Birth injuries are instances of medical malpractice where the victim was a newborn baby. A lot of things can go wrong during a fetus's time in utero as well as during the delivery process. If a doctor makes a mistake or negligently hurts a fetus or newborn, both the child who has been saddled with a life-long injury and his or her parents deserve compensation.
The birth injury lawyers at Gilman & Bedigian represent victims in Colorado and help them recover that compensation.
A Wide Variety of Birth Injuries
There are a huge number of possible birth injuries that newborns can suffer at the hands of a doctor's medical malpractice. Some are worse than others. In the worst cases, a birth injury can be fatal, robbing the newborn of their life within only a few short years. In most cases, a birth injury can lead to debilitating medical conditions that prove to be life-long obstacles for the victim who suffers from one.
Examples of the wide variety of birth injuries that a child can suffer include:
- Oxygen deprivation, which can lead to a host of medical complications and developmental delays, including brain damage and reduced mental abilities, especially if it rises to the level of perinatal asphyxia
- Subconjunctival hemorrhage or intracranial hemorrhage
- Cerebral Palsy
- Erb's Palsy
- Spinal cord injuries
- Facial paralysis
- Shoulder dystocia.
Many Birth Injuries Happen During the Delivery
A lot of the birth injuries that can happen occur during the delivery procedure. Especially when the mother has gone through protracted or difficult labor, delivering the baby can be difficult and can cause the baby lots of fetal distress. The odds of a birth injury being inflicted on the newborn in these difficult deliveries skyrocket, especially if extraction devices are used by doctors to assist in the delivery process.
However, these situations are far from rare. Doctors and surgeons are supposed to be aware of what to do during a difficult delivery. If they do something negligently or by mistake – like using an extraction device in a way that it was not supposed to be used – their conduct can amount to medical malpractice and leave them liable for any birth injury they have caused.
There are also measures that doctors can take to reduce the amount of fetal distress felt by the newborn and that can cause serious birth injuries. This is what happened during a recent case handled by the birth injury lawyers at Gilman & Bedigian.
That case involved a pregnant mother who went to Johns Hopkins Hospital in Baltimore, Maryland. Despite strong signs of fetal distress, doctors did nothing. By the time they realized that something was wrong, two hours had passed. They delivered the boy by C-section, but the damage had already been done: the boy had been deprived of oxygen for so long that he was born with Cerebral Palsy and mental and physical problems that would cause developmental delays.
With the help of Gilman & Bedigian, the boy and his family sued the doctors responsible for the birth injury and won a $55 million verdict, a state record.
Delivery Room Malpractice Can Cause Birth Injuries
Birth injuries are more likely to happen when a doctor commits medical malpractice during the newborn's delivery, though. This can happen when a healthcare professional:
- Does not see sure signs of fetal distress or a problem in the delivery
- Notices these signs but does not take the appropriate action
- Improperly administers epidural anesthesia
- Negligently performs a Cesarean section
- Does not assist in the delivery when they reasonably should have
- Assists in the baby's delivery but uses so much force with an extraction device that it causes a birth injury
When these actions or omissions lead to a birth injury, the doctor and their medical institution should be held accountable and be made to compensate the victims they have harmed.
Birth Injuries Can Also Happen In Utero
While most birth injuries happen during the delivery process, some can also happen while the fetus is developing in the mother's uterus.
One way for this to happen is if a doctor prescribes a woman medication without first checking to see if she is pregnant. Lots of prescriptions can harm a fetus's development. By prescribing one of these drugs to a potential mother, a doctor can put an unborn child in serious danger.
Another way for a birth injury to happen before the child is born is if a doctor fails to conduct a genetic test. These tests can serve as a warning to parents who are thinking about having children about the potential for their child suffering a birth defect. If a doctor does not perform a test or fails to communicate the findings to parents, it can keep the parents from making an informed decision about their family.
Defective Medical Devices Can Cause Birth Injuries
While far less common than medical malpractice or a doctor's negligence, defective medical devices and products can also be the cause of birth injuries in Colorado. When this happens, it can be more difficult to trace whose actions or negligence were the ultimate cause of the newborn child's medical conditions.
Just because it can be more difficult, though, does not mean that the victims of the incident should not be compensated for their losses. It just means that the means for recovering that compensation are through a products liability lawsuit, rather than one for the doctor's medical malpractice.
Products liability lawsuits can claim one of three things about the medical device that was used during the child's development in utero or during the delivery:
- It was defectively designed in a way that unreasonably put innocent people at risk
- It was defectively manufactured in a way that did not did not comport with the intended design and made it more dangerous than it should have been
- It was defectively marketed to doctors in a way that failed to warn them of the risks of using the device
In addition to these three types of product liability lawsuit, children who have been hurt by a defectively shipped medical device can also recover compensation if the device lost its sterility at some point between its manufacture and its eventual use during the child's delivery.
While these cases are relatively rare, that is not to say they do not happen. Doctors use lots of different medical devices during childbirth. If any one of them is defective or has lost its sterility due to negligent shipping or packaging practices, it can leave the child with a serious birth injury that could even be life-threatening.
Symptoms of Birth Injuries
The symptoms that a child has suffered a birth injury can be prevalent immediately after the birth, or can be delayed months or even years.
Immediately Prevalent Symptoms
In some cases, the symptoms of a birth injury are clear and apparent right after the child is born. Some of the most obvious signs that there was a birth injury are:
- Dislocated shoulders
- Broken collarbones or other bones
- Skull fractures, often detectable from a lump or an indentation on the baby's head
- Breathing problems that require a breathing tube right after delivery
- Bruising or swelling, especially in the head or neck
- Paralysis or partial paralysis, whether in the facial muscles or limbs
- Subconjunctival hemorrhaging in the eyes
Not all birth injuries come with such strong symptoms. Others can lead to less apparent symptoms that can have a variety of other causes. These include:
- Inconsolable crying, especially if the baby is arching its back while crying
- Less severe breathing problems
- Constant drooling
- Swallowing difficulties
- Eating problems
Still other symptoms are experienced by children who have been born with a birth injury, but they do not understand their condition or cannot communicate it to adults. These include:
- Chronic pain
- Sensory issues, like vision, hearing, smelling, or tasting problems
Many birth injuries cause neurological issues. Unfortunately, the symptoms for these conditions are often hidden until the child is several years old. In these cases, the symptoms are primarily the missed developmental milestones that the child should be hitting as they grow. While it is not uncommon for children to struggle with certain tasks and take a little longer to develop skills that their peers are learning, when a child is consistently late or is missing those milestones by several months, it can be a symptom of a birth injury.
How Can Victims Recover Compensation for Birth injuries Caused by Genetics?
A genetic birth injury may just seem like bad luck. However, doctors have a duty to detect certain genetic problems that can easily be discovered early on in the pregnancy. If they fail to do so, or if they find evidence of a genetic defect that could lead to the child being born with a serious disability but then fail to notify the parents, they could be held liable for not giving the parents enough information to make an informed decision.
Potential Compensation for Victims of Birth Injuries in Colorado
The children who have suffered a birth injury because of a doctor's medical malpractice deserve to be compensated for the severe setbacks they have suffered in life. The parents deserve compensation, too, for having to watch their child struggle to overcome something that they did not cause.
Birth injury lawsuits in Colorado aim to provide that compensation. While the core component of the compensation that is available in a successful birth injury lawsuit is the medical bills that have already been paid to treat the birth injury, a birth injury attorney can also pursue compensation that would cover the following:
- anticipated medical expenses in the future;
- lost wages while the parents care for the injured child;
- the reduced earning capacity of the child that is due to the injury;
- the child's physical pain from the birth injury;
- mental anguish and suffering caused by the birth injury; and
- loss of companionship suffered by the child's family and parents
However, because birth injuries are based on the medical malpractice of the doctor who acted negligently and caused the newborn's condition, Colorado's damage caps related to malpractice limits the amount of compensation that is available for the child's pain and suffering. Colorado Revised Statute § 13-64-302 limits pain and suffering damages to only $300,000, no matter how traumatic and debilitating the injuries are.
Statute of Limitations for Birth Injury Lawsuits in Colorado
Birth injury lawsuits in Colorado have to be filed within two years to comply with the state's statute of limitations, found at Colorado Revised Statute § 13-80-102. Unlike many other states, this is usually true in Colorado even though the victim was a minor. While other states usually delay the statute of limitations until the victim had become an adult, Colorado Revise Statute § 13-81-103 only delays the statute of limitations for minors if they do not have a legal representative, like a parent, to file the lawsuit on their behalf.
Claims for Infant Wrongful Death
Some birth injuries prove to be fatal. These cases are tragic, and often involve an extreme case of one of the following medical conditions:
- Hypoxia, or oxygen deprivation
- Reduced blood flow
- Traumatic injury during birth
For example, a doctor's malpractice during the child's delivery can cause the child to suffer a serious physical injury. In the worst case scenarios, that injury is severe enough to be fatal, like when it fractures the child's skull or spine.
In cases like these, Colorado's wrongful death statute, Colorado Revised Code § 13-21-202, can apply. This statute allows certain people to file a lawsuit on the behalf of a person who has died due to someone else's negligence.
The statute, however, does not define “person.” Unlike most other states, courts in Colorado have not stepped into the void to effectively define the term. The Colorado Supreme Court has been completely silent, and the only case that sheds light on the issue is Gonzales v. Mascarenas, a ruling by one of the appellate courts in the state.
Even Gonzalez, though, presents a very unique fact pattern. In that case, an expectant mother was 22 weeks pregnant when she was in a car crash. Complications led to the birth of her child, which lived for a little over an hour before passing away because it could not survive on its own.
The court in Gonzalez decided that the mother could pursue a wrongful death case on behalf of her deceased infant. However, it is unclear if, like some states have decided, this was because the baby was a “person” because it had been born alive. Additionally, the non-medical-malpractice context could mean that a wrongful infant death case filed in Colorado against healthcare providers gets distinguished.
Gilman & Bedigian: Birth Injury Lawyers in Colorado
The birth injury lawyers at Gilman & Bedigian can help victims of birth injuries in Colorado recover the compensation they need and deserve. Contact us online for help.