Articles Posted in Birth Injury

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As medical malpractice attorneys some of the saddest cases we deal with are those where a child has suffered a birth injury. These cases include those where a baby is injured during or before birth by a medical professional’s careless or intentional acts. These injuries happen too often. According to a report by the Centers for Disease Control and Prevention (CDC), in 2006 alone in 19 reporting states there were 2,073,368 births that involved a significant birth injury. These injuries included skeletal fractures, hemorrhages, and peripheral nerve damage. Most birth injuries are relatively minor and heal on their own with time. But some are quite serious. Below we discuss five of the more serious possible birth injuries.

Cerebral Palsy

Roughly 2 or 3 out of every 1,000 children have cerebral palsy. According to the Mayo Clinic cerebral palsy is a “disorder of movement, muscle tone or posture that is caused by an insult to the immature, developing brain, most often before birth.” Kids can start to show symptoms in infancy or as late as the preschool years. This disorder can cause difficulties with movement including walking. Some people with the disorder have difficulty swallowing or have eye muscle imbalance. They may have reduced range of motion due to muscle stiffness. Some patients suffer intellectual disabilities. Epilepsy, blindness, and deafness can also co-occur.
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Expectant mothers have many safety concerns to consider. During pregnancy there are all the prescriptions as to what sorts of food, drink, and behavior may have an effect on the developing fetus. Then comes concerns about the safest way to give birth and whether the risks of medical malpractice, particularly birth injuries, make alternatives to hospital birth more appealing. Now unfortunately there is one more safety concern pregnant women have to concern themselves with: the potential dangers of keepsake ultrasounds. These are not the ultrasounds performed by a medical professional as a part of prenatal care. Rather than are ultrasounds performed by private businesses to create keepsake videos or photos for expectant parents.

FDA Warns Against Keepsake Ultrasounds
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One of the most horrifying experiences that could happen to a new mother and father is complications during the birth of their child. When those complications lead to the child suffering from a brain injury, the effects will last a lifetime. There are three main causes, or mechanisms, by which brain injuries occur in babies either during or shortly after labor and delivery. These include, insufficient oxygen to the brain, trauma and reduced glucose.

Insufficient Oxygen

Brain injury due to insufficient oxygen supplied to the brain is a frequent cause of brain injury during birth. There are many ways in which oxygen deprivation can occur during labor and delivery. While a baby is still in the womb, the baby receives oxygenated blood from the mother through the umbilical cord. If anything happens to the baby’s oxygen supply, brain damage can result. Umbilical cord compression, penta abruption (when the placenta detaches from the uterine wall prematurely) and ruptures of the uterus can all deprive a baby of oxygenated blood thereby causing brain damage.

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Medical malpractice arises when a doctor, hospital, nurse or other medical professional fails to provide reasonable care, i.e., acts negligently. When negligence occurs during or around the time of pregnancy or birth of a baby, it may be grounds for a birth-related medical malpractice claim. There are several situations that can bring about a birth-related medical malpractice claim. Below is an overview of the types of claims, which may be brought.

Wrongful Birth/Wrongful Pregnancy

In some states, there is a difference between a wrongful pregnancy claim and a wrongful birth claim. In Illinois, however, the state Supreme Court has held that the terms are disjunctive and are one in the same claim: wrongful birth.

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In a medical malpractice lawsuit, like many lawsuits grounded in tort claims, judges and juries are empowered to award both economic and non-economic damages. Economic damages generally represent losses of income, costs of medical expenses both past and future, compensation for one’s lost ability to early a living on top of losing their normal income, as well as other more easily measurable financial losses as a result of the malpractice. Non-economic damages are awarded for pain and suffering and loss of companionship among other not-so-easily measurable injuries resulting from malpractice.

Some state legislatures have capped the amount of non-economic damages that patients can be awarded, while others do not. Limits on pain and suffering awards are very controversial, with some clamoring for tort reform to protect medical providers from staggeringly high damage awards, while others believe it is up to judges or in most cases juries, as finders of fact, to make that determination on a case-by-case basis without limits.

Cases Spurn Effort to Eliminate Caps

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To the uninitiated, many think of a medical malpractice lawsuit as a claim brought for the purpose of holding a provider accountable, as well as obtaining economic and/or non-economic damages. Presuming victory, these damages will also include attorney’s fees, which for the plaintiff are contingent upon victory in the case. On top of damages, costs will also include payments and incidental expenses (such as travel, food, lodging) for expert witnesses who are compensated for their time and expertise. Additionally, the loser may have to pay defendant’s litigation costs and fees should the defendant prevail on the merits. In these cases, litigation can be a risky venture if the plaintiff fails. Not only do they fail to hold the other party accountable and reap an award, but they may have to pay the other party’s costs on top of their own. This also adds insult to injury, when the family still must deal with the emotional pain of injury or death to a loved one that can never be remedied.

A Staggering Bill in Colorado

In Colorado, a judge ordered a family to pay $340,000 in legal fees for a defendant hospital after losing in their case against it. During the birth of their child, the child was deprived of oxygen while still in the womb. The child was not breathing and failed to exhibit a heart rate for a stretch of thirteen minutes, which resulted in permanent brain damage. The child, now four years old, will always require medical care and assistance. His parents sued the hospital, arguing that the doctor and nurses failed to diagnose when there were indications of oxygen deprivation. The family lost, however, when a jury found for the hospital.

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A couple successfully sued an Illinois hospital and several doctors and nurses for a severe brain injury that occurred during the caesarian section of their son. The couple was awarded $28 million in a judgment entered by a federal judge.

The Federal Tort Claims Act

While the vast majority of birth injury cases are litigated in state court, the Federal Tort Claims Act provides an alternative avenue for families seeking compensation in traumatic birth injury or brain injury cases. The Federal Tort Claims Act, or FTCA, allows plaintiffs to sue the United States for torts such as negligence that are committed by individuals working for the United States. These cases must be conducted in federal court, but the federal judge applies the tort law of the state where the act occurred. While the United States usually holds sovereign immunity and cannot be sued, the FTCA is an exception to sovereign immunity and treats the United States much like a private citizen in that it can be liable for torts committed by those acting on its behalf.

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Medical malpractice is the colloquial term that refers to professional negligence for doctors, nurses and similar workers. Some residents often confuse this idea with the general concept of a poor medical outcome.

Is malpractice in play anytime that a patient suffers a sudden or unexpected medical complication? Not quite.

Instead, the only analysis that counts is comparing the conduct of medical professionals in a specific case with the conduct of the reasonably prudent medical professional in a similar situation. In other words, for legal purposes, the focus is on the specific actions of the medical professionals, not necessarily the exact outcomes of any given medial case.

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While a great deal of attention has been directed towards conflicts between religious freedom and access to contraception, a new suit against a Catholic hospital may have ramifications for medical malpractice law in the coming years.

This week the American Civil Liberties Union filed suit against the United States Conference of Catholic Bishops in Michigan federal court. The ACLU is suing on behalf of Tamesha Means and pleads that Means did not receive accurate information or treatment in a Catholic-affiliated hospital in Muskegon, Michigan.

On Means’ behalf, the ACLU alleges that she sought treatment from Mercy Health Partners, the only hospital in her county, when her water broke in the eighteenth week of pregnancy. Means says she was not told her fetus could not survive or that there were risks if she continued her pregnancy, nor did the hospital admit her for observation. She returned the next morning, bleeding and in pain, but was sent home; she returned that evening with a fever, and miscarried while at the hospital. According to medical experts who have reviewed Means’s case, the fetus had “virtually no chance” of surviving, and that in such circumstances doctors would ordinarily induce labor or surgically remove the fetus to reduce the mother’s chances of infection. Dr. Douglas W. Laube, an obstetrician from the University of Wisconsin Medical School, described Means’s care as “basic neglect.”

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Medical malpractice lawsuits refer to those instances where professional negligence by a medical caregiver is alleged. The term refers to all cases of this sort, regardless of the specific injury that results. In the most extreme cases, a patient may pass away as a result of the inadequate medical care. At those times, a wrongful death lawsuit may be filed. While there is much nuance, wrongful death lawsuits make distinct legal arguments that are somewhat different than those filed by a patient on their own behalf for an injury after mistreatment. The complexities of this distinction is just one of many reasons why it is important to seek out the aid of an experienced med mal attorney as soon as possible after harm to protect your rights.

Infant Death During Delivery

Unfortunately, one of the most common situations where medical malpractice is alleged to cause a death involve childbirth. Thousands of children are delivered every day. But just because the procedure is common does not mean that it is without risks. In fact, many families only learn too late of the serious nature of childbirth and the consequences when problems develop and are not handled properly.