What Is a Birth Injury and How Can a Lawyer Help You?

July 29, 2019 | Attorney, Matthew Dolman
What Is a Birth Injury and How Can a Lawyer Help You?

Birth Injury Personal Injury Lawsuits

For expectant parents, childbirth is usually the most anticipated time of the whole process, the culmination of nine months of waiting. Who will the baby look like? What will his or her personality be like? No one really thinks about what life will be like if their child is injured during birth. Unfortunately, accidents can happen and birth injuries can lead to a lifetime of medical needs.

How Common Are Birth Injuries?

While the prevalence of birth injuries has decreased in recent years, these injuries still occur in about seven out of every 1,000 births in the United States, according to statistics compiled by Right Diagnosis. This equates to:
  • Three birth injuries every hour
  • 76 birth injuries every day
  • 538 birth injuries every week
  • 2,333 birth injuries every month
  • 28,000 birth injuries every year
A 2000 National Healthcare Quality Report noted that birth injuries are slightly more common for male newborns than females, and also are more common in private, for-profit hospitals with 300 to 499 beds than in any other setting. Birth injuries don't just affect the infant. New mothers can also sustain injuries during the birthing process. According to an in-depth investigation by USA Today of 120 hospitals with higher-than-normal childbirth complication rates, hospitals often blame mothers for birth injuries, citing pre-existing conditions—and even poverty—as the reason for complications. One of the hospitals investigated offered a written statement claiming that “lifestyle diseases, the high cost of healthcare, delaying or non-compliance with medical treatment, limited care coordination, poor health, high rates of poverty and high rates of morbidity are all realities of our State and community.” However, industry experts suggest that this is in fact not the case. Analysis of the data from the hospitals who have some of the poorest childbirth complication rates in the nation reveals that the women and children who suffer these complications come from all income levels and all walks of life. Unfortunately, hospitals are not required to make their childbirth complication rates public, meaning that many women don't realize that the facility providing their prenatal, labor, and delivery care has a higher rate of complications than other, equally-accessible facilities. Currently, the U.S. is the most dangerous place in the developed world to give birth, according to USA Today, with 50,000 women severely injured during childbirth and about 700 new mothers dying each year. Some of the measures that industry experts say will help to reduce this rate include monitoring the mother's blood loss during and after birth to ensure that she is not hemorrhaging, careful monitoring of the new mother's blood pressure to protect her from having a stroke, and ensuring that women get the proper medication in time to prevent complications.

How Do Birth Injuries Occur?

Birth injuries can occur in a variety of ways, including:
  • Dystocia. Dystocia is a medical term for difficult labor, in which the child cannot easily pass through the birth canal. This may result in injuries to the infant's clavicle or brachial plexus nerves and can also result in a pinched umbilical cord that may cause brain damage to the newborn.
  • Genetic mutations. Genetic mutations can cause fetal malformations that make the infant susceptible to becoming injured at birth.
  • Intrauterine hypoxia. This condition is defined as oxygen deprivation in the womb, often caused by damage to the umbilical cord or placenta, and it can lead to a number of brain injuries, including cerebral palsy.
  • Undiagnosed or misdiagnosed maternal conditions. Certain conditions, such as gestational diabetes, can lead to prematurity and stillbirth. Additionally, research suggests that undiagnosed maternal infections can result in neurodevelopmental disorders in children.
  • Pregnancy complications. Complications such as placenta previa, placental abruption, anemia, and preeclampsia limit oxygen and nutrients to the fetus and can result in birth defects or even fatality.
  • Prematurity. Premature infants have an increased risk of mortality as well as an increased risk of birth injuries.
  • Medical error. Medical errors during and around birth may result in a number of hazards for a newborn, including broken bones, medication errors, and more. Some common medical errors include failing to plan for a high-risk delivery, failing to order a C-section when medically necessary, failing to adequately respond to fetal distress, failing to stop preterm labor, or incorrect use of delivery room equipment, such as forceps and vacuum extractors.

Types of Birth Injuries

As explained by the Merck Manual, head and brain injuries are the most common of all birth injuries. Some head injuries that occur during or around birth include:
  • Swelling, bruising, and scratches to the scalp. These injuries are generally not serious and are often caused by the use of certain delivery room equipment, such as forceps or vacuum extractors.
  • Bleeding outside of the skull bones.
  • Subgaleal hemorrhage. This is bleeding within the skull that may spread and result in significant blood loss, shock, and even the need for a blood transfusion. This type of injury is often caused by a blood clotting problem or the use of delivery room equipment.
  • Skull fractures. These fractures may occur before or during birth; they generally heal on their own unless they are indented.
  • Bleeding in the brain. This type of injury most often occurs in infants who are premature or who suffer from bleeding disorders. Bleeding can occur in a number of different locations in the brain and may produce specific symptoms, such as lethargy, feeding problems, apnea, and seizures.
In addition to head and brain injuries, several other common types of birth injuries include:
  • Nerve injuries. Nerve injuries generally cause weakness of the muscles controlled by the nerve. Examples of nerve injuries include those involving the facial nerve—which result in lopsided facial expressions, brachial plexus nerve—which causes weakness in the arm and hand, phrenic nerve—which causes difficulty breathing, and spinal cord—which may cause paralysis.
  • Bone injuries. A fractured clavicle (collarbone) is the most common bone-related birth injury, occurring in 1-2 percent of all births. Other bone injuries to newborns may include fractures to the humerus (upper arm bone) or femur (upper leg bone). Certain genetic conditions may make bones break more easily, resulting in multiple fractures during the birth process.
  • Perinatal asphyxia. This condition is a result of a lack of oxygen in the baby's blood or a decreased flow of blood to the baby's tissues. Asphyxia causes newborns to appear pale and lifeless and often requires resuscitation. This condition can cause damage to many of the baby's organs. While most organs will recover in time, damage to the brain is often irreversible.

Florida's Medical Malpractice Law

While some birth injuries have unavoidable causes, many occur due to medical mistakes; however, not all mistakes rise to the level of medical malpractice. You can only expect your medical provider to provide care based on the information that he or she has been given and the equipment that is available to him or her. Medical malpractice is the legal name for negligence on the part of a medical provider, and it is responsible for up to 5,000 deaths in Florida each year. Medical malpractice occurs when a medical provider fails to uphold the standard of care, treatment, and skill that a reasonably prudent health care provider would under similar circumstances, resulting in damage to the patient. Some of the highlights of Florida's medical malpractice laws include the following:
  • Injured individuals can file medical malpractice suits against doctors, surgeons, nurses, and other hospital staff, as well as medical facilities. The injured patient usually files the medical malpractice lawsuit, or—in the case of a minor child being injured or if an injury is severe, permanent, or disabling—family members may sue on behalf of the patient. Florida law prevents parents from filing a medical malpractice suit on behalf of their child if the child is over 25 years old.
  • If you wish to file a medical malpractice lawsuit, generally you are required to do so within two years of discovering the injury or four years from the date in which the injury occurred. Birth injuries actually pose an exception to this rule, as the state allows the parents of the minor child to file the medical malpractice lawsuit up to the child's eighth birthday.
  • To file a medical malpractice lawsuit against a negligent provider, you must first serve the health care provider with a notice of intent to sue. This notice must be accompanied by a sworn affidavit from a medical professional stating that you have a valid medical malpractice claim.
  • Once the notice of intent to sue has been served, the health care provider has 90 days in which to settle your claim. These 90 days count as part of your statute of limitations. You may receive an additional 90 days as an “investigation period” during which you may find a medical expert to investigate your case. If the provider doesn't wish to settle, you have 60 days or the remainder of your statute of limitations—whichever is a longer period of time—in which to file your suit with the court. The investigation period cannot be used to extend your statute of limitations.
  • The medical professional who provides a sworn affidavit regarding the validity of your claim must specialize in the same specialty as the provider you intend to sue and must have spent time during the three years immediately preceding your claim either actively practicing medicine, instructing students in that specialty, or participating in clinical research pertaining to that specialty at an accredited facility.
  • Although Florida's medical malpractice law authorizes a cap on damages, including a $500,000 cap on non-economic pain and suffering damages and $1,000,000 for non-economic damages sought in cases where the patient died or was in a vegetative state, the Florida Supreme Court declared these caps unconstitutional in 2017.
  • Part of proving negligence by a medical provider is showing that the injury sustained was unforeseeable or an unnecessary part of medical treatment.
  • Punitive damages, designed to punish the negligent party, are rare in medical malpractice cases, as they require proof that the provider intended to cause serious harm.
  • As with other personal injury suits, medical malpractice cases are subject to Florida's pure comparative negligence standard, which means that if a plaintiff was partially responsible for the injury, he or she may still sue other at-fault parties, but any financial award will be reduced by the percentage of blame that he or she bears for the injury. For example, if you failed to follow your doctor's treatment plan and it resulted in a birth injury to your child, the court will determine how much your failure to follow the prescribed treatment factored into the injury. For example, if the court determined that you were 30 percent responsible for the injury, the court would reduce your award by 30 percent.
  • Attorneys filing medical malpractice suits on behalf of their clients must submit with the initial pleading a certificate of counsel that a reasonable investigation was conducted and formed a good faith belief that grounds for action exist against each named defendant.
  • In cases where multiple defendants are named and damages exceed $25,000, Florida's joint and several liability rule requires that a court divide liability between the defendants in proportion to each one's level of responsibility.

Did Your Child Suffer a Birth Injury Due to Medical Malpractice?

As previously stated, not every injury is caused by a mistake, and not every mistake rises to the level of medical malpractice. However, if you believe your child suffered a birth injury due to medical malpractice in a Florida healthcare facility, contact an attorney as soon as possible to determine your eligibility to file a lawsuit. Medical malpractice cases are complicated and lengthy, and they are best fought with the help of a knowledgeable attorney. Dolman Law Group Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 (727) 451-6900 https://www.dolmanlaw.com/florida-personal-injury-lawyer/


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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