Massachusetts Birth Injury

In Massachusetts, a birth injury is a legal term for what happens when a newborn baby or an unborn fetus is hurt because a doctor or other healthcare professional committed medical malpractice. The consequences of a birth injury are often life long, and can even be fatal.

Recovering compensation is essential if the victim and his or her family want to live as close to a full life as possible. The birth injury lawyers at Gilman & Bedigian can help make that happen for victims in Massachusetts.

Different Kinds and Severities of Birth Injuries in Massachusetts

The term “birth injury” encapsulates all of the medical problems that newborn babies can go through. When a birth injury is the result of medical malpractice, someone else can be held liable for the setback.

However, numerous types of medical conditions can fall under this broad umbrella term. Some of them are minor setbacks that a child will hardly notice, growing up. Others, however, can be disastrous for their growth and will prevent them from living a full life. Some can even be fatal after only a few years.

Some of the most common and severe birth injuries are:

• Hypoxia, or a period of oxygen deprivation during the pregnancy or during birth that can lead to a host of other medical conditions, including severe developmental delays and perinatal asphyxia, if the deprivation impairs the child’s physical development
• Diabetic retinopathy
• Cerebral Palsy
• Erb’s Palsy
• Facial paralysis
• Brain bleeding, usually taking the form of either an intracranial hemorrhage or a subconjunctival hemorrhage
• Shoulder dystocia

Each one of these medical conditions can be severe or relatively mild. For example, some babies born with Cerebral Palsy can suffer physical abnormalities that will only become an obstacle if they want to play competitive sports, while others born with Cerebral Palsy may be bound to a specialized wheelchair for the rest of their lives.

What are the Symptoms?

There are a lot of different symptoms that can indicate that a child has suffered a birth injury. Some of them are fairly obvious signs that something went wrong during childbirth. Others, though, are less apparent, and can even take months or years to be seen, at all.

The most obvious symptoms of a birth injury are physical conditions that can be seen right after the child is born, like:

• Dislocated shoulder
• Broken bones
• Fractured skull
• Indentation or lumps on the child’s head
• Limp or weak limbs, which can be a sign of partial or total muscle paralysis
• Asymmetrical facial movements, a sign of facial paralysis
• Subconjunctival hemorrhaging in the baby’s eye
• Breathing problems severe enough that the baby needs a breathing tube

However, not all of the symptoms of a birth injury are so clear. Many birth injuries present themselves with symptoms that could be a sign of a different medical condition, or even nothing at all. These include:

• Excessive crying
• Crying with an arched back, a sign that the baby is in pain
• Nausea
• Vomiting
• Eating problems
• Constipation
• Coughing or wheezing
• Swallowing difficulties and drooling
• Hearing or vision loss

Especially when the birth injury is a neurological one, the symptoms may not even appear right after the child has been born. In these cases, the most reliable symptom is a developmental delay, where the child does not reach developmental milestones until weeks or months after they are supposed to reach them. While most children struggle with one or a couple of the tasks that doctors use to gauge their development, children who were born with a birth injury can fall behind their peers, across the board. This can be a strong sign that something went wrong and the child is being held back by an injury.

Many Birth Injuries Happen During the Pregnancy

Some birth injuries actually happen well before the baby is born. Doctors can commit medical malpractice by unreasonably putting an unborn fetus in harm’s way.

One way this can happen is by prescribing potentially dangerous drugs to a patient who may be pregnant. If those drugs pose a threat to a fetus, doctors should make sure the patient is not pregnant, first.

Most Birth Injuries are the Result of Malpractice During the Delivery

However, most birth injuries happen in the delivery room. This is where doctors have to make important decisions that can keep both the mother and the baby safe. If they make an unreasonable decision or create a situation that raises the odds of the baby being born with a birth injury, it can amount to malpractice and make them liable for the results.

Many birth injuries that happen during the delivery process come during traumatic births or after a difficult labor. Doctors who use extraction devices to assist in the delivery of the baby can wind up hurting the newborn, instead.

Genes and Malpractice Often the Ultimate Cause of Birth Injuries

The cause of a birth injury is usually either a doctor’s medical malpractice or the child’s genetic makeup. In either case, the doctor can be held liable for the results.

Medical malpractice is a common cause of a child’s birth injury. This can happen at any time, though it most often occurs during the baby’s delivery. Some of the most common examples of a doctor’s malpractice causing a birth injury include:

• Negligently performing a Cesarean section
• Deciding not to perform a Cesarean section when it is clear that one is needed to deliver the child
• Failing to notice clear signs of fetal distress that warrant a C-section
• Assisting in a difficult delivery and using so much force that the child is injured
• Neglecting the mother during labor
• Prescribing drugs to a woman that could damage a fetus’ development without first making sure that she was not pregnant
• Physically harming the developing fetus during an internal procedure

These negligent actions or omissions can directly cause a child’s birth injury. For example, a doctor’s negligent use of an extraction device can break a bone or damage nerves and cause facial paralysis.

However, they can also indirectly cause birth injuries, as well. Failing to notice signs of fetal distress may only directly lead to oxygen deprivation. That deprivation then causes numerous birth injuries, including developmental delays and even Cerebral Palsy. When malpractice indirectly causes a birth injury, it is still malpractice and the victims still deserve to be compensated.

Doctors can also cause a birth injury if they fail to run a genetic test or tell the parents that their unborn child has a birth defect. This can keep the parents from making an informed decision and can amount to malpractice.

Defective Medical Devices Can Also Cause Birth Injuries

Occasionally, the birth injury was caused in the delivery room, but not by the negligence of the doctors or the other healthcare professionals involved. Instead, the accident and the injury happened when one of the numerous medical devices used during childbirth broke, did not work properly, or was defective.

Medical devices can be defective in several different ways.

They can be defectively designed, resulting in an entire model of device that is needlessly dangerous or ineffective. While design defects are relatively rare, when they do happen they are devastating because potentially thousands of people get hurt.

Medical devices can be defectively manufactured, resulting in individual devices that do not comport with the original and intended design. When a manufacturing error creates a defect in a medical device, it can pose a threat to patients, especially as doctors do not expect it and do not always double check their equipment before using it.

Perhaps the most common defect is what is confusingly known as an “advertising defect.” These happen when the makers of a medical device fail to warn doctors of the hidden risks of using the device during normal practice. Without this knowledge, doctors cannot take appropriate precautions to make sure their patients are safe.

Finally, medical devices can be defective in a way that many other products cannot: Defective packing and shipping. Many medical devices need to be sterile when they are used in the hospital. If they are sterilized before they are shipped, but get contaminated on the way, they can pose a risk of infection when they are used.

If any of these defects ends up causing a birth injury, the young victim and his or her parents can fight for compensation by filing a products liability lawsuit against the negligent company that caused the defect.

An Example of a Birth Injury and a $55 Million Verdict

The birth injury lawyers at Gilman & Bedigian recently represented a boy who was born with a birth injury and his family. The mother went to the Johns Hopkins Hospital in Baltimore to give birth. While there, though, the doctors ignored clear signs of fetal distress. It took them two hours to perform a C-section. By then, the boy had been deprived of oxygen for so long that he was born with mental and physical conditions as well as Cerebral Palsy.

With the help of the lawyers at Gilman & Bedigian, the boy and his family filed a lawsuit against the doctors and Johns Hopkins Hospital. The case went all the way through trial because the hospital refused to settle and insisted that it did nothing wrong. The jury, however, returned a $55 million verdict for the child and his family, a record-setting amount for a birth injury case in Maryland.

Massachusetts Provides Compensation for Birth Injury Victims

Birth injuries that happen in Massachusetts can be compensated by the doctor whose malpractice caused the injury and by the hospital that employs that doctor. However, it often takes a birth injury lawsuit to hold them accountable.

That birth injury lawsuit demands that the doctor and the medical institution that caused the birth injury to pay compensation to the victim and their family. That compensation should cover:

• Medical bills that have already been paid or invoiced
• The costs of reasonably anticipated future medical bills to treat the birth injury
• Compensation for the physical pain and suffering that the child has had to deal with
• Compensation for the mental anguish suffered by the child, often from the loss of life’s enjoyments that come with living with a disabling and often disfiguring birth injury
• The reduced earning capacity of the child, as their birth injury prevents them from living a rewarding professional life
• Loss of consortium for the family, which is meant to cover the anguish that they will feel as they watch their child live with a serious medical condition

Wrongful Death Cases Involving Infants

When a birth injury proves to be fatal, the parents of the victim can file a wrongful death lawsuit on behalf of their child against the negligent doctor and the medical institution where they work. If successful, this lawsuit can get the grieving parents the compensation that they deserve and hold the negligent doctor accountable for their conduct.

In Massachusetts, wrongful death cases are governed by Massachusetts General Law Chapter 229, § 2. This holds accountable anyone who negligently causes the death of another person. However, the statute does not define who is a “person.”

That question went to the Supreme Judicial Court of Massachusetts back in 1975 in the case Mone v. Greyhound Lines, Inc. In that case, the court decided that an unborn fetus is a “person” under the wrongful death statute, so long as the fetus was viable at the time of his or her injuries.

This means parents of children who have died from their birth injuries can recover compensation on their child’s behalf if:

• The child was born alive, but died from their injuries soon after birth, or
• The child was stillborn due to injuries sustained after they could have lived outside of the mother’s womb

When the birth injury happened before the child was viable, though, the parents are left unable to file a lawsuit.

In the medical malpractice context, though, many of these cases happen at the very end of the pregnancy or during the delivery. Common birth injuries that can be fatal include:

• A traumatic injury during the delivery, like a spinal cord injury
• Complete and uncorrected oxygen deprivation, also known as hypoxia
• Reduced or completely cut off blood flow to an essential organ, often the brain

A “Soft” Damage Cap in Massachusetts

Massachusetts, however, does have a statute that limits, or “caps” the amount of compensation that victims of medical malpractice can recover for their pain and suffering. Massachusetts General Law Chapter 231 § 60H caps pain and suffering damages at $500,000. However, this cap does not apply if the jury finds that the malpractice caused any of the following:

• Substantial disfigurement
• Substantial loss or impairment of a bodily function
• Permanent loss or impairment of a bodily function

Massachusetts’ Statute of Limitations for Birth Injuries

In Massachusetts, there are two laws that force victims of birth injuries to file their lawsuit within a certain amount of time.

• The first is Massachusetts General Law Chapter 260 § 4. This law requires that all medical malpractice lawsuits brought on behalf of a minor child be filed within three years.
• The second is Massachusetts General Law Chapter 231 § 60D, which creates an exception for birth injury lawsuits filed by the children, themselves. They have up to seven years to file their claims.

Birth Injury Lawyers at Gilman & Bedigian Serve Massachusetts

If you or your child has been born with a birth injury and suspect that it was caused by a doctor’s malpractice, reach out to the birth injury lawyers at Gilman & Bedigian by contacting us online.