The miracle of pregnancy and birth is a wonderful and complicated process, which unfortunately can sometimes go horribly wrong, resulting in painful, debilitating or permanent injuries to the fetus or baby. Sometimes the injury is an unavoidable part of the process of carrying and delivering a baby, but sometimes the injury is the direct and avoidable result of a negligent medical professional, in which case the injury will be considered a birth injury or birth defect. If you believe the injury to your child could have been avoided with proper medical care, you should seek the advise of a birth injury lawyer or birth defect attorney, who can protect your rights and those of your child.
Most birth injuries or defects are caused in one of two general ways, either through medication or through a physicians negligence. There are many variations in both cases, which differ greatly from case to case. Your birth injury lawyer will sort through the facts of your case and help you understand which category best suits your child’s injuries.
The first common birth injury category includes birth injuries cased by a medical professional’s negligent or substandard care. In these cases, the physician did not correctly diagnose, treat, respond to, or asses the various conditions that might create danger to the fetus during pregnancy. The doctor might fail to diagnose a dangerous condition such as hypertension. A medical professional might neglect to perform a necessary Caesarian Section, use medical devices improperly during pregnancy or delivery, or deliver a faulty assessment of a baby’s general health and well being. These cases your birth injury attorney might encourage you to pursue a lawsuit against the hospital or clinic where the treatment took place as well as the physician or medical professional responsible for your care.
The second type of birth injury case involves prescription drugs taken by the mother, under medical supervision, that cause harm to the fetus, resulting in a birth defect. In these cases, the drug manufacturer may be held accountable, as well as the pharmacist who filled your prescription.
Birth Injury Vs Birth Defect.
If a baby is born with an injury, it is often not readily apparent if the harm was caused before or during birth. One example of this type of question is whether a child with Cerebral palsy was harmed by a birth defect that could not have been prevented, or a birth injury that occurred when the baby was deprived of oxygen during delivery. Your birth injury attorney will be able to explain these differences to you, and help you determine if you have grounds to file a birth injury lawsuit.
If an injury is caused because a medical professional fails to provide adequate care to an expectant mother, it may be considered grounds for a birth injury lawsuit. If an expectant mother is given prescription drugs that harm the baby, that is considered a birth injury, as would any harm caused by negligence during the delivery. Birth injuries can also arise from a physician failing to correctly assess and treat any complications or circumstances during the pregnancy or the delivery.
Under personal injury medical malpractice laws, improper use of certain medical devices, such as a vacuum or forceps, can cause a legally avoidable injury to the baby. Unfortunately, not all birth injuries are avoidable, and not all will result in a successful birth injury settlement. Sometimes the physician does everything he or she could possibly do to prevent the harm, and the child is still injured. Your birth injury attorney will help you decide if the injury to your child will be considered legally avoidable in a court of law.
Birth defects are more common than birth injuries, composing about seven percent(7%) of all births. Birth defects are caused by a variety of factors such as genetics and environment, and can range from slight irregularities to severe deformities or conditions. Birth defects exist before birth and are not created by the process of delivery. Sometimes it is impossible to prove the cause of a birth defect, or the mother’s actions (such as drug use or alcohol consumption during pregnancy) caused the harm. In cases of genetic birth defects, it is rare that a birth defect lawsuit will be successful. Your birth injury lawyer will advise you if you have a legally valid birth injury claim.
In the instances where a birth defect is caused because of prescription drug use during pregnancy, a birth defect may be considered a birth injury, due to the negligent prescription of a harmful medication. These substances are called teratogens, which refers to a chemical or other agent that adversely effects the developing fetus, resulting in a birth defect. These drugs were commonly used to “help” pregnant women before their disastrous side effects were known. Generally, a teratogen is administered without the physician having any knowledge of it’s harmful effects. Your personal injury birth injury attorney will fight to make sure that your child is compensated for his or her injuries.
How to Prove Your Case
In most medical malpractice cases, including birth injury and birth defect cases, the most reliable forms of evidence used to prove negligence are medical records and the expert testimony of experts, usually other physicians. If your physician did not deliver the legal standard of care expected of someone in their field both during your pregnancy and during your delivery, it will be considered negligence. A highly trained specialist, such as your OB-GYN, (Obstetrician-Gynecologist) will be held to a high standard of care as befits their high level of specialized training. A medical expert in the same field as your physician will be able to explain the standard of care expected of a certain type of physician or medical personnel to the jury, and how your physician did not fulfill this legal obligation to you and your child.
Your birth injury attorney will play a very important part in the litigation process, by explaining the medical records and statistics that pertain to the case, as well as arguing your side and defending you from the defensive actions of the physician’s medical malpractice lawyers. Medical malpractice cases are often difficult to prove because they concern such complicated medical issues. A birth injury medical malpractice attorney must be able to prove that a physicians deviation from the standard of care directly resulted in the injury to your child. This can be a complex issue, so you need to be sure to retain a medical malpractice birth injury lawyerwho is skilled in birth injury and medical malpractice litigation.
A Breakdown of the Two Main Types of Birth Injury Claims
Negligence of Medical Caregiver.
In this case, the lawsuit is against your attending physician, OB-GYN, nurse, medical professional or medical facility. These cases usually encompass injuries sustained during delivery. In these cases, your birth injury attorney will be responsible for proving the following sequence of causation.
- The defendant owed you and your child a certain legal standard of care.
- The defendant failed to act in a reasonably competent manner under the circumstances, thus breaching their legal duty to you and your child.
- This Breach in the standard of care caused direct harm to you and/or your baby.
Your birth injury lawyer will use medical records, expert witness testimony and skilled litigation to prove these three aspects, and win you a fair settlement.
Prescribed Drug Use
In these cases, It is not an injury sustained during delivery, but a condition that existed before birth but was caused through the mother’s use of prescription drugs during her pregnancy. If a drug was prescribed to you while you were pregnant that caused harm to your unborn child, your birth injury attorney will usually file a claim against the pharmaceutical company that produced the harmful drug, the physician who prescribed it, and possibly the pharmacy or pharmacist who filled the script. These individuals may all be held accountable for the birth injury through a failure to inform the mother of the risks of taking the medication while pregnant.
In these cases your birth injury lawyer will try to prove the following sequence of causation
- The expectant mother took the medication in question during the pregnancy in question.
- The mother took the drug because it was prescribed to her by a physician or other health care provider.
- The birth defect is not likely to be caused by an alternate genetic factor or natural disease.
- The drug in question is capable of causing such a birth defect
- The drug in question did, indeed, cause the birth defect.
Your medical malpractice birth injury lawyer will usually focus on expert witness testimony to convince the jury in these complicated cases. Pharmaceutical companies generally retain big name defense attorneys, so it is important to retain a birth injury lawyer who is skilled at litigating such complex issues.
Collectable Damages in Birth Injury Lawsuits
If the child in question is still alive, the settlement will usually be awarded to him or her, either directly or through a trust. In some cases the parents may collect direct compensation for emotional pain and suffering. Having an experienced birth injury attorney on your side will help increase the likelihood of a fair settlement for both you and your child.
Recent legislation has limited the kinds of damages that may be collected in a birth injury lawsuit, but those that remain do not always have a cap set on the amount it is possible to collect. You may be able to collect compensation for medical expenses and expected future costs of raising and caring for a disabled child, as well as pain and suffering for both parents and child. The child might be compensated for the loss of their future earning potential. Your birth injury lawyer will argue for all of the settlement categories that might apply in your case, in order to provide you with the highest level of compensation possible.