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When a child is born with a birth injury in California, both the child and the parents deserve to be compensated if the birth injury was the result of the doctor’s negligence or medical malpractice.
In California, though, the way that compensation can be recovered is a bit different than it is in other states. Rather than only being able to file a birth injury lawsuit, parents who file a claim on behalf of their injured child can also sue for wrongful birth. Further, children who have suffered a birth injury can also file their own claim in a wrongful life lawsuit.
Birth Injuries Caused by Medical Malpractice
When a doctor makes a mistake or does something negligently in the delivery room, the result is often a birth injury. This can happen in a variety of ways:
- Improperly administering anesthesia or an epidural
- Incorrectly using an extraction device in an assisted delivery and applying so much force that it hurts the child
- Not assisting in a delivery that poses a threat to the well-being of the mother or child
Types of Birth Injuries in California
While the legal mechanisms for recovering compensation are different in California, the underlying birth injuries are the same as everywhere else. They can happen during the delivery as well as while the baby is still developing in the uterus.
Birth injuries that happen during delivery can be especially traumatic because they often produce visible injuries like bruises and broken bones. Birth injuries during delivery can also result in:
- Skull fractures
- Shoulder dystocia
- Nerve damage, including Erb’s Palsy or facial paralysis
- Bleeding in the baby’s brain, whether through a subconjunctival hemorrhage or an intracranial hemorrhage
- Oxygen deprivation which, if left uncorrected, can develop into perinatal asphyxia
- Cerebral Palsy
Injuries like these are preventable. Doctors can usually take steps to reduce fetal distress during the delivery procedure, minimizing the odds of a situation that can lead to a birth injury. When the delivery is a difficult one, doctors using extraction devices to get the baby out should be expected to take the reasonable care necessary to complete the delivery without hurting the newborn.
However, the delivery room is not the only place or time for a birth injury to happen. Birth injuries can also happen in the uterus if a doctor prescribes the mother medication without checking to see if she is pregnant. Certain drugs can harm the growth of a fetus, causing developmental delays and long-term birth injuries. Doctors can also commit malpractice and cause a birth injury if they fail to conduct a genetic test that would have revealed a likelihood of a birth defect. By not communicating these risks to the parents, it prevents them from making an informed healthcare decision.
Genetics Can Lead to Birth Injuries, Too
Some birth defects are caused by the child’s genes. However, doctors and hospitals can still be held liable if they failed to detect the defect and the potential for the child to be born with a disability. They can also be held liable if they do not inform the parents of the possibility that their child will be born with a genetic condition that will impair their life.
Birth Injuries Caused by Defective Medical Devices
A rare, but still important, cause of some birth injuries is a defective medical device. Over the course of the birth of a child, doctors use a wide variety of medical devices, including drugs, protective gear, sterilization equipment, and extraction devices. Some of the most often used devices include:
- Protective gloves for the doctors
- Epidural drugs for the mother
- Oxytocin to help the mother dilate for labor
- Forceps, to reposition the baby before it enters the birth canal
- Vacuum extraction device, to assist in the delivery
Each one of these medical devices, no matter how complex or primitive it is, can be defectively or negligently made and can pose a threat to the newborn. These defects can happen at any time between the device’s design and its eventual use in the delivery room:
- Defectively designed medical devices can negligently overlook a danger to the patients who rely on their use
- Defectively manufactured devices can vary from the intended design in a way that creates unnecessary risk
- Defectively marketed materials can fail to warn doctors of the risks of using them, preventing the doctor from taking appropriate action to keep their patients safe
- Defectively packaged medical materials can become exposed to potentially dangerous bacteria between the production plant and the hospital, raising the risk of an infection in the delivery room where it is used
These cases are different from many other birth injury situations because the doctor is often faultless, as well. Instead, responsibility lies somewhere in the supply chain.
Just because the doctor has not committed medical malpractice, though, does not mean that the hurt child and his or her parents cannot recover compensation. It just means that the lawsuit would be for products liability, rather than malpractice.
Birth Injury Symptoms
In some cases, the symptoms of a birth injury are very clear and are directly related to the malpractice. Examples of these symptoms include:
- Broken bones
- Fractured skull
- An abnormally shaped head, often with a lump or an indentation
- The need for a breathing tube right after delivery
- Dislocated shoulder
- Paralysis, including facial paralysis or asymmetrical facial movements
- Limp or weak limbs, especially in the arms and hands
- Subconjunctival hemorrhaging
- Bruising or swelling
In other cases, though, the symptoms are far less specific and can mean a variety of things in addition to the possibility of a birth injury:
- Breathing difficulties
- Excessive drooling
- Unprovoked or uncontrollable crying
- Crying with an arched back, a sign of extreme pain
- Eating difficulties
- Problems swallowing
- Coordination difficulties
- Strange eye movements
- Excessive fatigue
There are also symptoms of a birth injury that are not easily detected because the child is unable to communicate them to his or her parents:
- Vision problems
- Hearing issues
- Chronic pain
Finally, some birth injuries have no symptoms for weeks, months, or even years after the child’s birth. These are often mental impairments that are brought on by a period of oxygen deprivation during the child’s delivery. Especially when the deprivation was relatively minor, the symptoms may not appear for years.
In these cases, the developmental delays caused by the birth injury will make the child miss some developmental milestones. For example, they can take longer to learn how to crawl or walk than other children of the same age. When numerous milestones are missed, it may be a sign of a birth injury.
If you become suspicious that your child has been the victim of a birth injury, bringing him or her to a pediatrician that works independently from the hospital is crucial for a correct diagnosis.
Wrongful Birth and Wrongful Life Lawsuits in California
In California, victims of birth injuries have several avenues they can go down to pursue the compensation they need and deserve.
Just like in other states, victims can file a lawsuit for a birth injury against the doctor who committed medical malpractice as well as that doctor’s medical institution. These lawsuits follow the same formula as a regular medical malpractice case: the doctor failed to provide reasonable medical care and that caused the baby’s injuries.
However, California is one of only a few states that also recognize two other kinds of birth injury claims:
- wrongful life; and
- wrongful birth.
Wrongful life lawsuits can only be filed by the child who suffered a severe birth injury. This injury has to be extremely debilitating – enough to overcome the defense that a preferable alternative would have been to not be born at all. A wrongful life lawsuit often involves medical conditions that drastically reduce the child’s life expectancy.
Wrongful birth lawsuits, on the other hand, can be filed by the parents of a child who has been hurt or who has been born against their wishes. Wrongful birth lawsuits can happen if, for example:
- a doctor fails to perform an abortion and the child is born against the mother’s wishes;
- a sterilization procedure fails and leads to an unwanted pregnancy; or
- a child’s congenital or hereditary defect is not detected in a genetic test.
In other states, these issues can – but do not always – fall under the umbrella of a birth injury.
Infant Wrongful Death Cases
While California has some of the most robust laws for newborn victims of medical malpractice in the form of wrongful birth and wrongful life lawsuits, it also has some of the most restrictive laws if the birth injuries are so severe that the newborn succumbs to them.
Infant wrongful death cases happen when a doctor’s medical malpractice caused birth injuries that were so severe that the child dies from them. Some of the most common medical conditions that can become fatal include:
- Oxygen deprivation, or hypoxia
- Blood flow problems
- Traumatic birth injuries
Reduced blood flow and hypoxia involve the same medical condition: The newborn loses oxygen to such an extent that it causes tissue and brain damage severe enough that there is no recovery. Traumatic birth injuries, on the other hand, can happen when a doctor’s forceful delivery techniques cause a physical injury severe enough to be fatal, like a broken skull or spinal cord.
In California, wrongful death cases like these are governed by California Code of Civil Procedure § 377.60. This statute lets certain people – often family members – file a lawsuit on behalf of the deceased victim of someone else’s negligence. This includes a doctor’s medical malpractice.
However, the statute only allows wrongful death lawsuits to be filed when a “person” has been the victim of someone else’s negligence, and the California Supreme Court has determined that babies who have not yet been born do not count. In Justus v. Atchison, a case from 1977, the court determined from the context of the statute that the legislature did not intend for the law to cover unborn children. This case has never been overturned on this point and § 377.60 has not been amended to include the unborn. As a result, for the parents to be able to file an infant wrongful death case in California, the child must have been born alive and succumbed to his or her injuries after birth.
Compensation for Birth Injuries in California
California’s law regarding birth injuries is also different in the types of compensation that victims can recover.
For regular birth injury claims based on medical malpractice, victims can recover the typical forms of compensation:
- Medical expenses
- The costs of reasonably anticipated medical expenses in the future
- Lost wages
- Reduced ability to earn an income
- Physical pain
- Mental anguish and suffering
- Loss of consortium.
However, wrongful birth or wrongful life lawsuits can only recover compensation for costs directly associated with the injury. Professional repercussions like lost wages or earning capacity cannot be recovered. Compensation for the child’s pain and suffering and the family’s loss of consortium and companionship are also not available.
Additionally, there is a damage cap for non-economic damages in regular birth injury lawsuits. The Medical Injury Compensation Reform Act, California Civil Code 3333.2, limits these kinds of damages, which cover pain and suffering and loss of consortium, to only $250,000.
When Lawsuits Can Be Filed: California’s Statute of Limitations
California limits when a birth injury lawsuit can be filed.
California Civil Code 340.5 is the state’s statute of limitations for medical malpractice claims. It requires parents to file a lawsuit within:
- three years of the day of the injury; or
- one year of discovering the problem.
However, if the child files the lawsuit, the limitation is delayed until the eighth birthday.
Gilman & Bedigian: Birth Injury Attorneys with a $55 Million Verdict
The medical malpractice and birth injury lawyers at Gilman & Bedigian represent parents and victims of birth injuries in California.
They have a record of success when it comes to birth injury cases. They helped a birth injury victim and his family sue Johns Hopkins Hospital in Baltimore and win a $55 million verdict for the poor care its medical professionals provided – negligent and improper care that led to the child being born with Cerebral Palsy as well as mental and physical impairments.
Smart Personal Injury & Medical Malpractice Attorneys Representing California Birth Injury Victims
Contact Gilman & Bedigian online to get started on your case if you or a loved one has been hurt by a birth injury in California.