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Birth injuries are medical conditions that affect newborn babies and that are caused by a doctor’s negligence or medical malpractice. They frequently lead to serious problems and disabilities that the injured child will have to deal with for the rest of their life.
Because birth injuries are the fault of the doctor who caused them, innocent victims in Illinois can recover compensation for their losses. The birth injury lawyers at Gilman & Bedigian can help make that happen.
Birth Injuries Most Frequently Happen in the Delivery Room
Out of all of the birth injuries that can happen, they are most likely to occur in the delivery room when the child is born. Delivering a baby is a difficult and and often traumatic experience for both the mother and the child, especially if the mother’s labor takes a long time or the baby gets blocked in the birth canal. In these cases, doctors often use extraction devices to help the baby get out. These assisted delivery techniques, though, can be dangerous to the child. If not done properly, doctors can cause trauma that ends with the child getting hurt in the doctor’s attempt to bring the delivery to its conclusion.
Avoiding these situations entirely is a priority, and doctors know to take special precautions to prevent the possibility of a birth injury from getting too high. However, not all doctors take these appropriate precautions. When they fail to react to clear signs of fetal distress, it can amount to medical malpractice.
This is what happened to one of Gilman & Bedigian’s recent clients. Doctors at the Johns Hopkins Hospital in Baltimore failed to take necessary steps to prevent a birth injury and the child was born with Cerebral Palsy. Lawyers at Gilman & Bedigian helped the victims recover a Maryland record $55 million verdict.
Birth Injuries Can Also Happen During Pregnancy
While birth injuries are more likely to happen during the delivery process, they can also happen while the mother is still pregnant.
Doctors can commit medical malpractice and cause a birth injury at this stage in the process if, for example, they prescribe pregnant women prescription drugs that could harm the fetus’ development. Whenever they prescribe these kinds of drugs to a female patient who could possibly be pregnant, doctors should check to make sure, first.
Examples of Birth Injuries
A birth injury includes a lot of different medical conditions. The only thing in common among them is the fact that the victim is a newborn.
Among the most common and severe birth injuries are:
- Bleeding in the baby’s brain, including intracranial or subconjunctival hemorrhages
- Erb’s Palsy
- Cerebral Palsy
- Facial paralysis, often caused by trauma during the delivery, which can prevent the newborn from closing their eyes or nursing
- Diabetic retinopathy
- Shoulder dystocia.
Additionally, any period of oxygen deprivation during the baby’s delivery can lead to a host of serious medical conditions and birth injuries. Oxygen is essential for the baby’s growth and development. Prolonged periods without oxygen can be devastating, leading to severe developmental delays and even perinatal asphyxia if the baby suffers a physical impairment from the deprivation.
Symptoms of Birth Injuries
There are a wide variety of symptoms that parents can use to tell if their child suffered a birth injury at the hands of a doctor’s poor conduct.
Some of the most obvious birth injury symptoms include:
- Dents or lumps in the baby’s head – a strong sign of a skull fracture
- Dislocated shoulders
- Breathing problems so severe that the child needs a breathing tube
- Broken bones
- Paralysis, even if just to the baby’s face or a limb
Other symptoms that can – but do not necessarily always – indicate a birth injury are:
- Eating problems
- Swallowing issues
- Strange or erratic eye movements
- Crying while arching its back
- Breathing problems, like constant coughing or wheezing
- Vision or hearing loss
When these symptoms are prevalent, parents may want to consider consulting a pediatrician who works independently of the hospital that delivered their child. With their professional help and insight, a proper diagnosis can be made.
Unfortunately, some birth injuries do not come with any symptoms for several months or even years. These are often neurological injuries that are caused by oxygen deprivation during the child’s delivery. They can leave a child with varying levels of brain damage that can prove to be an increasingly severe impairment over time.
The symptoms of these injuries are the developmental delays that the child suffers. While other children are growing and achieving developmental milestones as they should, children who have been hurt at birth can struggle to meet the growth stages set by doctors to gauge their development. When a child is consistently behind expectations and their peers, it can be a sign that they suffered a birth injury that is holding them back.
Causes of Birth Injuries
In Illinois, birth injury can be caused by genetics or by a doctor’s medical malpractice. Even when the ultimate cause is a newborn’s genetic makeup, though, a doctor can still commit malpractice if they fail to notify the parents of the potential for a birth defect.
A doctor’s medical malpractice can cause a birth injury. When it does, the doctor and his or her hospital can be held liable for the child’s injuries and the other losses that the newborn will face over the course of their life.
Malpractice tends to happen in the delivery room or the lead up to the child’s birth, often in one of the following situations:
- A negligently administered epidural shot
- A failure to notice signs of fetal distress
- Not taking the appropriate action when signs of difficulties are discovered
- A negligently performed Cesarean section
- An assisted delivery that involves too much force and ends up hurting the child
However, malpractice can also hurt a newborn well before their birth. Doctors can, for example:
- Physically hurt a fetus during an internal procedure during the mother’s pregnancy
- Prescribe medication to a mother that can affect the fetus
While relatively uncommon, defective medical equipment can also be the cause of a newborn child’s birth injury.
A product, like a medical device or a piece of medical gear that is used in the delivery room, can be defective in one of three ways:
The problem with products that have design defects is that they are needlessly dangerous for their intended purpose. In many cases, there is an alternative design that would have accomplished the same goal, and for the same production costs, as the design that was used.
Manufacturing defects are abnormalities in the production process that create individual products or medical devices that do not comport with the intended design.
Marketing defects in medical devices, on the other hand, fail to warn doctors about the hidden dangers of using the device or product, making it impossible for them to take proper care and protect their patients.
In addition to these three types of defects, medical equipment can also be defectively shipped or packed. If the equipment needs to be sterile, but a packaging defect contaminates the product, it can put the mother and her newborn child at a serious risk of suffering an infection.
In any of these situations, the ultimate culprit of the newborn’s birth injury is not the doctor’s medical malpractice, but the negligence of one of the companies behind the medical device that broke or was defective. Just because it was a medical device corporation and not the doctor, though, does not mean that victims cannot recover the compensation that they need and deserve after suffering a birth injury. It just means that it will take a products liability lawsuit against the negligent company to recover compensation, rather than a medical malpractice claim against the doctor and his or her hospital.
Malpractice from Failing to Notify Parents of a Genetic Defect
Even when the birth injury is technically caused by an abnormality or defect in the child’s genes, a doctor can still be held liable for malpractice in Illinois if they fail to detect the defect or do not notify the parents what is wrong.
Many genetic defects are easily detectable, even early in the pregnancy. If a doctor does not perform a genetic test, it can amount to medical malpractice because it prevents the parents from making an informed decision about their family.
Compensation for Birth Injuries in Illinois
Because these birth injuries happened through no fault of the child or his or her parents but were the result of a doctor’s poor decision making or negligent conduct, the victim and the victim’s family deserve to be compensated. In Illinois, victims can recover that compensation by filing a birth injury lawsuit. If successful, the compensation that they stand to recover would cover their financial losses from dealing with a debilitating birth injury, as well as their pain and suffering.
An important aspect of that compensation is that it does not just include the medical bills that have already accumulated. It would also cover the medical bills that are likely to accrue in the future as the victim continues to undergo treatment to overcome their birth injury.
Additionally, victims are entitled to compensation for the mental and emotional anguish that their birth injury causes them. This is included in the “pain and suffering” portion of compensation so often mentioned in personal injury claims and covers things like:
- Emotional distress;
- Negative feelings and loss of confidence from any disfigurements;
- Loss of life’s enjoyments; and
- Feeling of physical pain caused by the birth injury.
No Damage Caps in Illinois
Thankfully, in Illinois at least, victims of birth injuries can recover all of the compensation that they deserve because Illinois does not have a statute that expressly limits how much they can recover. Lots of other states have these statutes, which are supposed to be intended to protect hospitals from verdicts that are “too high” but in reality only leave victims undercompensated.
While Illinois does not have a damage capping statute, it is not for lack of trying. The Illinois State Legislature has twice passed statutes that would limit how much compensation a victim can recover in a medical malpractice case for their pain and suffering. Both statutes, however, have been declared unconstitutional by the Supreme Court of Illinois. The most recent case, Lebron v. Gottlieb Memorial Hospital, was decided in 2010 and invalidated a damage capping statute, 735 Illinois Compiled Statute 5/2-1706.5, which had limited victims to $500,000 in pain and suffering damages.
Wrongful Death Cases Involving Infants
When the medical malpractice that causes the child’s birth injury is especially severe, it can create a medical condition that proves to be fatal. There are three possible situations:
- The birth injury happens in utero and the child is stillborn
- The injury happens in utero and the child is born alive, but dies from the injuries soon afterwards
- The injury happens during delivery and the child dies after birth
Unlike many other states, in Illinois it does not matter which of these situations is at play or when the medical malpractice occurred to produce a birth injury. The parents of a child who has died from his or her birth injuries can file a wrongful death lawsuit against the negligent doctor and their medical institution to recover the compensation they deserve. This extensive right to file a wrongful death lawsuit on behalf of a deceased newborn is guaranteed by 740 Illinois Complied Statute 180/2.2. In most other states, the right of parents to file infant wrongful death cases comes from court decisions, rather than explicit statutes governing the issue.
This law makes the state of gestation of the unborn child irrelevant for determining whether the parents have a right to sue, making Illinois law more favorable to grieving parents than many other states, which require the unborn child to be viable at the time of the injury for there to be a right to file a wrongful death case.
The only exception to the law is if the doctor did not know the expectant mother was pregnant and had no medical reason to know of the pregnancy. While this exception can shield doctors from liability if they harm a fetus early in the pregnancy, the number of cases where it will apply will be rare.
Statute of Limitations for Birth Injury Claims
Birth injury lawsuits in Illinois have to abide by the state’s statute of limitations, which require lawsuits to be filed before a set period of time has passed. That time period depends on whether the child is filing the lawsuit or whether the parents are filing it on the child’s behalf.
If the parents are filing on the child’s behalf, 735 Illinois Compiled Statute 5/13-212(a) requires the claim to be filed within two years. However, subsection (b) of that statute gives children filing on their own until their eighth birthday to file.
Birth Injury Lawyers at Gilman & Bedigian Serve Victims in Illinois
If you or your child has suffered a birth injury, you may be entitled to compensation. The birth injury lawyers at Gilman & Bedigian can help. Contact us online to get started on your case.