- Our Firm
- Personal Injury
- Medical Malpractice
- Birth Injuries
- Apgar Scores
- Birth Paralysis
- Cortical Blindness
- Neonatal Hypoxia
- Preterm Labor Negligence
- Brachial Plexus Palsy
- Delivery by Forceps or Vacuum Extraction
- Infant Resuscitation Errors
- Neonatal Therapeutic Hypothermia
- Retinopathy Prematurity
- Brain Damage/Head Trauma
- Developmental Delays from Birth Malpractice
- Infant Wrongful Death
- NICU Malpractice
- Shoulder Dystocia
- C Section Cases
- Erb’s Palsy
- Nuchal Cord Malpractice
- Torticollis (Wry Neck)
- Facial Paralysis
- Klumpke’s Palsy
- OB-GYN Malpractice
- Uterine Rupture
- Cephalopelvic Disproportion
- Fetal Monitoring Malpractice
- Periventricular Leukomalacia
- Cerebral Palsy
- Group B Streptococcus
- Meconium Aspiration Syndrome
- Placental Abruption
- Clavicle Fracture
- Midwife Malpractice
- Free Consultation
Birth injuries are the result of medical malpractice. When the victim of the doctor’s malpractice is a newborn baby or an unborn fetus, the doctor and his or her medical facility can be held responsible and legally liable for the consequences of their poor actions or negligence.
The birth injury lawyers at Gilman & Bedigian can help victims and their families recover the compensation they deserve if they have suffered a birth injury in the State of Hawaii.
Examples of Birth Injuries in Hawaii
There are a lot of different kinds of birth injuries that a newborn can suffer. All of them, though, can lead to medical conditions that prevent them from living a full life. Some of them are even likely to be fatal after only a few years.
Examples of birth injuries include:
- Cerebral Palsy
- Erb’s Palsy
- Facial paralysis
- Diabetic retinopathy
- Intracranial hemorrhage or subconjunctival hemorrhage
- Shoulder dystocia
- Oxygen deprivation
- Perinatal asphyxia.
To make things even more complex, each type of birth injury can be relatively minor or extremely severe. For example, the developmental delays caused by oxygen deprivation during a baby’s delivery can hardly be noticeable or can keep them from ever functioning well enough to live independently.
When the cause of the injury was a doctor’s negligence or mistake, the victims deserve to be compensated because they were not at fault and could not do anything to prevent the harm they suffered.
Some Birth Injuries Happen Before the Baby is Delivered
In some cases, the doctor’s malpractice can happen well before the baby is delivered. It can even happen before the mother is aware that she is pregnant.
Sometimes, birth injuries happen to the fetus while it is in utero when a doctor prescribes medication to the mother without first ensuring the mother is not pregnant. Doctors should always make sure the mother is not pregnant before prescribing these kinds of drugs, but some do not. When that happens, the fetus can suffer irreparable damage early in its development.
Doctors can also commit malpractice and cause a birth injury if they do not perform a genetic test or notify the parents of the risks of their child being born with a genetic condition that can cause a birth defect. This can prevent the parents from making an informed healthcare decision for their unborn child and their family.
Most Birth Injuries Happen in the Delivery Room
While some birth injuries happen earlier in the pregnancy, most occur in the delivery room when it is time for the baby to be born.
Doctors can cause a birth injury if they act inappropriately or unreasonably. This often happens during a prolonged or especially difficult labor and delivery process and often involves the inappropriate use of extraction devices. When these devices are used to assist in delivery, any excessive force used by a doctor can cause the newborn baby irreparable damage.
Doctors can also cause a birth injury if they do not act or fail to take precautions that would alleviate, reduce, or completely avoid the fetal distress that often leads to a birth injury. By failing to take appropriate conduct and avoid a potential birth injury, doctors can commit malpractice and be held accountable if one does happen.
This is exactly what happened in a recent case that the birth injury lawyers at Gilman & Bedigian brought to trial in Maryland. An expectant mother went to Johns Hopkins Hospital in Baltimore. Doctors, however, ignored sure signs of fetal distress and did not perform a C-section under nearly two hours had passed. As a result, the baby was born with Cerebral Palsy and other developmental problems. With the help of Gilman & Bedigian, the victim and his family brought the case all the way through trial and won a $55 million verdict – the highest ever for a birth injury claim in Maryland.
What Causes Birth Injuries?
Birth injuries can be caused by either a doctor’s negligence or medical malpractice, or by the child’s genetics.
Delivery Room Malpractice
When a doctor’s malpractice was the cause of the child’s injuries, both the doctor and his or her hospital or medical institution can be held liable for the results and can be made to compensate the victims. This usually happens in the hospital delivery room when:
- The doctor did not notice sure signs that something was going wrong
- The doctor knew or should have known that the delivery was becoming unsafe, but did not take appropriate action
- The epidural shot was not administered properly
- A surgeon made a mistake during the C-section
In these cases, holding the doctor accountable is essential. It is also essential to hold the hospital liable for the actions of its employees. This can ensure that there is someone on hand who can pay the full amount of compensation that the victims deserve.
How Can a Genetic Defect Lead to Malpractice?
Doctors and other medical professionals are not held responsible when a child is conceived with a genetic defect that could cause serious problems once they are born.
They are, however, responsible for identifying certain serious genetic defects that are easily discoverable during the pregnancy, and then notifying the parents of those potential issues.
For example, doctors can see if a fetus is developing incorrectly in the uterus and is going to be born with serious birth defects that will prevent them from living a full life. If they do not even monitor the fetus’ development, it can prevent the parents from making an informed decision about the birth of their child, and the doctor could be responsible for the results.
Defective Medical Devices and Birth Injuries
Medical malpractice is not the only cause of a birth injury. In some cases, a defective medical device can be the ultimate culprit of a serious injury to a newborn.
During the childbirth process, doctors use a wide variety of medical devices. Some of these are personal protective equipment, like gowns, gloves, and masks. Others are more complicated mechanisms, like:
- Assisted delivery or extraction devices, like a forceps or a vacuum delivery device
If any of these devices is somehow defective, it can hurt the newborn or can create complications that indirectly lead to a birth injury as doctors struggle to complete the delivery with broken or faulty medical equipment.
Devices can be defective in one of three different ways:
- Design defects are problems with how the medical device was supposed to be made
- Manufacturing defects are problems with how a particular device was made, breaking with the design in dangerous ways
- Advertising defects are problems with the instructions that are provided to doctors, failing to warn them of potentially hidden dangers of using the device
In any of these cases, the result is a serious increase in the potential for danger to the patient and newborn. The device could break or could unknowingly be misused by the doctor or healthcare professional, putting the child at risk of a serious birth injury.
In addition to these common defects, sterilized medical equipment can also be defectively packaged or shipped. If the device is no longer sterile when it reaches the hospital and is used in the delivery room, the newborn child and his or her mother can be put at risk of a severe infection.
Because the doctor is not at fault in these cases, it can take a products liability claim to recover compensation.
What are the Symptoms of a Birth Injury?
Depending on the birth injury that the child has suffered, there could be a wide variety of symptoms. If the birth injury was a physical one, some of those symptoms will likely be apparent immediately. If it was a neurological one, though, the symptoms might take months to even begin to become apparent.
The symptoms that can indicate a birth injury right after the child’s birth include:
- Dislocated shoulder
- Broken collarbone
- Other broken bones
- Subconjunctival hemorrhaging in the baby’s eye
- Fractured skull, which can usually be detected by a lump or indentation in the child’s head
- Bruising or swelling
- Breathing problems that require a breathing tube
- Paralyzed muscles, often in the baby’s face, arms, or hands
However, some of the symptoms of a birth injury may be difficult to notice or can also be a symptom of something other than a birth injury. Some of these include:
- Swallowing difficulties
- Problems eating
- Coughing and wheezing
- Uncontrollable crying, especially if the baby arches its back
- Erratic eye movements
- Vision problems
- Hearing loss
Not all symptoms of a birth injury show themselves right after the child is born, though. When the birth injury is a neurological one, the symptoms are often developmental delays that only become apparent as the child grows up and begins to miss the developmental milestones that doctors use to gauge their progress. For example, doctors expect children to begin to respond to their own name by the time they turn seven months and begin to run by the time they turn two. Children who consistently reach these milestones later than they are supposed to may have suffered a birth injury that is causing their developmental delays.
Compensation for Birth Injury Victims in Hawaii
The victims who suffer birth injuries, as well as their family members, deserve to be compensated for all of the setbacks and difficulties associated with their medical condition. In Hawaii, this can be accomplished by filing a birth injury lawsuit, which claims that the doctor’s malpractice caused the injury and demands that the doctor is held accountable for what was done.
The compensation that can be recovered in a birth injury case in Hawaii does not just cover the medical bills associated with the injury. It also includes the pain and suffering felt by the child, the parents’ loss of companionship, and compensation for the child’s reduced ability to earn a living once they grow up.
Compensation for the child’s pain and suffering, though, are strictly limited to only $375,000, no matter how painful or debilitating their injuries. This is the result of Hawaii’s damage cap for medical malpractice, Hawaii Revised Statute § 663-8.7.
That limitation, though, does not include the child’s mental anguish, including the negative feelings they have from their loss of life’s enjoyments and any disfigurement they have from their birth injury.
When the Birth Injury is Fatal: Survival Actions in Hawaii
Unfortunately, some of the birth injuries that negligent doctors can inflict on newborns can end up being fatal. When they are, the legal process for recovering compensation and holding the doctor accountable can be more complicated.
Fatal birth injuries often happen when a doctor’s medical malpractice causes one of the following injuries:
- Reduced blood flow
- A traumatic injury
Hypoxia is the medical condition where a newborn is completely deprived of oxygen. If this is not corrected, and quickly, the newborn can lose cells in his or her brain, organs, or muscular tissue. This can cause damage that ends up being fatal.
Even if the child is breathing, a drastically reduced blood flow can prevent the oxygen that they are getting from reaching the organs where it is needed.
Regardless of how it happens, a fatal birth injury should not let a doctor escape liability simply because the child died from his or her negligence. Hawaii’s survival statute, Hawaii Revised Code § 663-7, ensures that this is not the case.
That statute allows the estate of someone who has died at the hands of someone else’s negligence to recover all of the compensation that the victim would have deserved, had they survived the accident. This includes incidents of medical malpractice. As of 2018, according to the Supreme Court of Hawaii, it also includes the estates of viable fetuses that had been harmed and killed by a doctor’s malpractice.
That case, Castro v. Melchor, allows the legal representative of a birth injury victim to recover all of the compensation that the child would have been entitled to receive, had they overcome the birth injury. This includes damages like medical expenses, pain and suffering, emotional distress, and loss of filial consortium.
The Statute of Limitations for Birth Injury Claims in Hawaii
All birth injury lawsuits have to abide by the state’s statute of limitations. In Hawaii, that statute is made complicated by the fact that it changes based on whether a parent or legal guardian is filing it on the child’s behalf, or if the child is directly represented by a lawyer.
Hawaii Revised Statute § 657-7.3 is the statute of limitations for birth injuries in the state. Subsection (a) of this statute requires all medical malpractice claims, including those for birth injuries, to be filed within two years.
However, subsection (b) tolls or delays the start of the statute of limitations for minors representing their own interests without their parents. Under this section, minors have until their tenth birthday to file a birth injury lawsuit.
Reliable and Compassionate Birth Injury Lawyers in Hawaii
If you or your child has been born with a birth injury in Hawaii, the birth injury lawyers at Gilman & Bedigian can help you recover the compensation you need and deserve. Contact us online to get started on your case.