Articles Posted in Birth Injury

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

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.

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.

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.

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.”

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.

A new infographic is making its way around the web this week that touches on a wide range of general medical malpractice issues. The visual attempts to put into perspective some basic statistics about medical malpractice and legal liability.

For example, the image discusses those states which currently have laws on the books placing an arbitrary cap on damage awards in in these cases, ranging from $250,000 to $785,000. It shares the most recent data which shows a decline in total med mal legal payouts over the last eight years, peaking in 2003 and decreasing by over a billion dollars annually by 2011.

Back Through the Ages: Landmark Med Mal Cases

Few legal news stories have generated more debate and argument in recent weeks than that involving the horrific abortion clinic work of Dr. Kermit Gosnell. Obviously abortion is an incredibly volatile issue with a myriad of political implications. Social networks have been alight as those urging the banning of all abortions verbally spar with those who support its legality in some circumstances.

However, beyond the emotional political drama raised by the case, the Gosnell matter is also an indication of the damage that a single doctor can cause who provides substandard medical care to countless patients. While the Gosnell case is an extreme example, it is still worthwhile to use it as a general reminder of the need to be incredibly vigilant when seeking out medical care, no matter what the medical issue.

Deadly Medical Care

Some legal researchers have identified that misconceptions about injury cases–including Illinois medical malpractice lawsuits–are often rooted in the way that the suits are covered by the media. In particular, the only time that a lawsuit reaches a mass audience is when the plaintiff wins the case, usually for a large amount. Other than that, most community members who do not file a suit themselves have little understanding of the overall dynamics of the legal system or the usual outcomes.

All of this leads to skewed public perceptions, with many thinking that most cases end with plaintiff’s winning millions of dollars after jury verdicts at trial. That is not at all the case. Instead, defendants are just as likely to win in these matter when brought to trial (the burden of proof is in their favor). And even when plaintiffs do win, the judgements are often nowhere near as large as those that make headlines.

Each Chicago medical malpractice lawyer at our firm understands the need to break those stereotypes. After all, false assumptions about the civil justice system has led many community members to mistakenly support legislative changes which take away rights of injury victims. The first step in reversing those misguided actions is presenting an honest picture of the civil justice system and its operation.

When problems develop during childbirth most assume the same thing: I hope the child is OK. However, a new report from the Center for Disease Control and Prevention (CDC) suggests that we also need renewed focus on possible harm facing mothers during a birth.

Of course, in the past, childbirth has always been an incredibly dangerous time for mothers. In less developed parts of the world the material death rate remains shockingly high. While we recognize the risk elsewhere, in the United States there is a somewhat unacknowledged assumption that mothers will be fine during a delivery. The high risk of death during childbirth is a thing of the past–now the risk is very small.

Obviously vast improvements have been made over the decades on this front, but the problem has not gone away entirely. In fact, in some ways the risk of harm to the mother during childbirth has increased in recent years. It is vitally important that all of us understand this risk and that medical professionals act reasonable at all times to ensure mothers are not hurt in preventable ways as a result of inadequate response to maternal health complications during a birth.

Lawyer Monthly - Legal Awards Winner
The National Trial Lawyers
Elder Care Matters Alliance
American Association for Justice
Fellow Litigation Counsel of America
Super Lawyers