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As a new mom, certainly, the last thing you want to be thinking about is a birth injury lawsuit. However, there are instances where you might work with a personal injury lawyer to file one of these suits.
Beforehand, what should you know?
The following is a brief overview of birth injury lawsuits.
What is a Birth Injury Lawsuit?
Birth injury lawsuits can help families affected by conditions such as cerebral palsy, Erb’s palsy, or other conditions by awarding them compensation. Birth injury lawsuits are filed against doctors and nurses, and other medical professionals who could be responsible for injuries to a child.
If your child suffered a birth injury, you could receive compensation to cover your expenses. For many families, birth injuries lead them into bankruptcy because of health care costs.
Birth injury lawsuits are typically characterized as medical malpractice, but they can also include wrongful death birth injuries.
You can bring justice to the medical professionals who delivered your child. There’s also likely to be more of a sense of closure for you.
You might also be helping other families who are going through something similar by bringing attention to these cases.
The financial compensation you’re awarded in a birth injury lawsuit can cover the medical costs, including past and future expenses. It can also compensate for the required home modifications and adaptive equipment, emotional damages, physical therapy, and rehabilitation.
Essentially, birth-related malpractice claims stem from medical staff not using reasonable care, which is called negligence.
This can mean injury to the mother as well as the child, wrongful birth, or wrongful pregnancy.
Who Can File a Suit?
A parent can file a suit on behalf of their injured child. A child isn’t legally able to bring a legal claim. Parents can also bring a suit to recover their own damages, like their out-of-pocket medical expenses.
The mother can file a suit individually if she’s injured during delivery. The father can sue individually if the mother dies as a result of error. The father can actually bring a suit for his own wrongful death claim and also on behalf of the child.
Birth Injury vs. Defect
It’s important when talking about these types of medical malpractice cases to recognize there’s a difference between a birth injury and a birth defect.
A birth injury is the result of a doctor’s and staff’s actions or inactions. It’s preventable.
A birth defect, regardless of the actions of the medical staff, isn’t preventable.
Birth defects occur during pregnancy and may stem from multiple factors, including environment and genetics.
Birth injuries often occur because of a doctor’s lack of a proper response to a condition that arises during delivery, or perhaps a doctor’s lack of appropriate prenatal care.
As an example, a doctor may not perform a cesarean section when it’s needed or might not appropriately respond to signs of fetal distress.
Improper use of forceps can lead to brain or head injuries, which is another one of the most common reasons to bring a birth injury lawsuit.
Another example would be if a doctor prescribed a medicine that negatively affects the baby or doesn’t diagnose a condition that could lead to delivery complications.
What Has to be Shown in a Successful Birth Injury Claim?
If you’re suing for birth injuries, you have to prove the defendant, which is the doctor or medical organization, owed a legal duty to provide care to the baby and that the defendant breached that duty. The legal standard is to show the defendant failed to act as another reasonably competent medical provider would have acted.
An expert witness is often used in medical malpractice cases. They go over records and determine what the proper protocol would have been to avoid injuries in a similar situation.
Statute of Limitations
With medical malpractice and personal injury claims, you have to file within a certain period of time known as a statute of limitations. With a few exceptions, if you don’t then you lose your opportunity to file a lawsuit ever.
The statute of limitations varies depending on the state, but it’s usually within two years after the birth injury occurs.
A traumatic birth and particularly one leading to injuries can change the course of your life. If you’re a new mom and this happened to you, speak with a personal injury lawyer experienced in handling these types of cases.