A doctor can commit medical malpractice while an expectant mother is pregnant or while she is delivering her baby and hurt the newborn. When this happens, the birth injury that it causes can leave the child with serious medical conditions that can prevent him or her from living a full life. Both the parents and the child deserve compensation.
In Nebraska, that compensation can be obtained by filing a birth injury lawsuit. The attorneys at Gilman & Bedigian can help.
What is a Birth Injury?
A birth injury is any medical condition that the child is born with. It can range from relatively minor to severe or even life-threatening. While the birth injury can be inflicted at any point during the mother's pregnancy, they tend to happen in the delivery room. When it happens because of a doctor's poor decision, their inaction, or their negligence, it can amount to medical malpractice.
How Can Birth Injuries Happen During Pregnancy?
Occasionally, birth injuries are the result of a doctor's malpractice while the mother is still pregnant. This can happen even before the mother is aware that she is pregnant. Many of these cases happen because a doctor:
- Prescribed a female patient medication that poses a threat to a fetus without ensuring that she was not pregnant first;
- Hurt a fetus during an internal procedure; or
- Failed to diagnose a genetic disease.
In some of these cases, the fetus is damaged in a way that will prevent it from developing fully before birth, leaving it with serious birth defects. In other cases, malpractice can prevent potential parents from making an informed decision about their family and their future.
How Do Birth Injuries Happen in the Delivery Room?
Most birth injuries, though, happen in the delivery room as the baby is being born. These are often the result of the doctor's:
- Negligent actions,
- Negligent inactions, or
- Poor decision making.
A doctor can commit medical malpractice and cause a birth injury through their negligent actions if, for example, they use an extraction device in an attempt to assist in the delivery, but end up hurting the baby by using too much force.
Negligent inaction can also be the cause of a doctor's medical malpractice and a child's birth injury. Doctors need to act appropriately to signs of fetal distress and take action to ensure everyone makes it through a potentially dangerous delivery in good condition. If they fail to act appropriately and it causes a birth injury, it can amount to medical malpractice.
Similarly, doctors can be held liable if they make a poor decision that puts a mother and her child in harm's way, rather than keeping them safe.
What Are Some Examples of Birth Injuries?
Birth injuries can take a variety of forms. Some of the most common include:
- Cerebral Palsy
- Erb's Palsy
- Subconjunctival hemorrhaging or intracranial or subarachnoid hemorrhaging
- Facial paralysis
- Diabetic retinopathy
- Shoulder dystocia
- Oxygen deprivation
- Perinatal asphyxia
Each of these conditions can come with a host of medical complications, as well as developmental delays that can set a child back years behind his or her peers.
What Symptoms Should I Look For?
Parents can tell if their child has suffered a birth injury by looking some of the following symptoms:
- Broken bones
- Fractured collarbone
- Dislocated shoulder
- Fractured skull
- Dents or bumps in the child's head, either of which could indicate a fractured skull
- Severe breathing problems right after birth
- Asymmetrical facial movements, a sign of facial paralysis
- Limp or weak limbs, a sign of partial or total muscle paralysis or nerve damage
Unfortunately, many birth injuries come with symptoms that are far less evident. In some cases, even knowledgeable parents may fail to see the symptoms of a birth injury, which can include:
- Bruising or swelling
- A subconjunctival hemorrhage, or a blood-red spot in the baby's eye, which can indicate that extreme amounts of pressure were exerted on the baby's skull during the delivery and could have caused other problems
- Eating problems, including nausea, vomiting, or constipation
- Swallowing problems or excessive drooling
- Strange eye movements, which could indicate a seizure or skull fracture
- Chronic pain, often detected by the child crying uncontrollably while arching his or her back
- Breathing problems, like wheezing or constant coughing
Neurological birth injuries, however, can have delayed symptoms that come in the form of missed growth milestones. Doctors expect children to be able to walk, talk, eat, and sit up at certain ages. While children often struggle with a few of these tasks as they grow up, those who have a birth injury would have an extra obstacle to overcome and would likely fall behind across the board. These developmental delays can be the most reliable symptom of a neurological birth injury, but would not appear until months or even years have passed since the child was born.
What Causes a Birth Injury?
These birth injuries can be caused by a doctor's medical malpractice or by the child's genetic makeup.
Malpractice: The Direct or Indirect Cause of the Birth Injury
Malpractice can lead to a birth injury in a huge number of ways, and can happen in the delivery room or earlier during the mother's pregnancy. When it does happen, though, medical malpractice can either be the direct cause of a birth injury or an indirect cause.
Medical malpractice can directly cause a birth injury when the doctor's actions or inactions are immediately connected to the birth injury:
- Excessive force used during an assisted delivery pinches the nerves in a baby's face and neck, causing facial paralysis
- Not monitoring the health of the mother and her unborn child means that developmental issues go undetected and the child is born with Cerebral Palsy
Other instances of malpractice indirectly cause the birth injury if there is an intervening medical complication:
- A doctor ignores strong signs of fetal distress, leading to the unborn child being deprived of oxygen for a prolonged period of time, which causes brain damage
- A doctor prescribes a mother medication that raises her blood pressure, which then causes developmental delays in the fetus
In either case, the malpractice will have caused the birth injury.
Failing to Inform Parents of a Genetic Problem
Genes can also cause a birth injury. However, many genetic defects can be detected early in the pregnancy. If a doctor could have detected one, but failed to do so, it can amount to medical malpractice because it prevents the parents from making an informed decision. It can also be malpractice to know the risks of a genetic defect but not pass the information on to the parents.
Defective Medical Equipment
Defective medical equipment can also cause a birth injury. While these cases are relatively rare in Nebraska, they do still happen. When they do, the victims can pursue compensation through a products liability lawsuit, rather than one for medical malpractice.
Medical professional use numerous devices during a delivery procedure. Everything they use, though, from protective equipment to extraction devices to the drugs they use to help with the labor, can be defective. Those defects can come in several different forms:
- Advertising, for failing to warn
- Packing and shipping
Design defects are problems with how the medical device is supposed to be. If the designs did not account for a particular risk that could easily have been mitigated or avoided, they could be deemed defective. Manufacturing defects, on the other hand, take a well-designed product but negligently produce it, leading to nonconformities that pose a threat to patients.
Advertising defects are issues with the product's instruction manual. If they fail to warn doctors of the risks of using the device, doctors can accidentally misuse the instrument or fail to take the necessary steps to avoid a serious birth injury.
Packing and shipping defects can contaminate a medical device that is supposed to arrive at the hospital in a sterile condition. Unsterilized equipment poses a serious risk of infection for the patients, especially during the delivery of a child. Unfortunately, it is almost impossible to tell if a piece of medical equipment has gotten contaminated before the infection sets in.
The common theme in all of these situations is that the doctor is almost powerless to stop a birth injury from happening. The company that negligently allowed the defect should be held accountable. A successful products liability lawsuit can force them to compensate the victims.
Wrongful Death Cases
Some of these birth injuries end up being fatal for the newborn or the unborn child. Some commonly fatal birth injuries that children can suffer include:
- Traumatic injuries, including skull fractures or spinal cord injuries
- Reduced blood flow or circulation problems
- Hypoxia, or complete oxygen deprivation
Some physical injuries can be fatal if they break bones and compromise certain necessary organs, like the lungs, heart, or brain. Spinal cord injuries can also be fatal if the nerve damage that they cause is severe enough. These injuries occur most often during an assisted delivery.
Both hypoxia and blood flow problems can be fatal for the same reason: Both conditions keep oxygen from getting to the tissues and organs that need a steady flow to continue to function. The difference between the two conditions is that hypoxia happens when the newborn is unable to breathe, while circulation problems prevent the oxygen that is being inhaled from flowing through the bloodstream to some tissues. For example, if the umbilical cord has wrapped itself around the baby's neck and is preventing the baby from breathing, it can lead to hypoxia. If it wraps around the neck and cuts off circulation to the baby's brain, the reduced blood flow can still be fatal, even though it only impacts the baby's brain.
Regardless of the medical condition caused by the doctor's medical malpractice, parents who have lost newborn children in Nebraska can file a wrongful death lawsuit against the negligent doctor and their medical institution under Nebraska Revised Statute 30-809. Nebraska is one of only about a dozen states that have wrongful death statutes that expressly cover infant wrongful death cases. In Nebraska, parents can file a lawsuit on behalf of their deceased newborn, no matter what stage the fetus was in at the time of the injuries. Even if the fetus was not viable, parents can still recover compensation.
A $55 Million Verdict and an Example of a Birth Injury Case
How birth injuries can happen and how severe they can become is exemplified in a case that the lawyers at Gilman & Bedigian brought to trial recently in Maryland.
In that case, doctors at the Johns Hopkins Hospital in Baltimore failed to react appropriately at strong signs that the fetus was in distress. Rather than perform a C-section to deliver the baby immediately, they waited for two hours before doing it. By then, the baby boy had been deprived of oxygen for so long that he was born with Cerebral Palsy and other developmental issues.
Gilman & Bedigian helped the victim and his family file a birth injury lawsuit and the case went to trial. In the end, the jury awarded the victim a $55 million verdict, setting a Maryland record for birth injury cases.
Compensation in Nebraska
When a birth injury happens in Nebraska, the victim and his or her family can pursue compensation by filing a birth injury lawsuit. This lawsuit, a type of medical malpractice claim, demands financial compensation from the doctor and their medical institution to cover their:
- Medical bills
- Future medical expenses
- Reduced earning capacity
- Pain and suffering
- Loss of life's enjoyments.
When the parents of a birth injury victim file the claim on their hurt child's behalf, it can also demand compensation for the parent's loss of companionship.
However, Nebraska is one of the states in the U.S. that has passed a damage cap statute. This statute is a law that limits the amount of compensation that victims can recover in a medical malpractice lawsuit, including a birth injury claim. Nebraska Revised Statute § 44-2825 limits the amount recoverable in these claims to:
- $1.25 million, if the malpractice happened in 2003 or earlier;
- $1.75 million, if the malpractice happened between 2004 and 2014; and
- $2.25 million, if the malpractice happened in 2015 or later.
For birth injury claims where the child will never live their life to the fullest and is in a constant state of suffering, this damage cap can be especially unfair.
Statute of Limitations for Birth Injury Claims in Nebraska
Birth injury claims in Nebraska also have to follow the state's statute of limitations, which requires victims to file their lawsuit before a set period of time has passed. Under Nebraska Revised Statute § 25-222, these claims typically have to be filed within two years of the injury.
Importantly, Nebraska is unlike many other states in that it does not toll, or delay, the beginning of the statute of limitations when the victim is a child. Injured children still have only two years to file their legal claim for compensation.
Gilman & Bedigian: Birth Injury Lawyers Serving Victims in Nebraska
If your child was born with a birth injury in Nebraska and you suspect medical malpractice was to blame, reach out to the lawyers at Gilman & Bedigian by contacting us online.