Many of us assume that as science and medicine evolve, birth injuries are becoming a thing of the past. However, an average of 76 children suffer birth injuries every day in the United States, and 50-80% of mothers experience tearing and trauma during labor and delivery. Unlike birth defects, which develop before birth, birth injuries are often the result of improper medical care.
A single negligent act can have devastating consequences and endanger both the child and mother’s lives. Keep reading to learn more about common birth injuries, filing a medical malpractice claim, and who is legally responsible for a birth injury.
What Are Birth Injuries?
Birth is a natural, but complicated process. A birth injury occurs when either the mother or child experiences complications or harm during labor and delivery. While some birth injuries are unavoidable, many are preventable or their impact can be minimized if identified early on.
Common birth injuries to infants include:
Cerebral Palsy (CP) is a brain condition that affects muscle tone, movement, and motor skills and can impair a child’s ability to speak, eat, or breath. CP can be caused by infections and other medical issues in the mother during the pregnancy, or by improper monitoring during delivery and inadequate birthing care.
Hypoxic-Ischemic Encephalopathy (HIE) is an oxygen deprivation issue that results in brain damage and developmental problems. HIE is also a possible cause of cerebral palsy and epilepsy. HIE can occur if the baby remains in the birth canal too long or if a doctor fails to monitor the baby’s breathing during and after birth adequately.
When a baby’s neck or shoulders are stretched during the delivery process, damage can occur to a cluster of nerves near the neck. This nerve damage is called brachial plexus birth palsy, or Erb’s Palsy. Nerve damage can cause weakness, numbness, and loss of motion in the arms and may require therapy or surgery to treat. Overly forceful use of forceps during delivery is a possible cause of Erb’s Palsy.
Brain bleeding is another potential side effect of inadequate monitoring and forceful delivery. Subarachnoid hemorrhages and intracranial hemorrhages can cause brain damage and even be fatal if not promptly diagnosed and treated.
Mothers can also suffer traumatic injuries during labor and delivery, such as:
Heavy bleeding is relatively common after labor and delivery, and can be life-threatening. Unfortunately, women’s concerns about excessive bleeding are sometimes ignored or minimized.
A ruptured uterus occurs when the uterine wall tears during labor. It can cause heavy bleeding and can be fatal if not properly diagnosed and treated. Uterine ruptures are most common in women who have previously undergone a c-section.
Unidentified Vaginal Tears
While some vaginal tearing is common during childbirth, an untreated tear can be life-changing, causing incontinence, pain, and even a rectovaginal fistula, or a hole between your vaginal wall and anus.
Post-Traumatic Stress Disorder
Birth injuries are traumatic in many ways. While they harm you or your child’s body, they can also inflict emotional damage. Many parents report symptoms of post-traumatic stress disorder (PTSD) after suffering a birth injury. The trauma can also trigger depression, anxiety, and other mental health conditions.
Birth injuries can have profound results. Many mothers and children require intensive medical care after a birth injury. A mother may be unable to care and nurse for her child, which can be deeply upsetting. And serious or fatal birth injuries can result in a lifetime of loss, therapy, and care.
Do I Have A Medical Malpractice Claim and How Do I File?
If you or your child suffered a birth injury caused by another’s negligent or reckless act, you may have a medical malpractice claim. Depending on the type of birth injury and how it occurred, you could file claims against the doctor, hospital, and pharmaceutical companies that caused or contributed to the harmful situation.
Handling a medical malpractice claim for a birth injury in Virginia is not a simple process. You will need to:
- Review your medical records and identify how the physician or medical provider violated the appropriate standard of care, or how a reasonably careful medical professional would have responded.
- Hire medical experts who can certify that the doctor, hospital, or pharmaceutical company did not uphold the medical standard of care.
- Participate in the pre-trial discovery process, which involves exchanging information about the claim and taking sworn testimony from experts and the people involved in your care.
- Responding to the insurance company’s legal motions and attending court hearings.
- Negotiating with the insurance company and evaluating settlement offers.
- Presenting your claim to a judge and jury.
The filing deadlines for birth injury claims vary. If you discover your child’s birth injury before their eighth birthday, you must file a lawsuit before their tenth birthday. If the injury is discovered when the child is eight years older or more, you have two years to file your malpractice claim.
Typically, victims and their loved ones rely on an experienced birth injury attorney for these tasks.
RELATED ARTICLE: How Do I Sue a Doctor for Medical Malpractice in Virginia?
Who Is Financially Responsible for a Birth Injury?
There are two main types of medical malpractice lawsuits regarding birth injuries; those that deal with the care that a mother and child received, and those that pertain to a failure to warn mothers of risks from taking prescribed pharmaceuticals.
Caregiver malpractice refers to prenatal care and care provided during labor and delivery. Victims can bring these suits against any medical personnel, facility, pharmaceutical company, or medical device manufacturer who owed a duty of care to the mother or child. When a caregiver does not provide a reasonable standard of care, and that failure caused a birth injury, the caregiver may be held liable. This may include claims involving failure to diagnose or provide adequate care.
Pharmaceutical “Failure to Warn”
Pharmaceutical companies, pharmacists, and physicians all have a legal duty to warn mothers about the potential risks involved in taking a drug while pregnant. If the mother was prescribed a drug while pregnant that caused a birth injury to the baby, her prescriber and other parties may be liable for the injury if they did not warn her of the side effects.
Certain Children Injured at Birth Are Eligible to Participate in the Virginia Birth-Related Neurological Injury Compensation Program
As an alternative to a medical malpractice lawsuit, some birth injury victims can file a claim with the Virginia Birth-Related Neurological Injury Compensation Program. The program is a no-fault administrative remedy. It provides an eligible child with lifetime benefits, including coverage of their medical expenses, the cost of medically necessary travel, residential care, and lost income.
When a child is found eligible for benefits under this program, it is the exclusive remedy available. In other words, neither the child nor the mother may file a traditional lawsuit claiming damages.
To be eligible for the Birth Injury Program, you must prove the following elements:
- A participating hospital or doctor delivered your child
- Your child suffered a birth-related neurological injury, caused by oxygen deprivation or a mechanical injury
- Your child has permanent motor, cognitive, or developmental disabilities
- Your child requires assistance with all their daily living needs
While only a modest number of children are eligible for the program each year, the Virginia Birth-Related Neurological Injury Compensation Program offers vital assistance to families of severely injured children.
Call Phelan Petty If You Suspect Medical Malpractice Caused a Birth Injury to You or Your Child
Medical malpractice lawsuits are highly complex and require careful handling, investigative expertise, and experience working with medical experts. The medical malpractice team here at Phelan Petty includes award-winning attorneys with decades of experience fighting insurance companies and hospital lawyers to help clients get the compensation they deserve for birth injuries and other medical malpractice claims.
If you or your child has suffered a birth injury due to a failure to uphold the medical standard of care expected of all healthcare providers and companies, contact us today. Call us at 804-980-7100 or complete our online form to speak with a medical malpractice lawyer about your case.
Butler, K. (2017, January/February). The scary truth about childbirth. Mother Jones. Retrieved from https://www.motherjones.com/politics/2017/01/childbirth-injuries-prolapse-cesarean-section-natural-childbirth/
Statistics about birth injury (n.d.). Right Diagnosis. Retrieved from https://www.rightdiagnosis.com/b/birth_injury/stats.htm
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.
Since 2004, Jonathan Petty has applied the deep knowledge and experience he gained working on the defense side of litigation to represent ordinary people injured by car accidents and truck accidents, medical malpractice, and defective products in Virginia. He has successfully tried medical malpractice and personal injury cases to verdict in courts throughout Virginia, and he has handled cases on behalf of both plaintiffs and defendants in state and federal courts across the country.