A doctor can commit medical malpractice and hurt a newborn baby or an unborn fetus in ways that will forever change the course of the child's life. Should this ever happen to you or to your child in New Jersey, filing a birth injury lawsuit against the negligent doctor and his or her medical institution can help you recover the compensation you need and deserve.
The lawyers at Gilman & Bedigian can help. Their legal representation has helped birth injury victims recover huge verdicts in the past, and their advocacy can help you get what you need, too.
Types of Birth Injuries
A birth injury is any medical condition that a child endures or suffers during their time in their mother's womb or when they are delivered. This means there are numerous types of birth injuries, depending on what condition they are born with.
Some of the most common birth injuries include:
- Oxygen deprivation
- Perinatal asphyxia
- Shoulder dystocia
- Subarachnoid or intracranial hemorrhaging
- Subconjunctival hemorrhaging
- Erb's Palsy
- Cerebral Palsy
- Facial paralysis
- Diabetic retinopathy
Many of these birth injuries come with medical complications of their own, like developmental delays that can make it impossible for an afflicted child to grow up as quickly as their peers and master basic skills at the same speed as they should be able to.
Most birth injuries happen in the delivery room. For example, doctors can try to assist in the delivery of the child using an extraction device, but use too much force for the circumstances and end up hurting the child.
However, some birth injuries happen well before then. If a doctor commits malpractice on a pregnant woman and causes harm to the unborn fetus, it can lead to a birth injury.
Some birth injuries can be easy to detect because the symptoms are very clear. Others, though, only have subtle symptoms that most parents might overlook. Still other injuries have symptoms that take months to be seen, at all.
The obvious symptoms that a child has suffered a birth injury include:
- Breathing problems severe enough to require a breathing tube right after birth
- Broken bones
- Fractured skull
- Dislocated shoulder
- Bruising or swelling or other signs of physical trauma
The other symptoms of a birth injury include lots of signs that an unwary parent might not recognize as being a symptom of something wrong. These include:
- Limp or weak limbs, usually in the hands or arms, that indicate muscle paralysis or nerve damage
- Asymmetrical facial movements, a sign that muscles in the baby's face are paralyzed
- Subconjunctival hemorrhaging in the eye, which looks like a small pool of blood in the white of the baby's eye and is a sign that the pressure on the baby's skull may have been intense enough to cause neurological damage
- Loss of vision or hearing
- Eating problems, including issues swallowing, drooling, digesting food, and loss of appetite
- Erratic or uncontrolled eye movements, which could be a sign of seizures
- Excessive crying, especially if the baby is arching his or her back at the same time
If one or several of these symptoms is present, you may want to take your child to a pediatrician who is not affiliated with the hospital that delivered the baby.
Some birth injuries do not even have any symptoms for several months. The most reliable sign of a neurological birth injury is a developmental delay, where the child misses several growth milestones. This can take several months or even a year to happen, though, making it difficult to correctly diagnose these injuries.
Causes of Birth Injuries
A birth injury can be caused by the child's genetics or by a doctor's malpractice.
Genetic abnormalities happen and can lead to a child being born with a severe or life-threatening medical condition.
Typically, these are called birth defects rather than birth injuries because of the outsized role that bad luck plays in them.
However, even genetic defects can lead to a doctor's liability under New Jersey's medical malpractice laws.
Many genetic defects are easily detectable. When a doctor does not bother trying to look for the possibility of a genetic defect, it can deprive the parents of the ability to make an informed decision. This can amount to medical malpractice.
Defective Medical Devices
Over the course of a child's delivery, doctors and other healthcare professionals use a wide variety of medical devices. Some are basic, common, or even seemingly primitive, like towels, sponges, and protective equipment like gloves, gowns, and masks. Others are far more complicated and are the result of years of research and development, like:
- Oxytocin, a drug that helps dilate the mother's cervix
- Epidural shots, which help to alleviate the mother's pain during the delivery
- Forceps and other extraction devices
These devices, however, can be plagued with potentially dangerous defects that can cause a birth injury. These defects can take the following forms:
- Design defects
- Manufacturing defects
- Advertising defects
- Packaging defects
A medical device that has been defectively designed comes with a needless risk that could have been prevented or avoided with a better design. These defects, though, are rare because the designs of most medical devices have been tried and tested over years of use.
Manufacturing defects produce medical devices that do not comply with the intended design. This can drastically increase the risk of failure in the delivery room, which can cause a serious birth injury.
Advertising defects are issues with the medical device's instructions for use. If these instructions fail to warn doctors of the risks that are inherent with the device's intended use, it can keep the doctor from taking appropriate precautions, which can lead to a birth injury.
Packaging defects are unique to medical devices that are expected to be sterile when they are first used in the hospital. If the device is packaged or shipped defectively, it can get contaminated on the way and can cause an infection.
All of these cases involve no negligence on the part of the doctor. Victims can recover compensation by filing a products liability lawsuit against the company that negligently caused the defect.
Birth Injuries Caused by Malpractice
Many other birth injuries are the result of a healthcare provider's medical malpractice. Malpractice is any healthcare service that falls below a reasonable level of care. Negligence, poor decision making, and an unreasonable lack of awareness can all amount to malpractice.
Some particular examples include:
- Failing to notice clear signs that the fetus is in distress during the mother's labor
- Not reacting to signs of fetal distress appropriately
- Using too much force with an extraction device in an attempt to complete the birth during an assisted delivery
- Hurting the child during a negligently performed Cesarean section
- Giving a pregnant woman drugs that would harm her unborn child
- Hurting the fetus during an internal procedure on the mother
Each of these incidents can directly harm the child or can set in motion a chain of medical complications that can lead to a birth injury. Even if the malpractice was not the direct cause of the injury, if the injury was a foreseeable consequence of the malpractice, the doctor and their medical institution can be held liable.
New Jersey Also Recognizes Both Wrongful Birth and Wrongful Life Claims
New Jersey is one of the few states in the U.S. that provides multiple avenues of recovery for hurt children and their parents. Not only can they file a medical malpractice lawsuit against the negligent doctor and the hospital that employs them; a hurt child can file a wrongful life claim, while the parents can file a lawsuit alleging wrongful birth.
Wrongful Life Lawsuits Can Be Filed By a Hurt Child
In a wrongful life lawsuit, the child claims that he or she was hurt or suffered birth defects while in utero, but a doctor's malpractice prevented the parent from terminating the pregnancy. Because the child was born with these injuries, the lawsuit claims, he or she deserves to be compensated for the extraordinary medical expenses related to them.
Most states do not allow children to recover compensation through a wrongful life lawsuit because were it not for the doctor's negligence, the child would not have been born at all. New Jersey, however, has recognized wrongful life actions since the 1984 case Procanik v. Cillo.
Examples of wrongful life lawsuits include situations where a doctor failed to abort a damaged fetus, leading it to be born with serious birth defects, or when a doctor failed to detect a genetic disorder that would lead to the child being born with a birth injury.
Wrongful Birth Lawsuits Can Be Filed By Parents
A wrongful birth lawsuit, on the other hand, can be filed by parents who were deprived of their right to make an informed medical decision about their unborn child by a doctor's malpractice. These cases often revolve around situations where a doctor fails to conduct a genetic test that would have detected a birth defect and allowed the parents to make an informed decision about whether to keep or abort the fetus.
Wrongful birth lawsuits have been recognized in New Jersey since the 1979 case Berman v. Allan. Parents can recover the extraordinary medical expenses associated with their child's medical condition.
Wrongful Death Lawsuits for Fatal Birth Injuries
While New Jersey recognizes wrongful birth and wrongful life lawsuits, it is also one of the few states to not allow parents to file wrongful death lawsuits on behalf of their unborn or stillborn children.
Common Types of Fatal Birth Injuries
Fatal birth injuries can happen while the fetus is still in utero or during the child's delivery. They can lead to the child either being stillborn or being born alive, only to pass away soon after birth.
Some of the most common types of birth injuries that prove to be fatal include:
- Traumatic injuries to the skull or spine
- Blood circulation problems
Hypoxia is the medical condition of a complete or nearly complete deprivation of oxygen. If not corrected quickly, hypoxia can lead to organ or tissue damage. If this damage is bad enough, it can be fatal.
Circulation problems can also be fatal. Similar to hypoxia, a reduced blood flow means that blood – and the oxygen that it carries – cannot reach an organ that needs it to survive.
New Jersey Requires a Live Birth for a Wrongful Death Claim
New Jersey's wrongful death statute, N.J. Statute § 2A:31-1, lets close relatives of victims who have died from the negligence of others to sue the wrongdoer on the victim's behalf. Like many other states with similar statutes, New Jersey's does not say whether unborn children are covered.
Unlike all but a half-dozen other states, though, New Jersey's supreme court has determined that it does not. In the 1988 case Giardina v. Bennett, the Supreme Court of New Jersey ruled that wrongful death lawsuits could not be filed on the behalf of stillborn children; instead, they had to be born alive.
However, the court did allow parents to file a personal injury claim for negligent infliction of emotional distress for losing an unborn child to medical malpractice.
Compensation Available in a Typical Birth Injury Claim
In addition to wrongful birth and life lawsuits, New Jersey allows parents and hurt children to file a traditional birth injury claim, which alleges that a doctor committed malpractice and saddled the child with a birth injury. These lawsuits can recover compensation for:
- Medical expenses
- Anticipated costs for future medical care
- Pain and suffering
- Emotional distress
- Loss of life's enjoyments
- Loss of consortium
Unlike in many other states, New Jersey does not have a statute that caps the amount of damages that can be recovered in a birth injury claim. This means victims can recover all of the compensation that they deserve, rather than being limited by a law to a set and often trivial amount.
A Long Statute of Limitations for Birth Injury Claims in New Jersey
New Jersey has a statute of limitations specifically for birth injury lawsuits that were the result of a doctor's medical malpractice. That law, New Jersey Revised Statute § 2A:14-2, gives the child victim and their parents until the child's 13th birthday to file their lawsuit. This is far longer than the statute of limitations for other states, which often only give the parents a couple of years to file a claim on their child's behalf.
A Track Record of Success: Gilman & Bedigian's Record-Setting $55 Million Verdict
The lawyers at Gilman & Bedigian have already accumulated a track record of success representing victims of birth injuries. Just recently, they set a Maryland state record for birth injury claims with a $55 million verdict.
That case involved medical malpractice at the Johns Hopkins Hospital in Baltimore, Maryland. Doctors there did not take immediate action to signs of fetal distress after a mother came to the hospital to deliver a baby. It took doctors two hours to perform a C-section, and by that time the baby had been deprived of so much oxygen that he was born with Cerebral Palsy and other medical issues.
With the help of the lawyers at Gilman & Bedigian, the victim and his family were able to invoke their rights and recover the compensation they deserved.
Compassionate and Aggressive Birth Injury Attorneys Serving New Jersey
If you or your child has been saddled with a birth injury in New Jersey, reach out to the lawyers at Gilman & Bedigian. Contact us online to get started on your case today.