By Carla Colaianni and Allyson Cox, Attorneys, Smith LaCien LLP
Having a newborn who suffers from a birth injury is heartbreaking for parents. Depending on the extent of the child’s injuries and needs, a family may incur the costs of ongoing medical care, therapy, and home care assistance throughout the child’s lifetime.
An estimated one-third of all birth injuries are caused by medical error or medical negligence. When parents believe that negligence may have occurred, they should consult with an experienced lawyer as soon as possible. A medical malpractice law firm such as Smith LaCien LLP will gather the facts and help determine if the family is entitled to compensation for their child’s lifetime care needs associated with the injury.
This article will cover common birth injuries, types of medical errors, establishing cause through research and expert witnesses, a lifecare plan, and the steps in a trial leading up to a settlement or verdict.
Common Birth Injuries
Birth injuries often happen when doctors, nurses and other medical staff fail at certain aspects of their job. This can be accidental or through negligence. When these shortcomings occur, infants may sustain injuries from minor bruising to disabling conditions. Among the most common conditions that can result from a complicated birth are:
- Brachial Plexus injury: The brachial plexus includes five nerves that run from the neck to the chest and armpit which control shoulders, arms and hands. During delivery, the brachial plexus nerves may stretch, pull or tear, resulting in weakness and immobility. Shoulder dystocia is the most common brachial plexus injury.
- Cerebral Palsy (CP): An infant may develop cerebral palsy when medical staff doesn’t properly manage the umbilical cord, placenta or uterine rupture. CP primarily involves reduced motor functions and lifetime disability.
- Hypoxic Ischemic Encephalopathy (HIE): HIE generally refers to brain dysfunction due to lack of blood flow or oxygen. It may cause developmental delays, cerebral palsy, epilepsy and other cognitive impairments.
Types of Medical Errors
Birth injuries can result from negligence, including miscommunication among the birthing team, administering the wrong medications or dosage, failing to inform a doctor when a fetus shows signs of distress, and improper maneuvering of the fetus during vaginal delivery.
Other mistakes may include failure to order an emergency C-section when indicated, overlooking signs of fetal distress; improper use of vacuum extractors or forceps and failure to treat infant and maternal infections in a timely manner. These failures can result in devastating birth injuries, maternal injuries, or even death.
If parents believe medical negligence may have occurred during the birth of their child, they are bound by a statute of limitations, which limits the time when they can file a birth injury lawsuit. An attorney should be consulted as soon as possible to aid in determining what statute of limitations applies in your case.
How a Birth Injury Lawyer Can Help
Most attorneys begin a birth injury case with a free consultation and case review, assessing the potential client’s case for a valid medical malpractice claim. If they take the case, the client signs a fee agreement and the law firm starts preparing the case. Most law firms take the case on contingency, meaning they do not charge anything unless they win the case.
Once hired, experienced birth injury attorneys will obtain medical records for the pregnancy, and the delivery as well as records for the baby’s care and treatment.
After obtaining and reviewing the relevant medical records internally, birth injury attorneys will typically obtain an expert to review the medical records. In Illinois, medical malpractice lawsuits, unlike other types of personal injury lawsuits, require a statement of merit from a medical expert who has determined that there is a meritorious cause of action. Once this is obtained, a complaint is drafted and filed in the appropriate circuit court.
After the complaint is filed, a birth lawyer will request additional records from the defendants, including policies and procedures, or documentation related to audit trails that keep track of entries made in an electronic medical record through a process known as discovery. Discovery also includes taking depositions of the parties, other witnesses to the baby’s delivery and physicians involved in treating the child.
A plaintiff’s law firm often uses expert witnesses during discovery and at trial which can be a highly informative and persuasive type of testimony. In a birth injury lawsuit, our firm works with extremely skilled experts in fields such as obstetrics, maternal-fetal medicine or neonatology. The expert witness will explain how a doctor or hospital is supposed to act in a certain situation, known as the “standard of care,” and how the defendants deviated from that standard. The expert witnesses will also explain how the defendant’s negligence caused the injury. This is known as “proximate cause.”
In addition to establishing negligence and causation, a birth injury lawyer will also use expert witnesses to demonstrate the “damages” a severely injured child has experienced. At Smith LaCien, we use skilled physicians and certified life care planners to explain to a judge or jury what type of care a severely injured child will need. This could include ongoing therapies, equipment like braces or wheelchairs and home health care. Some children will require 24-hour care for the rest of their lives, long after their parent is able to care for them.
Settlement Negotiations
Some medical malpractice claims, including birth injuries, settle out of court. Many doctors and hospitals want to avoid negative publicity from a public trial, so they may settle for a reasonable amount.
If there is no settlement, then a birth injury case will proceed to trial before a jury. A birth injury trial involves complicated medical issues and detailed testimony from skilled witnesses in many medical disciplines. Given the complexity of a birth injury, it is important that you work with an experienced malpractice attorney.
If you or someone that you care about has been injured or died due to errors or medical negligence in the Chicagoland area, the birth injury attorneys at Smith LaCien can answer your questions or conduct an independent investigation, free of charge. We handle all cases on a contingency basis, which means you won’t pay us anything unless we win. To learn more about how we can help you, call us at (312) 509-8900 or email us at info@smithlacien.com.