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What is a Birth Injury?
A birth injury is any type of physical damage to a newborn that occurs before, during, or immediately after delivery. These injuries are different from birth defects, which develop during pregnancy. Birth injuries are caused by physical trauma, oxygen deprivation or other issues related to the birthing process. It has been estimated that close to two out of every thousand babies born suffer a birth-related injury. Depending on the severity of the condition, the lifetime cost of caring for a child with cerebral palsy can exceed $1.6 million.
Identifying Signs and Symptoms of a Birth Injury
Warning signs of a birth injury may appear right away:
- Bruises, swelling, or broken bones
- Breathing problems or irregular heartbeat
- Seizure activity or weakness
Warning signs may also develop over several weeks and months:
- Trouble eating or swallowing
- Weak muscles
- Missing developmental milestones
- Delays in cognitive development or speech development
Possible long-term effects of birth injuries include cerebral palsy, Erb’s palsy, and hypoxic-ischemic encephalopathy (HIE). To reduce the potential long-term effects of a birth injury, it is crucial to evaluate the child with a specialist as soon as possible. The sooner the evaluation takes place, the greater the opportunity exists to provide the best possible outcome for the child.
Reasons Why Birth Injuries Occur
Birth injuries are caused by a variety of fetal, maternal, and medical factors. These factors can combine to cause a birth injury. Examples of each of the three types of factors include:
- Fetal factors: breech or unusual position of the fetus, high birth weight (macrosomia), fetal infection, or lack of oxygen
- Maternal factors: gestational diabetes, obesity, maternal infections, or the mother’s pelvic shape
- Medical negligence: failure to assess fetal distress, misuse of forceps or vacuum extractors, delayed C-section, improper administration of medications, or failure to properly manage complications
Research indicates that prolonged labours, uncommon fetal positions, and the use of birthing aids increase the risk of injury. Medical professionals have a responsibility to recognise these risk factors and act accordingly. Failure to do so could constitute medical negligence.
Someone You Love Involved in a Birth Injury Accident?
Examples of Types of Birth Injuries
Birth injuries can be classified in terms of their location and extent. Types of birth injuries include:
- Brain injuries: intracranial haemorrhage or brain damage caused by asphyxia or trauma
- Neurological disorders: cerebral palsy, HIE, seizure activity, and delayed development
- Nerve injuries: brachial plexus injuries (such as Erb’s palsy) resulting from shoulder dystocia
- Skeletal injuries: fractured clavicle, cephalohematoma, or fractured skull
- Other conditions: meconium aspiration, NEC, and neonatal infections
Indicators of Medical Negligence Leading to a Birth Injury
While many serious birth injuries are unavoidable if the medical team provides competent care, there are many indicators of negligence. Indicators of medical negligence include:
- Undiagnosed or unmanaged complications during the birthing process
- Admitting a newborn to the NICU without providing a valid explanation for the admission
- The medical staff failed to communicate clearly regarding what occurred
- A birthing team consisting of an inexperienced doctor or insufficient personnel
- Medication errors or failure to monitor fetal heart rate
It is also possible for birth injuries to be considered “never events.” Never events are outcomes that modern obstetrics should completely prevent. If you observed any of the above red flag indicators, contacting an attorney is an essential first step.
Components of a Birth Injury Lawsuit: Evidence and Legal Requirements
Birth injury lawsuits are among the most complex and difficult cases in the area of medical malpractice. Proving negligence in a birth injury case involves proving four elements: duty of care, breach of that duty, causation, and damages. Documentation that is necessary to prove liability in a birth injury lawsuit includes:
- Records of prenatal and postnatal care
- Printouts of the fetal heart monitor used during labour
- Imaging studies (CT scans, MRI)
- Delivery room notes, nursing logs
- Hospital policies and procedures, staffing records, and audit records
- Photographs and witness testimony
Experts, usually obstetricians and neonatologists with extensive experience, play a significant role in determining whether the standard of care was provided. Birth injury lawyers collaborate with these experts to analyze what happened and whether it was preventable. The statute of limitations varies by state; it is essential to act quickly to protect the relevant evidence.
Damages and Financial Resources Available in a Birth Injury Lawsuit
In addition to past and future medical expenses, a successful birth injury lawsuit can recover other forms of compensation, including:
- Physical, occupational, and speech therapy
- Assistive technology and adaptive equipment
- Special education and residential care costs
- Payments for lost wages and reduced earning capacity of parents
There is no minimum amount of compensation for a birth injury. Compensation amounts depend upon the severity of the injury, the life expectancy of the child, and the probable long-term care needed. There are many sources of financial support available to parents whose child is suffering from a birth injury. These may include Medicaid, Supplemental Security Income (SSI), and many nonprofit organisations. These organisations provide financial aid for the medical, therapeutic, and educational needs of children who have a birth injury, even while the parents’ birth injury lawsuit is pending.
Steps to Take if You Suspect Your Child has Suffered a Birth Injury
- Ensure your child receives immediate medical attention and the appropriate treatment
- Document all symptoms, diagnoses, and communication with healthcare providers
- Request that your healthcare provider send you a copy of all medical records and imaging studies
- Do not sign a waiver or release of liability from the hospital before talking to an attorney
- Contact an experienced birth injury attorney to schedule a complimentary consultation
Frequently Asked Questions
How would I know if my child has a birth defect versus a birth injury?
Birth defects occur before birth and are usually caused by genetics, environment, etc. Birth injuries happen during labor, delivery, or in the first few days after delivery and are caused by physical damage to tissues or oxygen loss. They are also generally preventable.
Can my child be completely cured?
The extent of recovery varies depending on the extent and degree of the injury, how soon the injury was diagnosed, and how well the child receives ongoing care. Many children can recover completely, but some may need lifelong care. Studies have shown that early intervention programs greatly enhance the potential for successful recovery.
How much time do I have to file a lawsuit?
Statutes of limitation (the amount of time you have to file a lawsuit) vary by state and by the age of the child who was injured. Often, the statute of limitations does not start running until the child becomes an adult. However, delaying filing a lawsuit may result in losing the opportunity to preserve evidence. It is recommended that you contact an attorney as soon as possible.
Are there any financial resources available to me and/or my child while my case is pending?
Yes. Medicaid, SSI, early intervention programs, and several other non-profit organizations may be able to assist you with providing medical, therapeutic and educational services for your child while your case is pending.
Shuman Legal — We Are Here To Assist
If your child has been injured at birth, you do not have to go through this process alone. The lawyers at Shuman Legal understand the physical, emotional and financial stressors birth injuries place upon families. Our knowledgeable birth injury attorneys will analyse your medical history, speak with expert witnesses and aggressively pursue the compensation your child is entitled to.
We provide complimentary, confidential case evaluations without cost or obligation. Please visit us online at shumanlegal.com or contact one of our caring staff members to discuss your options.
