Each year, tens of thousands of newborns in the United States are diagnosed with birth injuries. These injuries result from a variety of different causes; and, while some of them are unavoidable, many are not.
This is an unfortunate reality of our modern healthcare system. Despite the increasing costs of healthcare—including the soaring costs of labor and delivery—medical mistakes remain alarmingly common. In fact, among children and adults, medical mistakes are the third leading cause of death in the United States.
But, a medical mistake does not have to be fatal to have devastating consequences. This is especially true when the patient who suffers harm is a newborn child. If your child has been diagnosed with a birth injury that your doctor either caused or failed to prevent, you may have a medical malpractice claim, and you should speak with a lawyer about your family’s legal rights.
Understanding Your Legal Rights as a Parent When Your Child Suffers a Preventable Birth Injury
To understand your family’s legal rights, it is first important to understand the nature of birth injuries. As we said in the introduction, some birth injuries are not preventable. Whether due to genetics or natural occurrences, in some cases doctors simply don’t have an opportunity to prevent a birth injury from occurring.
But, many birth injuries are preventable, and the list of birth injuries that are now preventable continues to grow with new advancements in modern medicine. Today, doctors at well-funded hospitals have extraordinary diagnostic capabilities, and timely diagnosis can often afford the opportunity to address issues before they lead to long-term complications.
With all of this in mind, when can a newborn’s birth injury be attributed to medical malpractice?
3 Leading Causes of Preventable Birth Injuries
Broadly speaking, the medical mistakes that result in birth injuries can be divided into three categories: (i) failure to detect, (ii) failure to prevent, and (iii) failure to treat.
1. Failure to Detect
Many medical malpractice cases involving preventable birth injuries fall into this third category. Diagnostic errors are among the most common forms of medical malpractice, and diagnostic errors at any stage of pregnancy, labor, delivery, or neonatal care can put fetuses and babies at risk. This includes not only diagnostic errors related to the assessment of the fetus’s or newborn’s health condition but diagnostic errors related to the assessment of the mother’s condition as well.
2. Failure to Prevent
Once a doctor detects a health risk (or a potential health risk), the doctor has a duty to take appropriate steps to prevent unnecessary harm. Whether as a result of inadequately explaining the risk or providing inadequate or negligent care, violating a doctor’s duty of care with regard to prevention will also entitle parents to medical malpractice compensation in many cases.
Failure to prevent can also involve making mistakes during labor or delivery. For example, improper use of forceps, improper use of vacuum extractors, and mistakes during cesarean section (C-section) deliveries are also common (and preventable) causes of birth injuries. Here, too, when a doctor fails to exercise due care to prevent a birth injury, the doctor, hospital, or the doctor’s medical malpractice insurer can often be held accountable.
3. Failure to Treat
From oxygen deprivation in the womb to shoulder dystocia, many types of birth injuries present risks for long-term complications. However, with timely treatment, these complications can often be prevented. Timeliness is key; and, when a baby is born with a birth injury, the family’s doctor must respond appropriately to provide necessary treatment before it is too late. Even if a birth injury itself is not preventable, failure to prevent unnecessary complications can still constitute medical malpractice.
Proving the Cause of a Preventable Birth Injury
Unfortunately, even when it is clear that a doctor’s mistake is to blame for a newborn’s birth injury, doctors, hospitals, and their insurance companies will still try to deny responsibility. As a result, parents must be able to prove the cause of their child’s injury to pursue a successful medical malpractice claim.
While there are several ways to prove a birth injury (with specific options depending on the nature of the injury), timeliness is key here as well. In this case, however, it is the parents who should act promptly. If you believe your child’s medical condition may be the result of medical malpractice, you should speak with a lawyer right away so that your lawyer can conduct an investigation and hire an independent medical expert if necessary.
When working to prove the cause of your newborn’s birth injury, your lawyer will examine all possible factors. Based on the nature, severity, and timing of your child’s injury, your lawyer will begin to narrow down the options until arriving at one clear cause. Some examples of possible causes your lawyer may consider include:
- Failure to diagnose conditions in the womb (i.e., gestational diabetes, placenta previa, or Rh incompatibility)
- Delayed diagnosis of other maternal or fetal risk factors
- Failure to maintain an adequate oxygen supply during pregnancy, labor, or delivery
- Medication errors (i.e., anesthesia errors or prescribing dangerous medications)
- Improper birthing techniques (i.e., improper use of forceps or vacuum extractors)
- Surgical errors during C-section delivery
- Failure to diagnose and treat health risks after delivery
These are just examples. If you have concerns about a specific error you believe your doctor made at any point during your (or your child’s) care, you should discuss your concerns with your lawyer. In many cases, new parents are in the best position to identify concerns, and their input can help quickly steer their lawyer’s investigation in the right direction.
Calculating the Costs of a Birth Injury Caused By Medical Malpractice
Preventable birth injuries can be incredibly expensive; and, if your family has a medical malpractice claim, you are entitled to just compensation for all of the costs of your doctor’s mistake. However, just as it is up to you to prove your right to compensation, it is also up to you to prove how much you are entitled to recover.
Importantly, the costs of treating your child’s condition may represent just a fraction of your family’s losses. This could be true even if your family will incur hundreds of thousands or millions of dollars in medical bills over your child’s lifetime. Lost earnings, pain and suffering, loss of companionship, and loss of enjoyment of life are also “compensable” losses under Florida law, and these losses will substantially exceed families’ medical bills in many cases.
How do you calculate these losses? Here, too, asserting your family’s legal rights requires experienced legal representation. As you move through the process with your lawyer, your lawyer will gather the information he or she needs to determine what is reasonable in light of the circumstances your family is being forced to endure.
Answers to Common Questions about Medical Malpractice Claims Involving Birth Injuries
If you have questions about your family’s legal rights now that your child has been diagnosed with a birth injury, you are not alone. This is not an easy situation; and, while preventable birth injuries are far more common than they should be, no two family’s circumstances are exactly alike. As a result, understanding what you can—and should—do is not easy, and it will be important for you to rely on professional advice as you move forward.
Here are the answers to some common questions about medical malpractice claims involving birth injuries:
What If My Doctor Told Me about the Issue Before My Child was Born?
The simple fact that your doctor identified an issue before your child was born does not mean that your doctor met his or her duty of care. If your doctor failed to adequately explain the risks associated with the issue, or if your doctor failed to provide appropriate treatment (or treatment recommendations), you could still very well have a claim for medical malpractice.
Additionally, another unfortunate reality of modern medicine is that some doctors will try to cover up their mistakes in order to avoid liability. So, while your doctor may have made it seem like he or she was being proactive, the reality could be that your doctor did not disclose all of the facts you are entitled to know.
What if My Doctor Says My Newborn’s Birth Injury Was Not Preventable?
If your doctor says your newborn’s birth injury was not preventable, you should not take your doctor at his or her word. This is true in all cases, but it is especially true if you have concerns about the quality of care you or your child received. Simply put, your doctor might not be lying. Or, even if your doctor is not intentionally misleading you, your doctor may not be aware that there was something he or she could (and should) have done differently to protect your child.
How Soon After My Child’s Birth Should I Talk to a Lawyer if I Have Concerns about Medical Malpractice?
If your child has been diagnosed with a birth injury and you have concerns about medical malpractice, you should talk to a lawyer promptly. There is no reason to wait; and, the sooner you contact a lawyer, the easier it will be for your lawyer to help you. Your lawyer will be able to deal with your healthcare provider (and its insurance company) on your behalf, and this way you won’t have to worry about saying or doing anything that could jeopardize your family’s legal rights.
What if you have waited to talk to a lawyer? That’s okay, but you should not wait any longer. Parents have several years to file medical malpractice claims in birth injury cases, so there is a very good chance that you still have time to file.
Where Should I Take My Child for Treatment if I Have Concerns about Medical Malpractice?
If you have concerns about medical malpractice, you should not take your child back to the same doctor or hospital. You also should not visit any affiliated medical facility. If you aren’t sure where to go for treatment, our lawyers can help you with finding a reputable healthcare provider who specializes in treating children who have been diagnosed with your child’s condition. We work closely with several specialists who routinely assist with evaluating and proving our clients’ legal rights.
Ultimately, if you have questions about your legal rights—or if you have any concerns about your child’s health—you owe it to yourself and your family to get professional help. We are here for you, and you can schedule a free consultation with one of our Florida medical malpractice lawyers at a time and location that are convenient for you.