Out of all of the injuries that medical malpractice can cause, birth injuries are widely regarded as the most devastating. The victim is a newborn child, who will then have to live his or her entire life with the results of the malpractice. The debilitation of a serious birth injury can prevent the child from living a full life and can sometimes prove to be fatal after only a few short years.
The personal injury lawyers at Gilman & Bedigian have a track record of success representing victims who have suffered serious birth injuries at the hands of a doctor's malpractice. Victims in Alaska who have suffered a birth injury or whose child has been hurt by a doctor's mistake or negligence can rely on us for effective legal help.
The Different Kinds of Birth Injuries
Birth injuries are disturbingly common in America. One study estimated that between 0.06 and 0.08% of live births in the country led to a birth injury to the newborn. With more than 3.85 million babies born in the U.S. every year, that means between 231,000 and 309,000 infants are born with a defect, abnormality, or birth injury every single year.
Those birth injuries can happen at two important junctures: During pregnancy or during the delivery.
Birth Injuries During Pregnancy
Birth injuries that happen during the mother's pregnancy can be the result of a doctor's malpractice in several different situations:
- The doctor did not perform a genetic test to determine the risk of a genetic birth injury.
- The doctor performed a genetic test but misread the results or failed to communicate them with the parents.
- The doctor prescribed the mother medication that would be harmful to a fetus without first checking to make sure the mother was not pregnant at the time.
These in utero birth injuries can be devastating because they will often permanently saddle the child with debilitating injuries that cannot be overcome. When the doctor's mistake is a failure to detect a genetic birth injury or abnormality, it can prevent the parents from making an informed healthcare decision.
Most Birth Injuries Are Caused By Delivery Room Malpractice
The vast majority of the birth injuries that happen in Alaska are the result of a healthcare professional's medical malpractice in the delivery room. For example, a doctor can:
- Make poor decisions when faced with a difficult delivery;
- Use too much force with assisted delivery devices and hurt the unborn child;
- Negligently provide anesthesia, like an epidural, or other drugs; or
- Ignore or misread sure signs that the unborn child is in distress.
These negligent actions can cause a birth complication like oxygen deprivation that puts the child at risk of developing a serious birth injury. In some cases, that injury will impair the child for their entire life. In others, it can be fatal.
Birth Injuries During Delivery
The birth injuries that happen during the baby's delivery are often far more traumatic because they are frequently caused by physical force. In many cases, doctors use assisted delivery methods during traumatic births or protracted labor. However, these can cause fetal stress that can break bones or cause other injuries if done improperly. Avoiding these situations and preventing them from developing is critical, but doctors often miss signs of fetal stress, forcing them to use potentially dangerous methods to bring the delivery through to its completion.
While Less Common, Defective Medical Devices Can Cause a Birth Injury
While most birth injuries are caused by the doctor's medical malpractice in the delivery room or their failure to recognize birth defects, occasionally a birth injury will be caused by a defective medical device.
Especially when they have to assist in the baby's delivery, doctors use a wide variety of medical devices during childbirth. These include things like:
- Forceps, which can reposition the baby at the beginning of the birth canal to make the process easier
- Vacuum-assisted extraction devices, which tug on the baby in the birth canal if it gets stuck
- Numerous types of drugs for the mother during the delivery, both to ease her pain and to increase her dilation
- Towels, sponges, and other sanitary instruments
Each of these devices and other implements is used at the very end of a long supply chain that begins with the device's design. Mistakes can be made at every step of the way, putting newborn children in peril:
- Defectively designed medical instruments put patients and infants at unnecessary risk because of a design flaw
- Manufacturing defects create medical products that do not comport with the design and can break and cause a birth injury
- Instructions for medical devices can fail to warn doctors of the potential for harm that the device can cause, keeping the doctor from acting differently to protect his or her patient
- Packaging for sterilized equipment can be inadequate or broken, putting the eventual user at risk of an infection from bacteria-laden medical devices
While the doctor may not be at fault for these situations, that does not mean that the injured newborn and his or her parents cannot recover compensation. The negligent party or company responsible for the defective device can be held accountable through a products liability lawsuit.
Examples of In Utero & During Delivery Birth Injuries
Examples of birth injuries – both in utero and during delivery – include:
- Oxygen deprivation
- Cerebral Palsy
- Erb's Palsy
- Intracranial hemorrhaging
- Subconjunctival hemorrhaging
- Spinal cord injuries
- Should dystocia
- Skull fractures
Genetic Defects Can Also Lead to Liability for Malpractice
Even genetic defects can lead to medical malpractice if the doctor fails to take reasonable steps to detect a defect or fails to notify the parents of the potential for giving birth to an injured child.
Many genetic problems are detectable early in the pregnancy. If the doctor misreads the result of a genetic test or fails to conduct one, at all, they can keep the parents from making an informed decision. That negligence can amount to malpractice in some cases.
Symptoms of a Birth Injury
Obviously, different birth injuries will cause different symptoms. In some cases the symptoms are very apparent, like when the baby is born with a broken bone from a traumatic delivery. However, there are some signs that parents can look for in a newborn that suggest a less apparent birth injury:
- Difficulties swallowing or eating
- Inability to gain weight
- Breathing difficulties
- Excessive drooling
- Sensitivity to light
- Low heart rate
- Seizures, especially within a few days of birth
- Coughing or wheezing
- Poor reflexes
- Movement difficulties
- The baby arches its back while crying
These symptoms, though, can be explained by other health issues or even innocuous causes rather than a birth injury. It is important to talk to an independent pediatrician to see if your child suffered a birth injury.
Not all symptoms of a birth injury are present immediately after the child is born. Many birth injuries cause emotional or mental impairments or developmental delays that only become apparent months or even years after the child's birth.
In these cases, the symptoms of the child's birth injury are the developmental milestones that they miss. These milestones are the physical, social, and mental capabilities that children are expected to develop as they grow up. When they consistently miss these milestones and fall behind their peers, it is a symptom that something is wrong and that they may have suffered a birth injury that is impairing or slowing their growth and development.
It may take up to a year for the delayed symptoms of a child's birth injury to even begin to show themselves. It may take another year for it to become apparent that those symptoms indicate that there was a birth injury, rather than some other medical condition.
Compensation Available After a Birth Injury in Alaska
Victims of birth injuries in Alaska deserve to be compensated for their losses. Those losses, also known as legal damages, can be extremely high given the age of the victim and the serious and expensive medical conditions that the injury can cause.
Because the birth injury was the result of medical malpractice rather than something the victim did or failed to do, the doctor or the hospital should be held liable and should compensate the victim and his or her family.
That compensation should cover the following setbacks:
- Medical bills. Birth injuries lead to medical complications that require expensive medical care.
- Anticipated future medical expenses. Children born with a birth injury will have to deal with it for the course of their lives. Medical expenses will continue to accumulate well after a birth injury lawsuit is finished.
- Pain and suffering. Victims should be compensated not only for the physical pain that they feel but also for the mental and emotional anguish and trauma that they suffer as the developmental delays associated with their birth injury set them behind their peers and prevent them from doing the things they want to do in life.
- Reduced earning capacity. Children who are born with a birth injury will likely struggle professionally. Compensation may be available for the income that they will no longer be able to achieve.
- Loss of consortium. Parents of a child born with a birth injury suffer as well. Compensation for their loss of consortium or companionship can be recovered in a birth injury lawsuit.
However, Alaska limits the amount of compensation that can be recovered for the parents' loss of consortium and the child's pain and suffering. When the birth injury was fatal or was more than 70% disabling, Alaska Statute 09.55.549(e) limits these types of compensation to only $400,000. When the birth injury was less than 70% disabling, 90.55.549(d) caps these damages at $250,000, regardless of how much the victims should receive.
Wrongful Death Cases
In some cases, the medical malpractice of a doctor or other healthcare professional proves to be fatal for the newborn. The child may be stillborn, or may be born alive, but with such serious birth injuries that they are unable to overcome them for very long.
In either one of these tragic situations, the death of the newborn should not absolve the doctors for their negligence or poor conduct. If their malpractice was the cause of the child's condition that led to his or her death, they should not avoid liability simply because the child is no longer able to hold them liable.
Infant wrongful death cases allow the newborn's parents to invoke the child's rights and file a lawsuit against the negligent doctor whose malpractice.
Children can be born with a fatal condition or can be stillborn after a doctor's medical malpractice leaves them with any of the following conditions:
- Hypoxia, or a severe case of oxygen deprivation
- Traumatic injuries from the delivery
- Reduced blood flow
Each of these conditions can be fatal.
Hypoxia is likely the most common. Oxygen deprivation creates a litany of other health complications for newborns. It can lead to Cerebral Palsy and even brain damage. However, in the worst cases, the child can be totally deprived of oxygen for so long that they suffocate and are stillborn.
Newborn children can also suffer fatal injuries if their blood flow gets cut off to their necessary organs or to their brain. Even if the child is breathing during the delivery, the lack of blood flow can prevent the oxygen from getting where it needs to go and lead to catastrophic results.
No matter how the infant's death occurred, if it was the result of the doctor's malpractice the parents deserve to be compensated.
Products Liability Cases for Birth Injuries
Sometimes, the birth injury is caused by the tool or medical device that the doctor uses during the delivery or C-section. These devices do not just come from nowhere: Hospitals buy them from distributors who get them from manufacturers who build them according to designs provided by a medical device or large pharmaceutical companies. Problems can arise at any point during this supply chain:
- The design can be defective, putting people at unnecessary risk
- The medical device can be manufactured in a way that varies from the design and puts people at risk of injury
- The instructions provided to doctors may fail to warn them of certain risks that are less than apparent and can hurt patients
- The device may be improperly sealed or packaged so it is no longer sterile when it reaches the hospital
Each of these circumstances can lead to serious birth injuries if the device is used during a child's delivery. While the doctor may have done everything correctly, the newborn baby would still have gotten hurt through no fault of its own or any decision made by his or her parents. Just because the doctor was not at fault does not mean that the newborn baby and their parents cannot recover compensation for the injuries that they did not cause. Instead, it is the negligent party or company in the medical device's supply chain that can be held accountable through a products liability lawsuit.
These lawsuits can be based on birth injuries caused by:
- Forceps, which are often used to reposition a baby while it is in the birth canal
- Vacuum-assisted extraction devices, which gently pull the child from the birth canal if they encounter an obstacle
- Drugs used the delivery, like the epidural for the mother or Pitocin
Statute of Limitations in Alaska
Parents who want to bring a birth injury lawsuit on their injured child's behalf have two years to file the lawsuit under Alaska Statute 09.10.070. This is Alaska's statute of limitations and requires lawsuits to be filed soon after the event occurred in order to make sure evidence is still fresh.
Children who want to file on their own behalf, though, have more time to initiate the lawsuit. Alaska Statute 09.10.140 tolls or delays the statute of limitations, keeping it from running until the child's eighth birthday.
Talking to a lawyer well before the statute of limitations is set to expire, though, is important. Gathering evidence of a birth injury takes time and putting together your best case without rushing to beat the statute of limitations can drastically increase the odds of success.
An Example of a Birth Injury Lawsuit: Gilman & Bedigian's $55 Million Verdict Against Johns Hopkins
The birth injury lawyers at Gilman & Bedigian recently represented a birth injury victim and his family, helping them recover $55 million in compensation from Johns Hopkins Hospital in Baltimore, Maryland, setting the state record for the highest jury verdict in a birth injury case.
In that case, doctors did not react to clear signs of fetal distress during delivery. Instead of immediately performing a C-section, they waited two hours. During that time, the baby lost his supply of oxygen and was born with significant physical and mental disabilities, as well as Cerebral Palsy.
The lawyers at Gilman & Bedigain fought for compensation for the parents and child and won. Contact us online to get started on your case.