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Among the most severe incidents of medical malpractice is when a doctor’s negligence or poor decision-making end up injuring a newborn child. These birth injuries leave an innocent baby with serious medical problems that will be an obstacle for the rest of their life. In many cases, they will prevent the child from doing what they want to do as they grow up, and can even prevent them from living an independent life.
The birth injury attorneys at Gilman & Bedigian strive to legally represent victims of birth injuries and their families in Montana and help them recover the compensation they need and deserve.
How Do Birth Injuries Happen: An Example from a Case That Ended With a $55 Million Verdict
Medical malpractice and birth injury cases can be difficult to understand in the abstract. Examples can help people understand how they happen and how the legal system provides a way for victims to recover compensation and hold the wrongdoers accountable for their poor conduct.
A recent case handled by the lawyers at Gilman & Bedigian encapsulates how birth injuries can happen and how a lawsuit can help the victims.
In that case, a mother went to the Johns Hopkins Hospital in Baltimore, Maryland. While there were clear signs of fetal distress that should have pushed doctors into immediate action, nothing was done for nearly two hours. During that time, the baby was being deprived of oxygen. When the doctors finally performed a C-section to deliver the child, he had lost so much oxygen that he was born with Cerebral Palsy and other abnormalities.
The parents hired the lawyers at Gilman & Bedigian to hold the hospital and its doctors accountable, but they were met with stiff resistance – the doctors insisted that they did nothing wrong and the hospital refused to settle the case and provide the compensation that the victim and his family deserved. The case went all the way through trial, and it took a jury’s verdict to force the hospital to compensate the victim and his family. That verdict was for $55 million, a record-setting verdict for a birth injury in Maryland, and aimed to cover for all of the setbacks and losses that the victim and his family would experience from the doctor’s poor conduct.
Common Types of Birth Injuries
While the boy in the case against Johns Hopkins Hospital suffered Cerebral Palsy as a result of the doctors’ negligence and malpractice, there are numerous other types of birth injuries that children and unborn babies can suffer. Some of the most common include:
- Cerebral Palsy
- Erb’s Palsy, or nerve damage in the baby’s neck
- Shoulder dystocia, which is a birth complication where the baby’s shoulder gets caught in the birth canal and cuts off its supply of oxygen through the umbilical cord
- Broken blood vessels in the baby’s eyes (a subconjunctival hemorrhage) or in the baby’s brain (a subarachnoid or intracranial hemorrhage)
- Diabetic retinopathy, which can lead to the baby losing his or her eyesight
- Facial paralysis
- Oxygen deprivation, which can lead to brain damage, developmental delays, and perinatal asphyxia if the damage compromises the baby’s muscles and tissues
Some of these injuries happen in the delivery room. For example, Erb’s Palsy is often the result of a doctor’s use of forceps or other extraction devices to assist in the baby’s delivery. If done too forcefully, these assisted delivery techniques can cause serious and even irreparable harm to the newborn.
However, some birth injuries can also happen during pregnancy, sometimes even before the mother is aware that she is carrying a child. If a doctor prescribes a medication that could harm a fetus without first checking to make sure the patient is not pregnant, it can cause serious damage to the development of the fetus and can amount to medical malpractice. In some other cases, a doctor can hurt the fetus during a routine checkup if they are not careful.
Symptoms of a Birth Injury
Some of the most severe birth injuries that a child can suffer have very few symptoms right after birth. These birth injuries affect the child’s neurological development, and can cause a child to grow and master certain basic skills more slowly than his or her peers. In these cases, the most prevalent and reliable symptoms are the child’s developmental delays, which are indicated by the child’s consistent inability to perform certain tasks or growth milestones at the age that doctors would have expected.
Unfortunately, these developmental delays can take several months to become apparent.
Other birth injuries come with symptoms that are easier and quicker to see. These are often physical conditions that the child has suffered right after birth, like:
- Bruising or swelling
- Fractured skull, often discovered from lumps or dents in the baby’s head
- Fractured collarbone
- Dislocated shoulder
- Paralyzed muscles
- Breathing problems so severe that the child needs a breathing tube
- Broken bones
Other symptoms of a birth injury are also immediate, but far less apparent. Even parents who know what they are looking for might not appreciate their significance. They include:
- Constant coughing or wheezing
- Eating problems, like swallowing difficulties or excessive drooling
- Constipation, nausea, lack of appetite, or vomiting
- Sensory problems like poor hearing or loss of vision
- Inconsolable crying, especially if the baby is crying while arching its back
- Strange eye movements, which can be a sign of seizures
These symptoms, however, are not always a sign that the child has suffered a birth injury. They could be a symptom of a completely different medical condition, or even none at all. A pediatrician can help figure out what is going on. Seeing one that has no affiliation to the hospital that helped deliver the baby can ensure you get an unbiased medical opinion.
Causes of Birth Injuries
Most of these birth injuries can be caused by either:
- A healthcare provider’s medical malpractice, or
- The baby’s genetics
Medical Malpractice Leads to Liability
When a birth injury was caused by someone’s medical malpractice, the victims can pursue compensation by holding the negligent party and their hospital liable.
Malpractice can cause a birth injury whenever a doctor or other medical worker does something negligently or mistakenly, which can happen at any time during the pregnancy or the child’s delivery. Some of the most common situations include:
- Negligently performing a C-section and hurting the baby
- Using too much force during an assisted delivery
- Failing to notice signs of fetal distress that could harm the baby if action is not taken immediately
- Prescribing a pregnant woman drugs that could harm her child’s development, in utero
However, mistakes and negligent actions can happen in hundreds of other ways, too.
Not Notifying Parents About Genetic Problems Can Be Malpractice
Other birth injuries are the result of genetics. These injuries are especially difficult to deal with because they are a result of bad luck and do not always lead to a healthcare professional’s liability, a lawsuit, and recovering compensation.
However, there is one circumstance where a birth injury caused by a genetic defect can amount to medical malpractice: When a doctor fails to detect an easily discoverable genetic problem or does not inform the parents of its existence.
Many genetic abnormalities can be detected early in the pregnancy, often through a simple genetic test. When a doctor does not take reasonable steps to conduct one of these tests, they will not find the problem and will deprive the parents of the information they need to make an informed decision about their family. This can amount to malpractice in Montana.
Defective Medical Products
A less common cause of birth injuries – but one that does happen from time to time in Montana – is a defective medical device.
During a childbirth procedure, doctors use numerous medical devices. Most of them are simple and often disposable, like towels, sheets, syringes, and protective gear like masks, gowns, and gloves. Some of the devices used, though, are incredibly complicated, like epidural shots, extraction devices, and drugs like Oxytocin.
Medical devices like these can be defective in four ways:
Defectively designed medical devices are those that are made with an inherent and unnecessary risk. Manufacturing defects create risks in well-designed medical devices through a negligent manufacturing process. Unlike design defects, manufacturing defects do not plague the entire model of the medical device – instead, it only appears in a few particular devices.
Advertising defects are likely the most common in the medical field. These are not problems with how the device is advertised to the public, but rather with how well the device’s instruction manual warns the doctors who will use it of the risks it can pose. If the product fails to warn doctors of a serious but not quite apparent risk of use, it can keep the doctor from taking appropriate action to protect his or her patient. This can lead to a serious birth injury.
Finally, shipping defects are unique to the medical field. If a medical device has to be sterile in the delivery room, but was contaminated with harmful bacteria because of a packing defect, it can cause an infection and a birth injury.
When medical devices are defective and the child suffers a birth injury, there was often very little that the doctors could have done to prevent it. Because it was the company that produced a defective instrument, they should be held accountable. A products liability lawsuit can do just that.
Compensation for Montana Birth Injury Victims
Victims in Montana can pursue compensation by filing a medical malpractice claim against the doctor and his or her medical institution. A malpractice claim can not only recover the compensation that the victims deserve; it can also hold the facility and the doctor accountable and force them to take better care in the future.
The compensation that can be recovered in a birth injury claim falls into two categories:
- Economic damages; and
- Noneconomic damages.
Economic damages are those that are easily distilled into a dollar amount. They include the following types of compensation:
- Medical bills
- Estimated medical expenses in the future
- The reduction in income that the injured child is likely to experience once they grow up
Noneconomic damages are those that cannot be easily distilled in a dollar amount. They include losses felt both by the birth injury victim as well as his or her family members, like:
- Physical pain
- Mental suffering
- Emotional distress
- Loss of consortium and companionship
- Loss of life’s enjoyments
These classifications matter in Montana because Montana has a state statute that limits how much compensation a birth injury claim can recover for noneconomic damages. That statute, Montana Code Annotated § 25-9-411, prohibits victims from recovering more than $250,000 in noneconomic damages in any type of medical malpractice claim – including birth injury lawsuits – no matter how much they deserve.
Wrongful Death Cases for Birth Injuries
All birth injuries are serious, but some can be life-threatening and even fatal. This can happen when:
- The newborn is completely deprived of oxygen for a long period of time
- Reduced blood flow keeps oxygen from essential organs
- The doctor’s malpractice causes traumatic injuries during the child’s delivery
Complete oxygen deprivation, called hypoxia, can severely damage the tissues and organs that rely on a steady supply of oxygen to function and develop, especially in the baby’s early days. If the child is unable to breath for an extended period of time during their delivery, hypoxia can set in and cause muscle or tissue damage, including a fatal amount of brain damage. That damage can also result from a loss of blood circulation to the brain. If the umbilical cord wraps tightly around the baby’s neck, for example, it can prevent the oxygen-rich blood from reaching the brain where it is necessary.
If any of these injuries results in the newborn dying, the parents can file a wrongful death lawsuit against the doctor and his or her hospital, claiming that medical malpractice caused the death of their child. In Montana, Montana Code Annotated § 27-1-513 is the statute that states that these lawsuits can be brought whenever one person is negligently killed by another.
Importantly, § 27-1-513 was changed in 1987 by the Montana legislature. Those changes tweaked the language in the wrongful death statute and in the previous law, § 27-1-512, which lets parents sue on behalf of their injured child. In the 1994 case Strzelczyk v. Jett, the Supreme Court of Montana decided that those changes expanded the scope of the law to include a stillborn fetus. While the fetus at issue in Strzelczyk was viable, it is unclear from the court’s decision if a stillborn fetus has to be able to survive outside the mother’s womb for a wrongful death case to be filed in its behalf.
Montana’s Statute of Limitations for Birth Injury Claims
Montana also has a statute of limitations for birth injury lawsuits that can pose an obstacle for victims. Under Montana Code Annotated § 27-2-205, if a birth injury lawsuit is not brought within two years, it will be dismissed.
However, there is an exception to this rule. If the parents of the child victim do not act as the child’s legal representatives, then the child has until his or her 10th birthday to file the lawsuit.
Birth Injury Lawyers at Gilman & Bedigian Serve Victims in Montana
The birth injury lawyers at Gilman & Bedigian strive to legally represent birth injury victims and their families in the state of Montana. Contact us online to get started on your case today.