Birth Injury & Trauma – An Overview

 
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Learn more about risks to your baby during the birthing process and how you can determine if negligence played a role in any injuries.

Having a baby is a joyous occasion, but even if everything goes to plan, it is still a traumatic experience for both the baby and mom. While modern medicine dramatically reduces the chance of any injury occurring to a baby, they still occur at an average rate of 6-8 injuries per 1,000 live births in the United States.

Generally speaking, a birth injury can be defined as “…a physical injury that is simply the result of being born” according to Stanford Children’s Health.

These injuries are often minor and only involve some scrapes and bruising that heal on their own within a few days. A newborn’s bones and nerves though are very fragile, so any serious injuries can lead to a variety of developmental disabilities that can last a lifetime.

We invite you to continue reading below about common birth injuries caused by medical negligence and how you, as a parent, can determine if you have a legitimate birth injury claim against the doctor, nursing staff or hospital.

Common birth injuries that cause long-term damage…

Due to the traumatic nature of giving birth, not all birth injuries are due to negligence on the part of your obstetrician or nurses. Sometimes an injury happens because of factors outside of their control, namely the weight of the baby, premature birth, prolonged labor and any abnormal positioning of the baby.

However, many birth injuries come as a result of negligence or “malpractice” on the part of the obstetrician and/or nurses attending to the birth. Below are some of the more common injuries that may require surgery or permanently affect your child’s growth and wellbeing.

Injury Type

Characteristics

Common Causes

Long-Term Effects

Cerebral Palsy (Brain/neurological)

 

 

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Comprises several conditions where injury to the brain impairs the baby’s ability to control their body.

  • Genetic/environmental factors
  • Birth asphyxia (i.e. the infant doesn’t receive enough oxygen during delivery).
  • Infections in the mother
  • Failure to order a C-section soon enough

Potential paralysis, seizures and cognitive impairment requiring constant monitoring. Many also require devices like a walker, braces or a wheel chair to assist with mobility.

Erb’s Palsy (Muscle/physical)

 

 

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Paralysis of the shoulder girdle and upper arm muscles that occurs when the upper section of brachial plexus is injured. Other less common brachial plexus injuries include Klumpke’s Palsy and Shoulder Dystocia.

  • Gestational diabetes
  • Baby’s shoulder is caught on mom’s pelvic bone during delivery.
  • Failure to order a C-section soon enough.
  • Improper use of forceps during delivery.
  • Hospital staff pick baby up by arms rather than supporting the head and neck.

Weakness and inability to use muscles in the affected arm. Patients can also experience shocks and a burning sensation on the affected arm. Severe cases can experience total paralysis.

Persistent Pulmonary Hypertension (PPHN)

The baby’s circulation essentially changes back to what it was in the womb, which is why PPHN is also referred to as “persistent fetal circulation”. Blood flow will bypass the lungs. The baby will experience difficulty breathing, rapid heartbeats and heart murmurs.

  • Occurs more frequently in babies born past their due date.
  • Birth asphyxia – a condition caused by too little oxygen.
  • Mother was prescribed certain medications during the pregnancy that may have led to an increase in blood pressure and stress on the baby.   
  • Any infections in the mom were not treated properly or at all.

PPHN is treatable through supplemental oxygen, breathing machines or an endotracheal tube into the baby’s windpipe. The goal of treatment is to get the baby to breathe normally on their own. The baby can experience long-term health and development issues if the PPHN is severe enough.

Facial Paralysis

At birth, there will be no movement in the area where facial nerves are damaged. When the baby cries, the affected eye will not be able to close.

  • Pressure from the delivery can damage facial nerves. This risk is higher for longer deliveries.
  • Nerves can also be damaged by forceps during delivery.

Paralysis will improve within a few weeks if the nerve was only bruised. Surgery may be required if the nerve was torn.

It’s important to note that not all of the effects from a birth injury will be apparent in the delivery room. Some injuries in fact do not appear for weeks or even months following birth, which is why you should have a firm understanding of developmental milestones and discuss any observations with your child’s pediatrician.

When a birth injury is considered malpractice…

Not all birth injuries, including ones listed above, can be considered negligence or medical malpractice. Again, the birth process can be traumatic. Sometimes injuries occur because of unforeseen problems with the mom, baby or both.

However, many injuries are preventable and occur due to negligence on the part of the doctor, nurses or midwife. Reasons can range from a lack of training or fatigue to simple negligence or miscommunication.

In order to have a valid birth injury claim, you must prove the doctor (or other medical provider) owed your baby a duty of care, failed to meet generally accepted medical standards and that any error(s) caused the birth injury.

The duty of care (i.e. doctor/patient relationship) is fairly straightforward if the doctor delivered your baby. However, if you received informal advice from a physician who never treated you before, you cannot claim that doctor owed your baby a duty of care, even if his or her advice was wrong.

Determining whether the doctor (or other medical provider) acted within generally accepted standards however will require careful review of the baby’s medical records and the medical records relating to your pregnancy, labor and delivery, along with testimony from a medical expert. If it’s determined the doctor, nurses and other medical staff attending to the birth failed to meet generally accepted standards of care, you may be able to press forward with a birth injury lawsuit.

Again, just because an injury occurs doesn’t mean your doctor is guilty of negligence or malpractice. If his or her actions fell within the generally accepted standards of care, then chances of winning a birth injury lawsuit will be significantly reduced.

Pursuing a claim for a birth injury…

If it’s determined by your attorney and medical experts that the generally accepted standards of care were not met, the parent or legal guardian may be able to pursue a claim for compensation. Depending on the circumstances, you may be able to file a claim against:

  • The physician
  • Nurses & midwives
  • Anesthesiologists
  • The hospital
  • Drug manufacturers (product liability)

More often than not, cases like this are very complicated and may take months or even years to reach a settlement, which is why you must keep careful records of ALL expenses and tasks related to caring for your child.

Medical expenses are just one piece of compensation you may recover in a birth injury lawsuit. Other examples include:

  • Estimated future medical expenses
  • Incidentals related to healthcare (physical therapy, counseling, home and vehicle modifications)
  • Pain and suffering
  • Lost wages
  • Loss of enjoyment with the child
  • Punitive damages

The defense may offer a settlement that seems like a lot, but in the long run, will be inadequate for taking care of your child’s long-term needs. This is where the advice of an experienced birth injury lawyer can be extremely valuable.

Parents or legal guardians must also factor the statute of limitations into any decisions about pursuing a claim. The statute of limitations simply means the amount of time you have to file a claim for personal injury or medical malpractice.

This time limit varies from state to state, but most are either two or three years from the date of injury or when it was discovered.  However, many statutes of limitation allow claims involving babies and children until the child reaches 18 or 21.  

The “discovery rule” essentially starts the clock at when you should have known a birth injury occurred. As we mentioned earlier, not all injuries are apparent at birth. It can sometimes be months before you begin noticing issues that stem from the birth.

Regardless of the statute of limitations applicable to your birth injury claim, it is important to consult with an experience birth injury attorney as soon as possible while memories are still fresh and you can more easily access medical records.

Since cases like this are rather complex and always specific to the individual, it’s impossible to provide a firm number on how long you can expect your claim to take. Some settle within a few months while others can take several years to resolve.

Where to find support…

Taking care of an injured child is difficult. Add a legal proceeding into the mix and it can be downright overwhelming. You have to keep very detailed records of everything, including all medical records, bills, correspondence and even a daily journal of your activities.

Besides your family and close friends, your attorney will provide a lot of support in taking care of the leg work of building your case.

Support groups come in a variety of forms. There are numerous online forums and websites dedicated to pregnancy in general. The hospital will offer some sort of support group, along with various community and religious organizations. 

The big thing to remember is to talk to others about the difficulties you’re facing. Simply keeping them to yourself will only add stress for you and your baby.

If you believe you or your child was injured during the birthing process, you should first seek medical attention.

Once things are stable, you should then speak with an experienced birth injury attorney near you to discuss the facts of your case and determine if you have grounds for a claim.

We invite you to search our directory to find an attorney specializing in birth injuries in your state so you can begin the process of pursuing compensation.

Sources:

http://www.merckmanuals.com/home/children-s-health-issues/problems-in-newborns/birth-injury

http://emedicine.medscape.com/article/980112-overview#a1

http://www.stanfordchildrens.org/en/topic/default?id=birth-injury-90-P02340

http://www.crh.org/services/lung-institute/pulmonary-hypertension.aspx

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