Most babies are delivered in hospitals by obstetricians, gynecologists, neonatologists, and other doctors with specialized training in obstetrics. A small minority of babies are delivered by midwives. Unfortunately, some babies are injured during the birthing process. According to the Center for Disease Control (CDC), each year six out of every thousand children born in the United States are injured during birth.
Some birth injuries are unavoidable. For example, if a baby is too large or the mother’s pelvis is too narrow, it may take a very long time to deliver the baby, during which the baby might be deprived of oxygen and suffer brain damage. Unfortunately, some other birth injuries occur due to the negligence of the delivering doctor.
When a child is injured during birth, the results can be devastating. Birth injuries often have life-long consequences, and caring for a child injured at birth can cost large amounts of money. Because of these costs, parents are often left with no choice but to file a birth injury lawsuit.
Any mistake during delivery can potentially harm the child. There are a number of reasons mistakes occur. The medical practitioner may not have the specialized training required to deliver babies, or the doctor may have failed to keep current with the latest in obstetric medical technology. She may be exhausted, inattentive, unable to effectively communicate with the attending staff, or may simply be incompetent.
Common mistakes during the birthing process include:
- Failing to recognize and address fetal distress
- Incorrect use of forceps
- 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
Do you have a medical malpractice case?
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. While a doctor’s negligence may constitute malpractice, unless his actions result in serious injury, you probably don’t have a valid birth injury lawsuit.
Example: Deprived of Oxygen
During delivery, an obstetrician failed to recognize the child was in fetal distress. The child’s head was too large and the mother’s pelvis too narrow. Proper medical protocol would have been to perform an emergency cesarean section.
Disregarding the protests of his attending medical team, the doctor continued toward a normal delivery, and as a result, the baby was deprived of oxygen for a short period of time. Fortunately, the baby wasn’t deprived of oxygen long enough to cause any damage, and was delivered in perfect health.
In this case, while the results could have been catastrophic, fortunately neither the baby nor its mother sustained an injury.
A legitimate birth injury lawsuit requires proof of negligence (medical malpractice) and proof of harm to the child or its mother. In the above example, only half of the equation is present. While the parents may not have the basis of a lawsuit, however, they do have some options.
The parents can file a complaint with their state’s 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 his hospital privileges, or have his license suspended or revoked.
What to do if your baby was injured at birth…
If your child was injured during childbirth, you should immediately seek remedial medical care. It’s crucial for the safety and well-being of your child. After getting the necessary care, contact an attorney experienced in medical malpractice law. Most reputable attorneys don’t charge for initial office consultations.
Representing yourself in a birth injury lawsuit is a bad move. Doctors rarely admit to being negligent. Most malpractice insurance policies have a clause which states they must obtain the doctor’s consent before settling a claim. If the doctor refuses to settle, the insurance company must provide legal representation to defend the malpractice suit.
Birth injury cases are very expensive to try in court. To have any chance of winning, your attorney will have to hire independent experts, usually obstetricians with excellent reputations, to thoroughly review the actions of your doctor and the hospital. Your attorney will also want to review the medical records and take photographs of your child’s injuries.
Your attorney will issue subpoenas to take depositions from the nurses, anesthesiologist, and others who assisted with the birth. He will also issue subpoenas “duces tecum” to the hospital, ordering them to turn over the doctor’s employment records, background information, complaints filed by patients or staff members, and any other documents related to the case.
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 isn’t paid by the hospital, but works for himself and is directly paid by the patient’s insurance company.
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.
While the hospital may not have directly contributed to your child’s birth injury, under the legal doctrine of respondant superior, if the doctor was an employee who was “acting within the scope of his employment” at or about the time of the birth injury, the hospital may be held directly liable for the baby’s injuries and resulting damages.
The legal relationship between a hospital and a doctor working as an independent contractor is more delicate. The hospital may not be able to monitor the independent doctor’s behavior like it would for a full-time employed doctor. As a result, it may be more difficult for your attorney to show the hospital knew, or should have known, the doctor was prone to make mistakes during delivery.
To win a lawsuit against the hospital, your attorney will need 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. This is true whether the doctor was an independent contractor or directly employed by the hospital.
The doctor and hospital where the baby was delivered may both be liable for the child’s damages. These include the child’s present and future medical bills, the parents’ out-of-pocket expenses (medications, home care, etc.), one or both parent’s lost wages while at home caring for their child, and the child’s present and future pain and suffering.
Today, more and more babies are delivered by midwives, referred to as Certified Nurse-midwives. These are health care workers licensed by the state to provide pre-natal care, delivery, and post-natal care. According to the American Midwifery Certification Board (AMCB), midwife deliveries account for 8 percent of all deliveries.
Midwives receive much less training than obstetricians and other doctors, and are just as susceptible to mistakes. When those mistakes result in injury to the child, the parents may have the basis of a malpractice claim against the midwife.
Midwives can also be categorized as either full-time hospital employees or independent contractors. An attorney will normally proceed against a midwife as he would against a doctor or hospital. To succeed in a birth injury lawsuit against a midwife, the attorney would have to prove her actions during the birthing process constituted negligence, which caused unnecessary injury to the child.
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