Articles Posted in Birth Injury

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“Today, this is the most dangerous place in the developed world to give birth.”                                                                          -USA Today: “Hospitals know how to protect mothers. They just aren’t doing it.” (July 27, 2018)

Last Friday, USA Today published a report with findings from their investigation into hospital records and personal stories and has concluded that hospitals are failing mothers by missing symptoms that indicate serious maternal complications. The report, entitled “Hospitals know how to protect mothers. They just aren’t doing it.,” shared the CDC’s statistic that 50,000 women a year in this country suffer a serious complication during delivery. Around 700 mothers die a year.

These statistics alone might not sound significant given that there are nearly 4 million births a year in the U.S., but the frightening part is that despite being a wealthy, industrialized country, our maternal death rate is getting worse and is the WORST of any developed country. We are the only country besides Sudan and Afghanistan whose maternal death rate is on the rise, despite the belief by many that we have the best care in the world.

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The Center for Justice & Democracy, a consumer rights advocacy group out of New York Law School, has compiled a review of medical malpractice incidents and has publicly shared their findings. Entitled “Medical Malpractice: By the Numbers,” the briefing examines recent medical studies and investigations of both inpatient and outpatient groups and facilities such as hospitals, nursing homes, home health agencies, and hospice organizations.

The data brings deficiencies in medical care into the spotlight, specifically the care Americans receive within hospitals. Below is a summary of information from the report our medical malpractice attorneys think is particularly informative and worth sharing. All data sources can be found in the CJ&D briefing. We have included the page number of the report that contains the source for each statistic.

HOSPITALS:

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A nearly year long joint NPR/ProPublica investigation into the rising rate of maternal deaths in the U.S. has uncovered the pivotal role that midwives play in the safe delivery of babies. Mothers in the U.S. are dying at a rate three times greater than that of the next closest industrialized country. According to ProPublica, maternal death rates per 100,000 live births are as follows:

  1. United States = 26.4%
  2. France = 7.8%
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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.