Birth Injury Legal Information
 

Overview

Birth injury lawyers help the families of children who were hurt during the birthing process sue for compensation. Experts estimate that five to 27 babies out of every 1,000 births are hurt during birth in the United States. Some of these injuries are minor and clear up quickly, but others are lifelong afflictions that will permanently affect the child’s health, mental capacity and future opportunities. When the injury was caused by a doctor’s unprofessional decisions -- medical malpractice -- these injured children and their families have the right to file a lawsuit.

Birth injuries are a specialized legal field, requiring medical knowledge as well as legal and financial knowledge. Because the victims of birth injuries are babies, birth injury lawyers and their clients, must anticipate every expense the child may have related to the injury, throughout his or her entire life. This can be very complicated and expensive. When hiring a birth injury lawyer, you should make sure you look for lawyers with experience in claims for the type of injury your family is facing.

 

"What exactly is a birth injury?"

Birth injuries, also sometimes called birth traumas, are injuries suffered by a baby during birth. Birth injuries are different from birth defects, which are health problems the baby had before birth, due to genetic abnormalities or exposure to harmful substances. A birth injury is a physical injury a baby sustains as a result of the birth process. For example, bruising of the baby’s scalp is very common during birth, simply because the birthing process can put lots of pressure on a child’s head. This is one of the most common types of birth injury and doesn’t cause long-term harm. But other birth injuries, like cerebral palsy, cause permanent, lifelong disabilities.

Some birth injuries can’t be avoided, even with the best medical care. But in many cases, birth injuries are caused or worsened by mistakes doctors make during delivery. When doctors and other health professionals make mistakes so severe that they fall below the standards for good medical care, they may have committed medical malpractice. If your family has suffered a birth injury because of medical malpractice, you have a right to sue the professionals who committed the malpractice.

 

"What are the most common types of birth injury?"

The most common types of birth injuries overall are minor injuries to the baby’s soft tissue -- bruising, skin irritation and minor bleeding. This type of injury will go away within a few weeks of birth.

There are a few birth injuries that are more serious and may cause lasting damage. The most common include:
Paralysis of a facial nerve, due to pressure on the face from birth or forceps. Depending on how badly the nerve was damaged, it may heal within a few weeks or need surgery to correct.

A broken collarbone due to a birth complication called shoulder dystocia, which is when the child’s shoulder gets stuck behind the mother’s pelvis during birth. Because this can stop oxygen to the baby’s brain and cause brain damage, it’s important to correct the condition quickly. The broken bone may happen because of birth pressures, or doctors may intentionally break it in order to finish the birth. They can sometimes choose to break the mother’s pelvis instead.
Erb’s palsy, a type of brachial palsy. This is another type of nerve damage, but the nerves damaged are those in the brachial plexus, the area where the arm meets the shoulder. Pulling and pushing a child with shoulder dystocia can tear the brachial plexus nerves, which results in partial or total loss of the use of that arm. The damage is sometimes temporary, but can also be permanent. Children with persistent brachial palsy require therapy and medical treatments to regain some use of the injured arm.

Cerebral palsy and other types of brain damage that result from a lack of oxygen to the brain during birth. Cerebral palsy is a cluster of symptoms, most often problems with moving, holding objects, speaking and other motor skills; seizures and muscle spasms; trembling and poor balance; paralysis; and sensory problems. Less commonly, it can include cognitive problems or mental retardation. Children with cerebral palsy will need at least some accommodation throughout their lives; severely affected children might need round-the-clock care.

 

"How do we know if we have a birth injury claim?"

Your doctors should have told you about any problems they found with your baby during delivery. If you think your child has an undiagnosed birth injury, watch for signs like persistent poor nursing, unexplained jerky motions, excessive limpness and failure to cry normally. Birth injuries are especially likely in babies who were premature, very large or whose mothers suffered from gestational diabetes.

To win a birth injury claim, it’s not enough to show that your child has a birth injury. You must also be able to show that your health care team committed medical malpractice -- that is, made bad decisions that fell below the standards of care for the situation -- and that this caused the injury. Frequently, this is a decision not to do something or a missed diagnosis, rather than an action that was wrong for the situation. The doctor may have overlooked a warning sign during the pregnancy, or the delivery team may have ignored a procedure that offered better chances of a healthy birth. In order to show that these decisions fell below the standards of care, you will likely have several medical experts testify at trial.

 

"Who is liable in a birth injury case?"

Any medical professional or organization involved in the birth may be liable. But in practice, who is legally responsible for a birth injury can be a complicated question. The doctors and nurses present at the birth may be liable, depending on who made the decisions and took which actions. If a doctor failed to diagnose or recommend something during pregnancy, he or she may be liable for negative results of that failure. In many cases, the medical facility where the birth took place may also be liable, directly or through the actions of its employees. If you signed a contract, that may also affect liability. Speak with an experienced birth injury lawyer to find out more about who might be liable in your case.

 

"Why should we file a birth injury lawsuit?"

Serious birth injuries can devastate a family. The most serious birth injuries are lifelong disabilities that can affect everything about a child’s life -- playing, school, friends and future opportunities. Instead of spending the next decades taking care of a happy, healthy child, parents may find themselves looking for treatments and information about raising severely impaired children. And of course, raising a disabled child can be very expensive. Many parents aren’t prepared for the costs of full-time nursing, multiple surgeries, ongoing physical therapy or other expensive care.

A birth injury lawsuit helps parents secure the money they need to pay these medical expenses and others, as well as any funds the child might need to be self-supporting during adulthood. It may also be able to compensate your family for the pain, suffering and trauma of learning your healthy child has become a disabled child. Your birth injury lawyer should be able to help you set up a financial structure that allows regular payments over a period of many years, to help deal with ongoing medical and maintenance costs.

 

"Can we sue if our child died at birth or shortly after?"

You are legally allowed to sue over a wrongful death, regardless of any other circumstances. But unfortunately, some states have rules that make it hard to file and win lawsuits over the deaths of babies. Because lawsuits ask for money, the law requires that the people suing show the court what kinds of losses they’ve suffered. In many states, you can claim emotional and personal losses, like the loss of a child’s love and companionship, as well as financial losses like the costs of a funeral.

But in other states, you can only claim financial losses. When the person who died was a young child, you can’t usually show that you’ve suffered a great financial loss. Even if you win a lawsuit in these states, the costs of suing often exceed the money you’ll receive. For that reason, it may not be worth your time or a lawyer’s time to sue for the wrongful death of a child, if you live in one of these states. If you’re not sure, speak to a birth injury lawyer to find out what laws apply in your case.

 

Payment

Birth injury lawyers generally work for a contingency fee, rather than traditional hourly legal fees. In contingency arrangements, the lawyer doesn’t get any money at the beginning of the case. Instead, you and the lawyer will negotiate a percentage of your winnings that will be paid to the lawyer as legal fees, after you win the case. If you don’t win the case, the lawyer doesn’t get paid. However, you may still be asked to pay court costs and other fees.

Birth injury and other personal injury lawyers like contingency fees because they allow everyone to hire a lawyer -- even people who may not have much money, or are strained financially because of an injury. For the same reasons, birth injury lawyers almost always offer a free initial consultation to potential clients. This meeting is your chance to tell the lawyer about your case and get a professional opinion, but also learn about the lawyer and his or her experience, so you can decide whether it’s a good match.