to reposition a child inside the birth canal. Without extreme caution, moving the fetus can unintentionally place pressure on the umbilical cord.

Cerebral Palsy

A family of neuromuscular disorders caused, in at least 20% of cases, by oxygen deprivation during labor or delivery. People with cerebral palsy have permanent motor disorders that impair their coordination, balance and movements. Some patients develop involuntary movements. Many experience seizures. Others will be unable to walk unassisted.

Cerebral palsy is a complex medical disorder, but around 20% of cases are ultimately linked to hypoxic-ischemic encephalopathy.

Wrongful Death

In unspeakably tragic cases, the negligent actions of a doctor or nurse result in the death of a young baby. Some parents may be eligible to file a wrongful death lawsuit and pursue compensation.

The leading cause of death in newborn infants is hypoxic-ischemic encephalopathy, which can occur as a direct result of obstetric malpractice.

Every birth injury is unique, and each child will be affected by their injuries in a unique way. But it’s equally true that many birth injuries are entirely preventable. With proper medical care and reasonable interventions, obstetricians, nurses and midwives can avert tragedy and avoid the harm that befalls so many children every year.

How Birth Injury Lawsuits Work

Some families may be able to pursue financial support by filing a birth injury lawsuit. These civil claims attempt to hold negligent medical care professionals accountable for providing substandard care. But in the realm of civil law, “substandard care” has a very specific meaning.

The “Standard Of Care”

Doctors, nurses, midwives and hospitals can only be held responsible for medical mistakes that fall below the “standard of care” – the generally-accepted way of providing a specific medical service.

As you might expect, standards of care change from case to case. What’s right for a person with diabetes isn’t the same as what’s right for a pregnant woman and her child. The legal question, then, becomes extremely specific and, in medical malpractice cases, obstetricians and nurses are judged in comparison to their peers.

Medical Negligence & Malpractice

At trial, the court will attempt to determine what, under the same circumstances, the average, reasonable medical care provider would have done.

Would they have ordered an emergency C-section due to a prolonged second stage of labor?
Interpreted a fetal heart rate test differently?
Prescribed a lower dose of Pitocin to induce labor?

In answering these questions, your family’s attorneys will work toward establishing the standard of care that should have been followed during your child’s birth.

Causation & Financial Damages

The next step is to prove that your own obstetrician violated the standard of care, either acting or failing to act in a medically-unreasonable manner. The final two elements of a successful birth injury lawsuit involve your child’s injuries.

First, you’ll have to prove that the doctor or nurse’s negligence caused the injuries – that, without the medical professional’s negligent conduct, your child would not have suffered the harm that she or he did.

Compensation Available In A Medical Malpractice Lawsuit

The final proof comes in the form of financial damages. How was your family harmed by the medical professional’s negligence? After all, you’re suing a doctor, nurse, midwife or hospital to be made “whole” again, in so far as that is possible through financial compensation. The vast majority of birth injury lawsuits claim a wide range of damages:

Medical expenses, both those incurred in the past and the future costs of your child’s care
Occupational and physical therapy if required to help your child live their best life
Assistive technologies and home modifications
Pain and suffering, damages intended to compensate your child for the experience of physical pain and emotional trauma
Placement in a long-term care facility
Lost earning capacity if your child will be unable to maintain gainful employment

Most families who file birth injury lawsuits will hire a life care planner to help them figure out how much it will cost to properly care for their child, in light of any disabilities or impairments that may have developed.

And since many children who sustain birth injuries will live with disabilities for their entire lives, these life care plans aren’t just focused on the present, but on the future as well.

Your Next Steps

In the wake of a birth injury, parents should take immediate action. Your first priority, of course, is to ensure that your child is being properly cared for now. Ask questions. If you don’t understand why your child is receiving a particular therapy, be assertive. You have a right to know how your child is doing, how they’re being treated and why.

It’s also important to document your child’s injury, as well as the labor and delivery in which the injury was sustained. Demand medical records from the hospital, which can help buttress your case if you end up deciding to take legal action.

And don’t neglect your own experiences. It can be helpful to keep personal notes on the birth of your child; what do you remember from inside the delivery room?

Finally, reach out to a professional. At the least, you should explore your legal options further. Talk to an experienced attorney to learn more about your family’s rights.

Laurence Banville, Esq. is the founder and managing partner at Banville Law, a personal injury firm in New York. Laurence is the coordinator for a national alliance of trial attorneys and one of the lead sponsors at BirthInjuryAdvocate.com.

Thanks Laurence! There’s so much to know, but I urge you to not dig too deep into the details so that your anxiety runs. Just know that there are individuals like Laurence that are here to help in such difficult circumstances.

What questions do you have for Laurence?

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