Of the twenty-eight thousand babies born each year in the USA, about one in every ten thousand will suffer a birth injury. An instance of medical malpractice can transform a normal child into a disabled child with just one mistake.
A joyous occasion can become something quite different in a matter of seconds. You may suspect that negligence on the part of medical staff was to blame. If so, then you may need to take out a birth injury lawsuit. Here’s what to consider.
Establishing a Relationship
You’re going to need to prove that there was a professional relationship between you and the person you’re suing.
The person who supplied their services could be a physician, obstetrician, gynecologist, or surgeon. Proof would normally come in the form of things like medical records or hospital bills.
If there was a ‘doctor to patient’ relationship, the physician would have had a duty of care toward you. That means they would have had an obligation to provide you with a certain level of skill and care.
Minimum Standards Required
Your physician would also need to have acted in a reasonable way under the circumstances of the birth. That incorporates looking after a patient’s medical needs.
They’d also need to make diagnoses based on the information they had at the time and refer you to a specialist if necessary. It follows that they would need to treat their patient accordingly.
There are standards that physicians and hospitals should achieve when it comes to looking after patients in their care. These would include the level of care during labor or delivery to both you and your baby.
If the medical staff breached these standards then you may have grounds for a case. If the defendant was not your doctor or health care provider at the time of the incident, they may not be liable for damages.
Collecting Evidence for a Birth Injury Lawsuit
Your attorney will need to pull together all the evidence. This can establish that the defendant breached, or failed to fulfill, the medical standards of care.
It may appear that a different professional or hospital would have acted in a more reasonable and prudent way in the same situation. If so, that may constitute a breach of duty of those looking after your care.
Common instances of neglect that may cause birth injuries include the following.
- Failing to diagnose infections or medical conditions during pregnancy
- Failing to spot signs of fetal distress during labor or delivery
- Prescribing or administering the wrong medication
- Lack of sufficient knowledge about the birth complications in question
- Failing to order an emergency cesarean section
- Applying the wrong types of birthing techniques
- Using tools such as forceps incorrectly
- Being negligent after the birth of the child by failing to diagnose illnesses
Any of these issues could have played a part in causing a birth injury to the baby as well as trauma to the mother. It will normally be necessary to collect the opinions of medical experts and statements from eyewitnesses.
These could then act as evidence along with previous complaints against the doctor or hospital.
The Link Between Negligence and Injury
You and your lawyer will need to show that the baby’s injuries happened as a direct result of the defendant’s breach of duty. Proving negligence will mean assembling the evidence.
This will include your child’s medical records, diagnoses, and statements from birth injury specialists. Defendants will often claim that the baby would have had the birth injury even without the alleged negligence.
It will be for you and your lawyer to show that the reverse is true. In some states like New York, before a medical malpractice lawsuit is filed, your lawyer will secure a certificate of merit. This involves hiring a medical expert to testify.
This helps to prove the link between the defendant’s negligence and the birth injury. Having a medical expert who believes there is a case to answer helps the courts to manage the huge number of medical malpractice lawsuits.
Establishing the Types of Damages
You will need to prove in your claim that any alleged acts of negligence caused real and specific damages.
These may include physical or mental pain and suffering. There could be a long list as there may have been emotional distress as well as substantial medical bills. You might also have to consider any long-term disability costs and lost quality of life.
There may also have been a loss of consortium. These types of damages are normally linked to the impact injuries have on your relationship with a spouse.
That could include loss of companionship or the inability to maintain a sexual relationship. Some states also consider the separate impact on the relationship between a parent and child when one is injured.
In some cases, these damages are awarded directly to the family member concerned rather than the injured plaintiff.
This is a key element of the claims process if your case goes to court. The size of the damages to be awarded would be established during the medical malpractice trial.
As a parent, you and your child could be left with a very different future to the one you imagined. Medical malpractice may have been the cause of a serious, lifelong injury or medical condition to your child.
Your lawyer will need to show the significant impact the event has had and will continue to have on your family. This is going to help determine how much you will receive in compensation.
Use an Experienced Attorney
You should always hire a lawyer who understands the process of a birth injury lawsuit. This is likely to improve your odds of winning the damages you and your child deserve.
Our firm is known as ‘The Medical Attorney’ because we’ve obtained million dollar plus settlements for many of our clients.
If you think you have a case for medical negligence, contact us now. In the meantime, read our FAQs page where you’ll find answers to many of your questions.