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What You Should Know About Birth Injuries (and Lawsuits)

Posted on August 23, 2016 by Kelly Wolford

Giving birth is a natural process. The primary role of doctors, midwives and nurses during a woman’s pregnancy, labor and delivery is to identify when problems arise during this process so as to prevent serious or fatal birth injuries.

Unfortunately, medical professionals in New York and other areas of the country may fail to carry out this role, or commit “obstetrical malpractice.” This type of medical negligence may happen more than any of us want to believe.

As The Atlantic reports, a survey by The American College of Obstetricians and Gynecologists revealed that 90 percent of its board-certified members have faced at least one medical malpractice lawsuit. Over the course of their careers, ob-gyns in the U.S. are sued 2.7 times, the survey showed.

In fact, for a few ob-gyns, getting sued for obstetrical malpractice is almost “business as usual.” According to the survey results, one-third of the ob-gyns who have been sued have been hauled into court four times or more.

Why Do Birth Injuries Occur?

Obstetrical care providers – doctors, midwives and nurses – should be able to tell when a baby is at risk for an injury. Many tests, procedures and techniques can be used to detect problems.

Birth injuries can occur when medical professionals fail to properly use the tools available to them – or fail to use them at all – and miss or ignore warning signs.

Some of the most common reasons for a lawsuit against an ob-gyn are the failure to:

  • Detect the baby’s abnormal position, placenta or umbilical cord problems (typically observed through ultrasound tests)
  • Identify the mother’s development of high blood pressure, gestational diabetes or other issues that could impact the baby’s health
  • Perform a timely cesarean section (C-section)
  • Use a vacuum or forceps device in a proper manner
  • Administer safe levels of medication (such as pitocin)
  • Carefully monitor the baby’s condition and detect any oxygen deprivation, bleeding and other complications
  • Detect and promptly address infections, including those that arise after birth.

The risk of a birth injury may increase when a midwife or nurse oversees labor and/or delivery. If a problem arises, and a doctor must be called to diagnose and treat it, the delay alone may lead to permanent harm.

When obstetrical malpractice occurs, it can lead to injuries such as:

  • Stillbirth or neonatal death (when a baby dies within 28 days of being born)
  • Neonatal encephalopathy (a condition resulting in disturbed neurological function in the earliest days of life)
  • Cerebral palsy (studies indicate that as many as 10 percent of cerebral palsy cases can be attributed to avoidable birth injury)
  • Shoulder dystocia (when the baby’s shoulder gets stuck behind the mother’s pubic bone during delivery), causing brachial plexus injury that can result in a condition such as Erb’s palsy or Klumpke’s palsy.

How Can You Pursue a Birth Injury Lawsuit?

Even a small mistake in delivering a baby can lead to a lifetime of impairment. In some cases, the injury may not be recognized until the baby is old enough to show signs such as failing to meet “normal milestones” in his or her physical and/or intellectual development.

If you have a new child and suspect a birth injury, you should meet with an experienced New York medical malpractice lawyer who can review the facts of your case and consult with medical experts.

The central issues in a birth injury medical negligence claim tend to be:

  • Whether the obstetrical care providers acted in accordance with accepted medical practices
  • Whether you and/or your child suffered harm due to this violation of the standard of care
  • The extent of physical, emotional and financial harm that you and/or your child have suffered as the result of the obstetrical care provider’s negligence.

More than one medical professional may be liable in the claim. A doctor, midwife, nurse or the hospital itself may bear legal responsibility for birth injuries.

A case may actually involve two separate lawsuits – one brought on behalf of the child and one brought on behalf of the parents. For instance, the parents may seek a recovery of funds they have spent to treat a child’s birth injury. However, the costs of future medical expenses would be brought in the child’s name.

For stillbirths or miscarriages, the law is a little more complicated. A child born alive who later dies can be the subject of a wrongful death claim, with damages payable to the parents. However, no lawsuit may be brought on behalf of a fetus that dies in utero due to obstetrical care provider malpractice.

Perhaps the most complex cases of obstetrical malpractice involve wrongful conception or wrongful birth. If a birth control procedure failed due to medical malpractice, or if a health care provider failed to diagnose a pregnancy within the time limits during which the termination of a pregnancy would have been permitted, parents may be able to seek compensation – but only if the child was born with abnormalities.

A child in New York has no right to sue for having been born. The parents cannot claim compensation for the normal costs associated with raising a healthy child.

However, the costs over and above what it would take to raise a healthy child may be recoverable if medical malpractice led to the conception/birth, and the child was born with abnormalities.

How Long Do You Have to File a Birth Injury Lawsuit?

Every legal remedy, including recovery for obstetrical malpractice, has a specific time period in which the lawsuit must be started, or the right to bring a claim may be forever lost. These time periods are called the statutes of limitations.

In New York, the statute of limitations for injury to the mother is 2.5 years from the date the medical malpractice occurred. This time period may be extended if the mother continued to be treated by the negligent obstetrical care provider after the malpractice.

If the baby or the mother died as a result of the malpractice, their close relatives would have two years from the date of death to bring a wrongful death claim.

The person appointed to represent the estate could bring suit for the pain and suffering of the deceased mother or baby only if the suit was started within the 2.5-year period from the date of the malpractice.

For claims made for the injuries suffered by the baby, a claim must be filed within 10 years from the date of the malpractice. No extensions are allowed.

When the obstetrical care provider is a state, county or other governmental entity, written notice of the potential legal claim must be given within 90 days of the alleged medical error.

Get Help from a Medical Malpractice Attorney Serving Albany and Syracuse

Birth injury malpractice claims can be highly complex. Intricate medical procedures, matters of professional judgment, the projected lifetime effect of injuries inflicted on a newborn – all of these and more will likely factor into the amount of compensation that you ultimately pursue.

To present a strong, persuasive case for compensation, you need a proven advocate at your side. If you or your child suffered injury in the birthing process in Albany, Syracuse or elsewhere in New York, and you suspect obstetrical negligence, please contact an experienced birth injury malpractice attorney at Powers & Santola, LLP, as soon as possible. Our consultations are always free.