Why You Need an Experienced Medical Malpractice Lawyer to Represent You in Your Birth Injury Claim
By David Carnes, Staff Writer
The birth of a child is generally considered to be a joyous occasion for the baby’s family. Unfortunately, however, this occasion can be ruined if the baby is injured before, during or immediately after birth. These types of injuries are not uncommon – the U.S. Centers for Disease Control & Prevention estimates that 0.6 percent of all births involve a birth injury. Although legal remedies are available when the injury was avoidable, winning a birth injury lawsuit can be extremely difficult without the assistance of an experienced medical malpractice lawyer.
In some cases a birth injury occurred prior to birth, although the injury may not have become apparent until after the baby is born. The injury may have occurred due to:
- Prescription or non-prescription medication – which can result in a “birth defect” as opposed to a “birth injury”
- Injury to the mother while she was pregnant
- Smoking or substance abuse by the mother while pregnant
Injuries During and After Birth
There are a myriad of ways that a baby can be injured by medical malpractice during and after birth, including:
- Improper use of forceps or vacuum
- Failure to deliver by Cesarean section when circumstances call for it
- Failure to recognize when the fetus is in distress
- The umbilical cord is wrapped around the baby’s neck during delivery
- Misuse of drugs during labor and delivery
- Failure to properly follow up by monitoring the baby’s health after birth.
Extensive investigation is often required to identify the cause of a birth injury, and further investigation is required to tie the injury to medical malpractice and gather enough admissible evidence to prove this claim. Courts apply complex and arcane rules of law to the admission of evidence in a trial.
Every state applies some sort of comparative fault rule in personal injury cases. If the baby’s injury was due partly to medical malpractice and partly to an injury to the mother while pregnant, for example, the defendant might claim that the damages should be reduced to take into account the fault by the person who caused the prior injury. Different states apply different comparative fault rules, and applying these rules can be quite complex when you have, for example, a plaintiff (the baby) a defendant (a hospital, for example) and a third party who was partially at fault.
If you file a medical malpractice lawsuit over a birth injury, it is entirely possible that the case will be settled out of court with a medical malpractice insurer. Insurance company executives are tough and savvy negotiation professionals, and they are unlikely to agree to pay you any amount that they believe you couldn’t force out of them in court. If circumstances indicate even a small possibility that they might share fault with someone else, they will force you to litigate the case.
If your baby suffered a serious birth injury or died during or shortly following delivery, no one can completely alleviate your pain. It makes sense, though, to seek compensation for an avoidable injury. Because birth injury cases can be difficult to prove, your selection of a medical malpractice lawyer could turn out to be the most important decision you make in your entire case.