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Birth injuries happen when a doctor’s medical malpractice leads to a baby being born with serious medical conditions. That malpractice can happen in the delivery room or while the fetus is still developing during the pregnancy. When it happens in Delaware, though, both the hurt child and his or her parents can be entitled to compensation for the costs of the injury that they did not cause.
The birth injury lawyers at Gilman & Bedigian can help victims in Delaware recover the compensation that they need and deserve with their strong legal representation and advocacy.
Delivery Room Malpractice a Leading Cause of Birth Injuries
A leading cause of birth injuries in Delaware is when a doctor or other healthcare professional commits medical malpractice at the baby’s birth. Some of the most common mistakes that are made include:
- Not noticing clear signs of fetal distress
- Not taking appropriate action to avoid a difficult birth
- Negligently performing a C-section
- Using too much force during an assisted delivery
These mistakes can cause a variety of complications and birth injuries, like:
- Oxygen deprivation
- Cerebral Palsy
- Broken bones
Doctors and hospitals should compensate victims who were hurt through no fault of their own.
Birth Injuries During Pregnancy and the Delivery in Delaware
Birth injuries can happen either while the baby is still developing in the mother’s uterus during pregnancy or in the delivery room.
Birth injuries that happen in utero can be the result of a doctor’s malpractice if a doctor prescribed the mother potentially harmful medication without first checking to make sure she was not pregnant. Lots of prescription drugs drastically alter the chemical balance necessary for a fetus’s development during pregnancy. Not ensuring that a woman is not pregnant before prescribing potentially harmful drugs can negligently put the fetus at serious risk.
They can also happen in utero if a doctor unreasonably fails to notify the parents about the chances of their child being born with a significant birth defect. For example, if a doctor does not tell parents that a medical condition suffered by the couple’s first child is genetic, and then the parents have another child that is born with the same medical condition, it can amount to malpractice and lead to a birth injury lawsuit.
However, birth injuries tend to happen more often during the baby’s delivery. Prolonged and traumatic labor can lead to dangerous deliveries that see the amount of fetal distress suffered by the newborn skyrocket. This is especially true if doctors have to resort to the use of extraction devices to complete the delivery. If poorly done, assisted delivery techniques can hurt the baby in ways that cause irreparable harm.
Doctors can also commit the medical malpractice that can make them liable for a resulting birth injury if they do not take appropriate measures to avoid a difficult delivery and reduce the odds of a birth injury to the child.
An Example of a Birth Injury: Gilman & Bedigian’s $55 Million Verdict
An example of a birth injury and a subsequent lawsuit is a case that the lawyers at Gilman & Bedigian brought all the way through trial in Maryland.
A mother in Baltimore went to Johns Hopkins Hospital in Baltimore to give birth. The doctors there, though, did not respond to clear signs of fetal distress for nearly two hours. When they finally did change their tactics and perform a C-section, the baby had been deprived of oxygen for so long that he was born with Cerebral Palsy and mental and physical impairments.
The attorneys at Gilman & Bedigian helped the boy and his family file a birth injury lawsuit. Johns Hopkins insisted that the doctors and the hospital did nothing wrong and refused to settle the case. It went all the way through trial until the jury issued a $55 million award, a state record for a birth injury case.
Common Types of Birth Injuries
Some of the most severe and common birth injuries include:
- Facial paralysis
- Shoulder dystocia
- Subconjunctival hemorrhaging or intracranial hemorrhaging
- Spinal cord injuries
- Erb’s Palsy
- Cerebral Palsy
- Oxygen deprivation
- Perinatal asphyxia
Most of these conditions can saddle a child with severe medical debilitations that will keep them from living a full and healthy life. In many cases, a birth injury can lead to a medical condition that, in turn, leads to other medical complications that cause even more setbacks and debilitations. Some of the most severe birth injuries can also be fatal after only a few years.
Common Symptoms of Birth Injuries
A birth injury can cause symptoms in the immediate aftermath of the birth, or can cause developmental delays that do not become apparent for months or even years after the injury. When the symptoms of a birth injury are so delayed, it can be difficult to see the connection between a doctor’s unknown or hidden medical malpractice and the results.
Some Symptoms are Immediately Apparent
Some instances of medical malpractice cause birth injuries that create symptoms right after the child’s birth. These symptoms can include things like:
- Broken bones
- Dislocated shoulders
- Bruising or swelling, especially in the head or neck
- A fractured skull, usually detectable from a lump or indentation in the baby’s head
- Severe breathing problems that require a breathing tube and NICU stay
- Subconjunctival hemorrhaging in the baby’s eye
- Muscle paralysis, often in the baby’s face or arms
Other Symptoms are Immediate But Vague
There are also a handful of other symptoms that the child has suffered a birth injury, but that can also mean a host of other medical issues, or sometimes nothing at all. These include symptoms like:
- Excessive fussiness
- Nausea or vomiting
- Eating issues, including problems swallowing
- Crying with an arched back, a sign of extreme pain
- Coughing or wheezing
While these symptoms may indicate that the child suffered a birth injury, they can also mean a lot of other things. Consulting a pediatrician that is independent of the hospital that delivered the baby is essential.
Developmental Delays Can Take Months to Appear
Many birth injuries result in neurological problems that only begin to manifest themselves as the child grows up and suffers developmental delays. The symptom for these birth injuries is in the growth milestones that the child misses. This can take months or even years to see.
Malpractice Early in the Pregnancy Can Cause Birth Injuries
Medical malpractice does not have to happen at the child’s birth to cause a birth injury: Malpractice can also occur earlier in the pregnancy and still be the cause of the problem. For example, doctors can:
- Fail to conduct a genetic test that would have detected a birth defect
- Prescribe the mother drugs for a health condition that end up damaging the fetus’ development
- Fail to tell parents about the potential for a genetic abnormality
Compensation for Victims of Birth Injuries in Delaware
Because these birth injuries happened as a result of a doctor’s medical malpractice rather than something that the parents or child did, the law in Delaware allows the victims and their families to recover compensation. That compensation aims to cover:
- Medical bills that have already been paid to treat the child’s birth injury;
- Medical expenses that are reasonably anticipated in the future for continued care and treatment;
- The child’s reduced ability to earn a living because of their birth injury;
- Physical pain felt by the child who suffered the birth injury;
- The child’s mental suffering and anguish from not being able to fully enjoy life and live it to the fullest; and/or
- Loss of companionship and suffering felt by the parents who have to watch their child grow up with developmental delays.
In Delaware, there is no cap on the amount of damages that can be recovered in a birth injury or medical malpractice claim. This makes Delaware unlike many other states, many of which have put strict limits on the amount of recovery available in a lawsuit, often targeting compensation for things like pain and suffering. Without a damage cap statute, though, victims of birth injuries in Delaware can recover all of the compensation that they are entitled to receive.
When the Malpractice is Fatal: Infant Wrongful Death in Delaware
The birth injuries that doctors can cause with their medical malpractice can be so severe that the child ends up dying from them. These cases often involve one of the following medical conditions:
- Drastically reduced blood flow
- Complete oxygen deprivation, or hypoxia
- A traumatic birth injury that compromises the newborn’s brain, spine, or organs
For both hypoxia and reduced blood flow, the result is the same: The child’s brain, organs, and tissues do not receive the oxygen that they need for survival for so long that they became so damaged that they could no longer function. The only difference is whether the oxygen deprivation is caused by the baby’s inability to breathe, or by a severely reduced blood flow that prevented the oxygen from getting to where it needed to go.
In Delaware, just because the victim of a doctor’s negligence or malpractice did not survive the incident does not mean that the doctor can escape liability for what they have done. Delaware’s wrongful death statute, 10 Delaware Code § 3724, lets the spouse, parents, child, or siblings of a deceased person to file a wrongful death lawsuit against the person whose negligence caused the fatal injuries.
In Delaware, a “deceased person” under the wrongful death statute includes viable fetuses. Under the Delaware court case Worgan v. Greggo & Gerrara, Inc. from 1956, whenever someone else’s negligence causes the death of a viable fetus, the parents can file a wrongful death lawsuit against the wrongdoer, even if the fetus was not born alive. Viability, however, is a moving concept. It means that the fetus could survive outside the mother’s womb. If the fetus was not yet viable when the doctor committed malpractice and caused a fatal injury, there is no liability.
Statute of Limitations for Birth Injury Cases in Delaware
All medical malpractice and birth injury cases have to comply with the statute of limitations. In Delaware, that statute of limitations is 18 Delaware Code § 6856.
When the parent files the lawsuit, the statute of limitations requires the parent to file the lawsuit within two years of the date of the malpractice.
When the child files the lawsuit, the statute of limitations is delayed or tolled. Children have until their 6th birthday to file a lawsuit for compensation.
You may wonder why a child would file a lawsuit on his or her own behalf, but there are advantages. These advantages are case by case, and that is why it is important to seek the counsel of an experienced birth injury attorney representing victims in Delaware.
When the Injury Was Caused by a Defective Medical Device
Occasionally, the birth injury that the child suffers was not the cause of the doctor’s negligence or medical malpractice, and was instead the result of a defective medical device. These cases are somewhat rare, but they do happen: Doctors use lots of medical devices during the childbirth procedure, and if any one of them is broken, defective, or not sterilized, it can cause serious injuries to the child.
In these cases, there was often very little that the doctor could do to avoid the birth injury. Holding them accountable, then, would be unfair.
Instead, accountability for the birth injury lies with the company that negligently allowed the defect. These incidents can lead to products liability lawsuits, which claim that the injury was caused by a defective:
- Design, if the medical device was designed in a way that needlessly put patients at risk
- Manufacture, if the device was made in a way that did not comply with the design
- Advertisement, if the instructions for the device failed to warn doctors of the risks of its intended use
Additionally, many of the medical devices that are used during a child’s delivery need to be sterile. They are often manufactured and sterilized, and then packaged and shipped to hospitals in ways that are supposed to maintain the device’s sterility. However, mistakes can be made at this juncture, as well, with defectively packaged devices getting contaminated with potentially dangerous bacteria and then used in a medical procedure. This can leave the newborn child and his or her mother with a serious and potentially life-threatening infection.
Because the company that negligently allowed the defective device was the ultimate cause of the birth injury, they should be held accountable.
Capable Birth Injury Lawyers in Delaware
If your child has suffered a birth injury in Delaware, reach out to the lawyers at Gilman & Bedigian by contacting us online to get started with your case.