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A birth injury is any medical condition that a newborn baby is born with. When that medical issue is the result of a doctor’s medical malpractice, the doctor and his or her medical institution can be held legally liable for the results of their negligence.
The birth injury lawyers at Gilman & Bedigian strive to legally represent victims in Kentucky and help them recover the compensation that they need and deserve to overcome the obstacles of being born with a serious medical condition through no fault of their own.
What Are Birth Injuries?
A birth injury is a medical condition that affects a newborn baby. When a child is born with a birth defect or a malady that will lead to developmental delays as they grow up, they suffer from a birth injury.
These injuries usually happen in the delivery room and are often the result of a doctor’s poor or negligent use of an extraction device during an assisted delivery. However, they can also happen well before the baby is being delivered, and even at the very early stages of the pregnancy.
Some examples of birth injuries include:
- Facial paralysis
- Shoulder dystocia
- Diabetic retinopathy
- Subconjunctival hemorrhaging
- Intracranial or subarachnoid hemorrhaging
- Cerebral Palsy
- Erb’s Palsy
- Perinatal asphyxia
- Oxygen deprivation
Each of these conditions can be relatively minor or incredibly debilitating. In some cases, they can even be life-threatening.
However, not all birth injuries are the result of a doctor’s negligence or malpractice. When they are, though, the doctor and his or her hospital should compensate the victim and the victim’s family for what they have been put through.
What are the Symptoms that My Child Has Suffered a Birth Injury?
Depending on the birth injury, there could be a variety of symptoms. Unfortunately, not all of them will become apparent in the immediate aftermath of the child’s birth. Additionally, some of the symptoms that do present themselves in the days after the birth will not be conclusive that a birth injury has occurred.
The most obvious symptoms of a birth injury are:
- A fractured skull
- Broken bones
- Facial paralysis
- Partial or total muscle paralysis, often in the arms or hands
- A dislocated shoulder
Other symptoms that suggest that a birth injury may have happened are:
- A subconjunctival hemorrhage in the baby’s eye, which indicates that the birth was especially traumatic for the child and that the pressure on their skull may have caused other problems, as well
- Breathing problems, including wheezing or constant coughing
- Eating problems
- Difficulty swallowing
- Excessive drooling
- Erratic eye movements, which can be a sign of seizures or a skull fracture
- Vomiting and nausea
- Chronic pain, which can be detected when the baby cries while arching its back
When the birth injury is neurological, though, the symptoms may not be apparent for years. When this is the case, the most telling symptom is a developmental delay.
Doctors and pediatricians have set goals that children should be reaching at certain ages. While most children struggle to meet one or a couple of these developmental milestones, if a child falls behind across the board it can be a sign that something else is holding back their growth. In some cases, this can be a birth injury that they suffered because of a doctor’s medical malpractice.
If you are suspicious that you child has suffered a birth injury, consulting a pediatrician who is independent of the hospital can be an essential step to take.
What Can Cause a Birth Injury?
A birth injury can be caused by either the child’s genetics, or by a negligent act or medical malpractice committed by a healthcare professional.
Contrary to popular belief, even birth injuries that are the result of genetics can lead to a malpractice lawsuit that can provide compensation for the victim and his or her family.
Genetics Can Cause a Birth Injury
One common cause of a birth injury or defect is a child’s genes. A genetic disorder can lead to a birth defect or serious medical condition that can alter the course of the child’s life.
However, many of these genetic disorders are detectable early in the pregnancy. Doctors who do not take reasonable measures to discover a genetic disorder can commit malpractice. Worse, doctors who do conduct genetic tests but then fail to notify the parents of a significant risk of a genetic issue can also commit malpractice. In both cases, the parents can be compensated in a lawsuit because they were deprived of the information needed to make an informed decision.
Medical Malpractice Can Directly or Indirectly Cause a Birth Injury
Even when genetics are not at play, a doctor’s medical malpractice can also be the cause of a child’s birth injuries. This can happen when:
- A doctor prescribes a woman prescription drugs that would harm the development of an unborn child without first making sure she was not pregnant
- A surgeon negligently performs a C-section
- Nursing staff neglect an expectant mother
- A doctor uses so much force during an assisted delivery that the child gets hurt
- Medical staff does not recognize sure signs of fetal distress, or does not react appropriately to indications that the child is being deprived of oxygen
Even if the doctor’s conduct does not directly cause the birth injury, if it sets in motion a chain of medical complications that ends with the child being hurt, it can still be malpractice.
Defective Medical Devices Can Also Cause Birth Injuries
While far less common than genetics or a doctor’s medical malpractice, defective medical devices, equipment, or gear can also cause a newborn baby’s birth injuries.
During the childbirth process, doctors use numerous medical devices. When the child is delivered through a Cesarean Section, even more devices are used. Some of the most common and well-known types of medical equipment that get used include:
- Protective equipment, like gloves, gowns, and masks
- Towels and sponges
- Syringes and drugs, like the Oxytocin and epidural to help with the mother’s pain and dilate her cervix
- Extraction devices, like a vacuum system or forceps
Any of these devices, though, can be defectively:
Design defects happen when the medical device was created in a way that needlessly put patients at risk of harm. Manufacturing defects are mistakes that are made during the production of the medical equipment that create a discrepancy between the design and the end product. If that discrepancy increases the risk of someone getting hurt – as it often does – it can lead to a lawsuit. Marketing defects are a failure to warn doctors of the dangers of using the device, thereby preventing the doctor from taking appropriate precautions and protecting their patient. Finally, packaging defects are unique to medical devices that need to be kept sterile. If they are negligently packed and shipped, they can become contaminated with bacteria and put patients at risk.
Any of these defects can lead to a products liability lawsuit. These claims aim to hold the company responsible for the defect accountable for the child’s birth injury, rather than the doctor who was merely the one wielding the defective device or implement. If successful, the company, rather than the doctor and hospital, would compensate the victim.
What Compensation is Available in a Birth Injury Case in Kentucky?
Victims who have been born with a birth injury are likely to have a drastically different life than peers who were not saddled with such a severe medical condition from the start. They are likely going to find themselves unable to compete in physical activities and may have intellectual disabilities that keep them from standing out. In the worst cases, birth injuries can leave victims bound to a wheelchair and reliant on daily support from family members.
Compensating all of these setbacks is the goal of medical malpractice law in Kentucky. By filing a birth injury lawsuit, victims and their families can demand financial compensation that would cover their:
- Medical bills
- Costs of medical expenses that are expected in the future for ongoing care, like follow up procedures, medication, specialized vocational training, or occupational therapy
- Specialized medical equipment, like a wheelchair and a vehicle for a disabled passenger
- Home improvements for any of the child’s physical disabilities
- Lost income or ability to earn a living, once the child becomes an adult
- Physical pain
- Mental anguish and suffering
- Loss of life’s enjoyments
- Emotional distress
- Loss of companionship and consortium felt by the victim’s family.
Unlike lots of other states – especially those in the south and Midwest – Kentucky does not limit the amount of compensation that victims can receive in a birth injury or medical malpractice lawsuit. Other states have statutes called damage caps that expressly limit what can be recovered, especially for pain and suffering. Kentucky, however, allows victims to receive what they actually deserve.
Infant Wrongful Death
Unfortunately, some birth injuries prove to be fatal. This most often happens when:
- The doctor’s negligence causes a traumatic injury during birth, like a fractured skull or a severe spinal cord injury
- The infant suffers hypoxia, or a complete loss of oxygen
- The infant’s blood flow is reduced or cut off, leading to affecting organs – often the brain – losing its supply of oxygen
Each of these conditions can be fatal. When they were caused by a doctor’s negligence or malpractice, it can lead to a wrongful death claim.
In Kentucky, Revised Statute § 411.130 is the law that gives the relatives of a person killed by the negligence of someone else the right to file a wrongful death lawsuit. While the statute does not define “person,” the courts in Kentucky have decided that viable fetuses are included since 1955. That case, Mitchell v. Couch, involved an expectant mother who died and lost her child in a car accident. The father filed a wrongful death lawsuit against the driver who caused the crash on behalf of his wife and unborn child, and the court allowed the case to move forward because the fetus was viable at the time of its injuries.
This means that timing is important. The fetus has to be viable at the time of its injuries for there to be a wrongful death lawsuit for the parents to file. For traumatic injuries suffered by the child at the moment of delivery, this will not be an issue. However, if the injuries happened in utero, the grieving parents may struggle to recover the compensation they deserve. If the injuries happened early on in the pregnancy, their wrongful death lawsuit may get quickly dismissed because the fetus was not viable, yet.
Statute of Limitations for Birth Injury Claims in Kentucky
However, Kentucky still has laws that dictate when a birth injury lawsuit can be filed. This law is an example of a statute of limitations that requires a claim to be filed before a set period of time has elapsed since the injury. If the statute of limitations is not followed and the lawsuit is filed after it has expired, the doctor and hospital being sued can have it dismissed with little effort.
In Kentucky, the applicable statute of limitations depends on whether the parents of the hurt child are filing the claim on the child’s behalf or not.
If the parents are filing on their child’s behalf, Kentucky Revised Statute § 413-140(1)(e) is the statute of limitations. It requires the claim to be filed within one year, making it one of the shortest in the country.
However, the start of that one-year statute of limitations gets tolled or delayed for children victims until they have reached the age of 18 by Kentucky Revised Statute § 413-170. This means victims of birth injuries who are filing a lawsuit on their own behalf – without being represented by their parents – usually have until their 19th birthday to file a birth injury claim.
An Example of a Birth Injury Claim: Gilman & Bedigian’s $55 Million Verdict
Birth injuries are complicated cases that are unlike many other types of lawsuits. This can make it difficult to understand how they work.
An example of a birth injury case was a recent lawsuit brought by the lawyers at Gilman & Bedigian in Maryland.
An expectant mother went to the Johns Hopkins Hospital in Baltimore to deliver a baby boy. Doctors, however, either did not recognize the strong signs of fetal distress or decided not to take appropriate action. Their negligence left the mother and baby without help for nearly two hours. By the time doctors at the hospital took action and delivered the baby via a C-section, the boy had been deprived of oxygen for so long that he had Cerebral Palsy and severe physical and mental impairments.
The doctors and the hospital insisted that they did nothing wrong, though, and refused to settle the lawsuit once it had been filed with the help of the lawyers at Gilman & Bedigian. They stuck to this denial throughout the case and it went all the way to trial.
After hearing all of the evidence, the jury awarded the victim and his family a $55 million verdict. The amount set a Maryland record for birth injury claims in the state.
Aggressive and Compassionate Birth Injury Lawyers in Kentucky
The birth injury lawyers at Gilman & Bedigian strive to legally represent victims in Kentucky. Contact them online if you or your child has been born with a medical condition and suspect medical malpractice to be the cause.