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When Is a Birth Injury Considered Medical Malpractice?

Giving birth is a joyous, empowering experience, but it can quickly become a nightmare for some parents. While complications during childbirth are relatively rare, thousands of newborn babies are still diagnosed with birth injuries every year in the United States – about 6 to 8 out of every 1,000 births. 

Sometimes, birth injuries are unavoidable and the result of a medical emergency. Like any other medical procedure, childbirth is unpredictable and carries the risk of unexpected problems. But in other cases, a devastating birth injury is entirely preventable and occurs because a doctor has acted negligently. 

Birth injuries range in severity and can be as mild as bruising that disappears within a few days. Unfortunately, not every injury fades away. Birth complications also cause conditions like cerebral palsy, which affects movement and can make it impossible to walk without mobility aids. Another severe birth injury is brachial plexus birth palsy, which happens during complex deliveries when a baby’s neck is stretched to the side. This can cause nerve damage in the brachial plexus, leaving the affected child with a paralyzed or weakened arm. 

Little premature born child through hospital cribRegardless of the specific injury, a parent will feel overwhelmed seeing their baby experiencing health issues. They might blame themselves for not asking medical professionals more questions or wonder whether they could’ve predicted the accident. The emotional toll combined with the unexpected burden of medical bills can be catastrophic. Because we are conditioned to trust medical professionals and believe that they’re always acting in our best interests, hiring a birth injury malpractice lawyer may not even come to mind. But even well-meaning labor and delivery physicians who aren’t malicious can act negligently, forever changing the lives of the patients they treat. 

How Birth Injuries Occur

Labor and delivery can be unforeseeable, with things taking a quick turn toward danger without much warning. Some birth injuries are unavoidable, but some common factors can increase the risk of medical problems. 

Oxygen deprivation is one of the most frequent causes of birth injury. After one minute without oxygen, brain cells begin to die, and the chance of serious problems begins to increase. It can be caused by placental abruption when the placenta detaches too early and cuts off nutrients and oxygen. Umbilical cord problems like the cord becoming wrapped around the neck can also starve babies of oxygen. Oxygen-deprived newborns are at high risk for epilepsy, behavioral problems, and severe brain damage. 

Forceps delivery and vacuum extraction are two techniques used during vaginal delivery if labor isn’t progressing quickly enough or a doctor has concerns about a baby’s health. Forceps are metal tools that look like salad tongs and guide an infant’s head out of the birth canal. Vacuum extraction is a similar process but uses a vacuum instead of forceps tools. While both of these tools can be lifesaving, they also carry potential risks. Shoulder dystocia, skull fractures, and scalp wounds are possible outcomes for babies born through assisted vaginal delivery.   

Pregnant woman being assisted by medical staff in hospital.Is A Birth Injury Medical Malpractice?

All birth injuries cause some level of harm, but not every injury is considered medical malpractice. A birth injury lawyer can help you determine whether your situation is grounds for a birth injury lawsuit. To meet the standard for medical malpractice, a case must meet the following requirements.

Standard of care: Simply put, this is the expectation that a person exercises reasonable care when performing any act that could cause harm. In a doctor-patient relationship, the duty of care is well established. A physician must give a patient the same skill, care, and diligence that a similarly competent medical professional would offer in that situation. 

Violation of Standard of Care:  Once it’s established that a medical professional has a duty of care, you must prove that they breached that duty and didn’t provide the treatment that a trained medical professional would in the same circumstance. A third-party medical expert in the same industry can help prove negligence by sharing what would’ve constituted proper care in your situation. 

Causation: There’s a risk of injury with any medical procedure, and medical professionals cannot avoid some complications. In a birth malpractice suit, a birth injury attorney must show that the defendant’s actions “more likely than not” was a cause of an injury.

Damages: Lastly, a medical malpractice patient must show that they’ve experienced harm due to the doctor’s actions. This might include medical records and testimony from experts about the long-term effects of the injuries suffered. If you think a doctor has acted negligently but they don’t cause any harm or injury, you won’t be able to sue.

If a birth injury is caused by medical malpractice, the injured party has a timeline for when they can seek legal action. Every state has a statute of limitations for medical malpractice, which is when a plaintiff has to start a case. In Washington, D.C., lawsuits must be filed within three years of the medical malpractice occurring. In West Virginia, plaintiffs have two years to file. The rules differ for children, and there’s more time to seek recourse. 

A birth injury lawyer representing a West Virginia minor under ten years old has two years post-injury to file or before the child turns 12 years old, whichever period is longer. In Washington, D.C., the statute of limitations doesn’t expire until the child turns 21 as long as the malpractice occurred before their 18th birthday. In birth injury incidents, the injured party is usually very young at the time of injury, meaning that there’s additional time to file a lawsuit. However, it’s best to contact a birth injury law firm once you suspect medical malpractice. The legal process can take a long time, and you should have the compensation you’re entitled to receive.

Why a Birth Injury Lawsuit May Be Necessary

Taking care of a child is expensive, and parents of children with disabilities face even more financial challenges. Researchers estimate that it costs $1.4 to $2.4 million to raise a child with autism or an intellectual disability, and that number is even higher for children with severe disabilities. 

Medical bills, doctor’s appointments, medications, and surgeries all add up, especially because insurance companies may not cover some of the necessary procedures. Parents with sick children are often forced away from their jobs to become part- or full-time caretakers, and they may be able to recover their lost wages in a birth malpractice lawsuit. 

In Washington, D.C., one in four children live in poverty. Many caregivers were struggling before the birth injury. Losing their jobs because they need to tend to their child can be a massive financial blow, and reimbursement for lost wages can be a lifeline. Birth injury lawsuits can also help pay for any specialized care a child may need down the road, like special education classes and physical therapy.

Non-economic losses, while harder to quantify, are also eligible for compensatory damages. The emotional distress, pain and suffering, and mental health problems that can follow a traumatic birth experience are often just as damaging as the quantifiable financial losses. A birth injury malpractice lawyer can help you determine which non-economic losses you’ve experienced and how you’ll explain them in a court filing.

In rare cases, you may ask for punitive damages. Instead of simply being negligent and breaching a duty of care, the medical provider must have acted recklessly or maliciously and knowingly deviated from the standard of care. Punitive damages are meant to punish the medical professional and deter other people in the same industry from behaving similarly. Sometimes, a case involving punitive damages will involve criminal behavior like purposefully harming a patient.

Finding A Birth Injury Lawyer

Once you decide to consult with a birth injury attorney, you’ll probably find yourself Googling “birth injury lawyer near me” or “birth injury attorney near me.” You’ll get hundreds of results, and it might be hard to find the best birth injury lawyer for your case. Not every birth injury law firm has the knowledge to advocate for you successfully, and it’s imperative to find an attorney who will provide comprehensive legal counsel. 

Male lawyer working in officeWhen you reach out to a birth injury lawyer, they’ll ask you questions about your pregnancy, labor, and delivery. You’ll share information about the birth injury, how it happened, and what effects it has had on your child and your life. If they think the injury involved a preventable medical mistake that could be negligent, they’ll begin to investigate and request medical records. Here are a few questions you can ask a birth malpractice attorney to make sure they’re the right fit.

  1. How much experience do you have with birth injury cases? You want to work with a birth injury law firm that has extensive experience with birth injury cases. You can ask how many years they’ve been handling birth injury cases and how many they’ve worked.
  2. Have you taken any birth injury claims to trial? A lawyer will try to settle your case out of court, but if that fails, it may need to be decided in court by a jury. If an attorney doesn’t have experience with malpractice trial cases, be cautious about working with them. 
  3. What does the attorney know about birth injuries? You’ll consult medical experts for your case, but an attorney who regularly works with birth injury plaintiffs will also have basic knowledge of common birth injuries and their potential effects.
  4. How many settlements have you won for your clients? Even if an attorney has birth injury experience, you’ll want to determine how effective they’ve been in obtaining favorable verdicts. Birth malpractice cases are notoriously difficult to win, and it’s essential to pick an attorney who has a history of successful litigation. 
  5. What will this cost me? Most birth injury attorneys work on a contingency fee basis, which means they only get paid if they secure a verdict or settlement in their client’s favor. They’ll take a percentage of the sum that a client receives. Ask the attorney how they handle payment.

At Paulson & Nace, we have a documented history of successful birth injury lawsuits. Washington, D.C. and West Virginia families in need of a birth injury lawyer should look no further. Our attorneys advocate for people forever impacted by a physician’s negligence during childbirth. Schedule a free case evaluation in our Washington, D.C. or Charleston, WV office by calling 202-897-4193 or by filling our online contact form.

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About Our Firm

The firm was founded in 1979 by senior partner Barry J. Nace and the late Richard S. Paulson to promote the rights of seriously injured persons and their families, particularly victims of medical malpractice and defective products. Since then, we have expanded the scope of our practice to include other types of serious personal injury cases, including premises liability and motor vehicle and railroad accidents.