You’re entitled to seek compensation for birth injuries caused by medical malpractice. Here’s what you can do if your baby was injured during childbirth.
Most babies are delivered in hospitals by doctors, with a small proportion of babies delivered by certified nurse-midwives.
More than 3.5 million babies are born every year in the United States. As many as 23,000 infants die from congenital disorders, premature birth, and pregnancy complications. ¹
The overall rate of birth injuries is fairly low, roughly two percent. That would be small comfort if your baby were injured during childbirth. ²
The death of any baby is a tragedy, but often it’s nobody’s fault. However, the death or injury of an infant (or mother) caused by medical negligence is malpractice.
If your baby was injured by negligence during childbirth, you have the right to seek compensation for medical expenses, as well as the costs of care and treatment going forward.
Types and Causes of Birth Injuries
Birth injuries can occur because of the baby’s size, the position of the baby during labor and delivery, or complications arising from the mother’s health.
Conditions that raise the risk of a difficult birth include:
- High birth weight: Babies heavier than about 8 ½ pounds are harder to deliver. Diabetic mothers tend to have very large babies.
- Prematurity: Babies born before 37 weeks are more fragile and more easily injured.
- Narrow pelvis: When the size and shape of the mother’s pelvis won’t let the baby pass easily, the baby may be injured by attempting a vaginal delivery.
- Long labor: Labor that is long and difficult, exceeding 18 hours, could put too much prolonged pressure on the baby’s head.
- Baby’s position: Babies are normally delivered head-first. Infants who are positioned to come out shoulder first, or “breech” meaning buttocks or feet first, often must be delivered surgically.
There is an important difference between birth defects and birth injuries:
Birth defects are caused by a health condition or illness that forms while a child is developing in the womb. Some birth defects are caused by dangerous drugs taken by the mother during pregnancy.
Birth injuries are caused by problems that develop during labor or delivery. Birth injuries are often preventable and may be caused by a hospital or physician malpractice.
Medical errors during childbirth may include:
- Failing to recognize and address fetal distress
- Incorrect use of forceps or vacuum extractors
- Application of excessive force
- Lack of oxygen
- Failure to follow up after delivery
- Administration of dangerous medications
- Incorrect dosage of medication
- Failing to perform a cesarean section when required
Case Summary: Jury Awards $78.5 for Childbirth Malpractice
Victoria Upsey was 36 weeks pregnant and suffering from a detached placenta when she arrived at Pottstown Memorial Medical Center complaining of pain and bleeding.
A detached placenta can deprive the baby of oxygen and cause heavy bleeding in the mother.
Rather than quickly delivering the baby by cesarean, the doctor examined Ms. Upsey with an outdated and poorly maintained ultrasound machine. He declared the baby dead.
The hospital called in an ultrasound technician from home, who arrived 81 minutes after the frantic mother had asked for a cesarean delivery.
The technician determined the baby was still alive, prompting an emergency cesarean. The baby girl was delivered alive but permanently disabled from the lack of oxygen caused by the delay.
The attorney for Victoria Upsey and her daughter Parry filed a lawsuit against the hospital and doctors involved in Parry’s birth, alleging negligence and malpractice.
Jurors awarded $65 million for Parrys’ future medical costs, $10 million for her pain and suffering, and $2 million in lost earnings. The jury also awarded $1.5 million to Victoria Upsey for the emotional distress caused by being told that her baby was dead. The verdict totaled $78.5 million.
Building a Strong Birth Injury Claim
Medical malpractice occurs when a doctor deviates from the “medical standard of care in the community,” and as a result, the baby or its mother is unnecessarily harmed.
To prove your child suffered a birth injury because of medical malpractice, you and your attorney must show:
- The doctor, midwife, or medical facility owed you a duty of care.
- What the standard of care should have been for labor and delivery under circumstances similar to yours.
- What the doctor or hospital did wrong or failed to do that violated the standard of care.
- The deviation from the medical standard was the direct and proximate cause of your damages.
- You or your child sustained measurable damages.
Damages from childbirth injuries can include:
- Medical expenses
- Therapy and rehabilitation costs
- Loss of the child’s future income
- Loss of income for the caregiver parent
- Cost of specialized medical equipment like wheelchairs, ventilators, and more
- Pain and suffering endured by the child
- Emotional distress of the parents
Case Summary: $73.2 Million Awarded to Mother and Child
Loranza Botello, who was 36 years old and diabetic when her son was born, believed she could rely on Dr. Jerry McLaughlin and the Pecos Valley Clinic for good medical care.
Older diabetic mothers are known to have very large babies, and very large babies run a high risk of injury during vaginal delivery. Ms. Botello was not properly monitored during her pregnancy and was not offered a cesarean delivery of her baby.
The large baby, weighing 11.5 pounds, was stuck for more than ten minutes in the birth canal, depriving him of oxygen until Dr. McLaughlin used a vacuum extractor to forcibly rip the child from his mother’s body.
The botched delivery left the baby with permanent brain and nerve damage.
Attorneys for the mother and child argued that Dr. McLaughlin and the Clinic neglected to follow the appropriate standards of medical care during Ms. Botello’s pregnancy and delivery.
In August 2018, the jury awarded $19.8 million in compensatory damages to the injured child and an additional $13.3 million to his mother. The jury also granted $40 million in punitive damages, which are intended to punish the at-fault parties for particularly egregious behavior.
When the Hospital Shares Liability
Doctors, midwives and the hospitals they work in are heavily insured. In most cases, both the doctor and the hospital will be named as defendants in a birth injury lawsuit.
Doctors may work as independent contractors or as employees of the hospital. An independent contractor is paid directly by the patient and the patient’s health insurance company, rather than by the hospital.
Doctors who work as independent contractors normally have “privileges” to work in the hospital, which means the doctor is qualified, as determined by the due diligence of the hospital, to practice obstetrics or other medicine.
The hospital is required to do extensive background checks, checking references, licensure, and more, before giving a doctor privileges to practice in the hospital.
The relationship between a hospital and a doctor working as an independent contractor can be complicated. The hospital may not be able to monitor the independent doctor’s behavior like it would for an employee.
To win a lawsuit against the hospital, your attorney may use evidence showing the hospital knew or should have known the doctor had a history or reputation for negligence, and despite that knowledge, continued to permit the doctor to deliver babies.
Hospital liability is clearer when the doctor (or midwife) is a hospital employee. Most states follow a “respondent superior” doctrine, meaning employers must answer for the actions of their employees.
While the hospital may not have directly contributed to your child’s birth injury, if the doctor was “acting within the scope of employment” during your birth experience, the hospital may be held directly liable for the baby’s injuries and resulting damages.
Attorneys Win Bigger Verdicts
If your baby sustained minor injuries during childbirth with no lasting effect, you probably wouldn’t get very far with a malpractice lawsuit, even if the doctor or midwife was negligent. Unless you have extensive, measurable damages, like extra medical bills, it’s not worth it to sue.
Whether or not you file a lawsuit, you can file a complaint with the state medical board.
Once the complaint is filed, an agent from the state board will be assigned to investigate the allegations. If the allegations are true, the doctor may be reprimanded, lose hospital privileges, or have their license suspended or revoked.
Trying to deal directly with the malpractice insurance company will cost you.
Insurance companies are not interested in the well-being of your child, or your grief from the wrongful death of your baby. Even if the insurance company offers you a settlement, you can be sure it’s only a fraction of what your claim is worth.
You’ll need an experienced medical malpractice attorney to get anywhere near the amount of compensation you and your child deserve.
Birth injury claims are complicated, and malpractice lawsuits can be expensive. You’ll need an attorney who can advance the funds to cover the cost of record reviews, medical experts, deposition expenses, and more.
Attorneys who handle malpractice cases usually don’t charge for their initial consultation and will represent injured clients on a contingency fee basis. That means your attorney’s fees won’t be paid unless your case is settled or you win a verdict in court.
Don’t settle for less. You deserve fair compensation for tragic birth injuries. There’s no cost to find out what a skilled attorney can do for you.
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