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Newborn babies can suffer a birth injury if a doctor commits medical malpractice while the mother is still pregnant when the baby is being delivered. While there are a lot of different kinds of birth injuries that a child can suffer, many of them are extremely debilitating and can be difficult for the child to overcome as they grow up.
The lawyers at Gilman & Bedigian can provide birth injury victims in New Hampshire the legal representation they need to recover the compensation that they deserve after suffering such a terrible setback.
How Can a Birth Injury Lawsuit Help Victims in New Hampshire?
Children who have been born with a birth injury are going to have obstacles in their way that other children would never have to overcome. Those obstacles are going to cause lots of physical and emotional suffering, which is made worse by the fact that the victim is a child.
They are also going to be extremely costly, with potentially hundreds of thousands of dollars of medical expenses over the course of the injured child’s life.
When the birth injury was caused by a doctor’s negligence, there is no reason why the child or their family should have to pay for it. By filing a birth injury lawsuit, victims can demand that the doctor and his or her hospital pay for what they have done. If successful, the lawsuit can recover financial compensation for the hurt child’s:
- Past medical care
- Future medical expenses associated with the birth injury
- Reduced ability to earn a living, due to the injury
- Physical pain
- Emotional distress
- Mental suffering and anguish
- Loss of life’s enjoyments.
Additionally, the parents of the hurt child can recover compensation for their:
- Loss of companionship and consortium; and
- Expenses associated with altering their home or vehicle to fit their child’s needs.
No Damage Caps in New Hampshire
While many other states have passed laws that keep victims of medical malpractice from recovering more than a certain amount of compensation in a lawsuit, New Hampshire is not one of them. In fact, these damage capping statutes have been deemed unconstitutional in the state. As early as 1980 in the case of Carson v. Maurer, the Supreme Court of New Hampshire ruled that damage caps in the state for medical malpractice claims violated the equal protection clause of the state’s constitution.
New Hampshire’s Statute of Limitations for Birth Injury Claims
Lawsuits for compensation for a birth injury, though, have to abide by the state’s statute of limitations. In New Hampshire, that statute of limitations is New Hampshire Revised Statute Annotated § 508:4, which forces adults filing the lawsuit on behalf of their injured children to initiate the claim within three years.
However, if the child is suing on his or her own behalf and without the legal representation of their parents, the statute of limitations gets tolled, or delayed, under New Hampshire Revised Statute Annotated § 508:8. Under this tolling statute, victims have until their 20th birthday to file their claim.
How Can a Doctor’s Malpractice Cause a Birth Injury?
Many birth injuries are caused by a doctor’s medical malpractice. When this happens, the victim and his or her family deserve to be compensated by the doctor and their medical institution. After all, there was nothing that the newborn could have done to prevent their injury.
Most of the birth injuries caused by a doctor’s malpractice happen in the delivery room. There, a doctor or other healthcare professional can act negligently in a huge variety of ways, like:
- Poorly administering an epidural
- Not noticing signs of fetal distress during the labor that warrant prompt action
- Making a mistake during a C-section surgery
- Using too much force during an assisted delivery
Other incidents of malpractice happen earlier in the mother’s pregnancy. These can also harm a fetus and lead to a birth injury if:
- A surgeon directly hurts the fetus during an internal procedure on the mother
- A doctor prescribes the mother drugs that would harm the fetus’ development
Many birth injuries are the direct result of these negligent acts. Some, however, are indirect results, like when a doctor’s negligence creates a medical complication that then causes the birth injury. In either case, the doctor can be held liable for the foreseeable results of their poor conduct.
Not Informing Parents of a Genetic Defect Can Amount to Malpractice
Not all birth injuries are the result of a doctor’s malpractice. In some cases, the child has a genetic abnormality that will likely lead to a birth injury or defect.
Even though the injury was not caused by a doctor’s malpractice, it may still amount to medical malpractice if the doctor does not alert the parents to the likelihood of a birth defect. Many genetic problems are easily detected early in the pregnancy. Not doing so can deprive the parents of the ability to make an informed decision and lead to liability.
How Can a Defective Medical Device Cause a Birth Injury?
Medical devices can also be the cause of a birth injury if they are defective or if they break during the childbirth process.
All products, including medical devices, can be defective in three ways:
Design defects lead to dangerous products that come with needless risk to those who use them. For medical devices, defectively designed products can cause serious harm to patient because their makers overlooked a risk factor or deliberately cut corners to make the device more profitable.
Manufacturing defects are mistakes that happen while putting together or assembling the product. While these defects typically only affect a few particular products rather than the entire model, this can actually make them more difficult to detect.
Advertising defects are problems with the product’s safety instructions. If a medical device fails to warn a doctor of the risks of using the instrument in its intended way, the doctor could end up hurting his or her patient.
In addition to these three types of product defects, medical devices that need to be sterile can also suffer from a packing and shipping defect. These defects can lead to the device getting contaminated with bacteria between its manufacture and its eventual use in a hospital. This can end with the mother or the newborn child suffering a severe infection that causes a birth injury.
When a medical device is defective, the doctor who used it is often blameless, as there was little that they could have done to prevent the problem. Instead, the fault lies with the company that negligently produced the device. A products liability lawsuit can hold them accountable for the foreseeable results of their poor conduct, and can recover the compensation that the victims of the birth injury deserve.
Types of Birth Injuries
Not all birth injuries are the same: The term birth injury only refers to the fact that the victim is a child and that the injury may have been caused by a doctor’s malpractice. There are a whole host of medical conditions that can fall under the realm of a birth injury. Some of the most common and severe include:
- Shoulder dystocia, a birth complication that can deprive the newborn of oxygen
- Erb’s Palsy, which is often the result of a traumatic birth or the negligent use of an extraction device. It sometimes follows shoulder dystocia if doctors use too much force assisting in the difficult delivery
- Diabetic retinopathy, which is a complication of the mother’s diabetes that can cost the child their ability to see
- Facial paralysis
- Broken blood vessels, which can be caused by a traumatic birth, in either the child’s eyes (a subconjunctival hemorrhage) or brain (either an intracranial or subarachnoid hemorrhage)
- Cerebral Palsy, which can affect the child’s motor skills and development
- Oxygen deprivation, which can lead to brain damage, developmental delays, or perinatal asphyxia
Each one of these injuries can be minor, moderate, or severe. For example, if a child is deprived of oxygen for only a short period of time during their delivery, they may hardly be affected at all. However, if they lose their oxygen supply for several minutes, the results may be a lifelong debilitation.
What are the Symptoms?
Different birth injuries will trigger different symptoms. Some of the most apparent symptoms can be seen by even unwary parents who do not know what to look for. These symptoms include:
- Broken bones
- Lumps or dents in the child’s head – a strong sign of a skull fracture
- Seizures, which can also be a symptom of a fractured skull
- Paralyzed or partially paralyzed muscles, often in the face or arms
- A broken or dislocated shoulder or collarbone
- Severe breathing problems
However, lots of birth injuries do not cause symptoms that are so obvious or so easy to recognize. In some cases, these symptoms may not strike even knowledgeable parents as strange or a sign that their child has suffered a birth injury. Some of these include:
- A subconjunctival hemorrhage, or a burst blood vessel in the baby’s eye – a sign of extreme pressure on the child’s skull during birth
- Breathing issues, like constant coughing or wheezing
- Lots of drooling, which could be a symptom of swallowing difficulties
- Unprovoked and inconsolable crying, especially if the baby arches his or her back
- Eating disorders, including nausea, vomiting, constipation, or trouble swallowing
- Strange eye movements, which could indicate a seizure
- Vision loss
- Hearing problems
In many cases, it can take a pediatrician to know for sure that the child has suffered a birth injury or if the symptoms are really an indication of something else. Seeing a doctor who is unaffiliated with the hospital can be critical for getting an unbiased medical opinion.
Many birth injuries, especially neurological ones, only have symptoms that take months to become apparent. These are usually detected only when the child experiences developmental delays that prevent them from growing at the same pace as his or her peers.
Wrongful Death Cases Involving Infants in New Hampshire
Birth injuries can be fatal, in addition to merely life-altering. Fatal birth injuries are most likely to happen at one of the three following stages:
- During the child’s delivery, leading to a live birth after which the newborn dies
- After the fetus has become viable, leading to a stillbirth
- Before the fetus has become viable, leading to a stillbirth
The timing of the birth injury matters because of New Hampshire’s wrongful death statute. This law, Revised Statute Annotated Chapter 556, lets the administrator of the estate of someone who has been killed by someone else’s negligence to file a lawsuit against the culpable party on the victim’s behalf. While the terms of the law make it clear that a live-born child can have a wrongful death lawsuit filed on his or her behalf, there is ambiguity as to whether that extends to stillborn children.
However, as early as 1957, the Supreme Court of New Hampshire decided that stillborn fetuses can have a wrongful death lawsuit filed on their behalf, so long as they were viable when they were injured. This case, Poliquin v. MacDonald, was affirmed in 1980 in Wallace v. Wallace, which reiterated that the stillborn fetus had to be viable at the time of the injuries.
While nonviable fetuses cannot lead to wrongful death lawsuits, many of the birth injuries that prove to be fatal are sustained by unborn children in the later stages of the pregnancy or during their delivery. These injuries often come in one of the following forms:
- Hypoxia, or a complete deprivation of oxygen for an extended period of time, leading to organ or brain damage
- Reduced blood flow, which prevents oxygen from reaching the brain, causing brain damage
- Traumatic injuries during an assisted delivery, like fatal spinal cord injuries
Gilman & Bedigian’s $55 Million Verdict for a Birth Injury
The lawyers at Gilman & Bedigian recently set a state record for a birth injury verdict.
In that case, an expectant mother was rushed to the Johns Hopkins Hospital in Baltimore, Maryland, to deliver a baby boy. There were complications, though, manifesting in clear signs of fetal distress and oxygen deprivation. Rather than doing what they could to assist in the child’s delivery immediately, though, the doctors at Johns Hopkins waited. Before they performed a C-section nearly two hours later, the baby was deprived of oxygen. When he was born, he had Cerebral Palsy and other significant impairments.
Johns Hopkins Hospital refused to admit that it had done anything wrong, so the family went to Gilman & Bedigian for help. With their legal representation, the child and his family filed a birth injury lawsuit against the doctor and hospital. When the hospital continued to insist that nothing went wrong and refused to settle the case, the claim went all the way to trial. After hearing evidence from both sides, the jury decided that something very much did go wrong and awarded the child and his family a Maryland record $55 million verdict to compensate them for their losses and to hold the hospital accountable for its poor conduct during the baby’s delivery.
Gilman & Bedigian: Aggressive and Compassionate Birth Injury Lawyers in New Hampshire
If you or your child was born with a birth injury in New Hampshire, reach out to the lawyers at Gilman & Bedigian by contacting us online to get your case started today.