The process of giving birth, while as old as time, has changed a lot in the past 50 years. Birthing rooms, underwater births, home births, birthing plans, doulas, and midwives have all become more popular. Hospitals find themselves competing with alternative, viable means of giving birth. The good news is, the overall rate of birth injury is reducing in the United States. Experts have documented significant declines over the last 15 years.
The bad news is, birth injuries still occur in North Carolina as well as throughout the United States.
Overview of North Carolina Birth Injuries and Developmental Delays
There is a recognized difference between a “birth injury” and a “birth defect.” According to the National Vital Statistics Report, a birth injury is defined as
an impairment of the neonate's body function or structure due to an adverse event that occurred at birth.
This is different than when an infant is born with a congenital anomaly. Birth injuries occur due to actions, or lack of actions, taken by the medical professionals relied on when caring for the laboring mother, delivering the child, and/or in the moments after birth.
Typical birth injuries and developmental delays are caused by:
- Improper use of instruments
- Failure to recognize signs of distress
- Failure to follow generally accepted standards of care.
Any step in the process can result in a birth injury or developmental delay if done incorrectly. From neglecting to perform standard tests to failing to monitor the labor the deviating from standards of care, every member of the hospital team has an obligation to both mother and child. This includes both their own conduct and recognizing when another professional's conduct falls below the accepted standard of care.
Common North Carolina Birth Injuries
There are many injuries – from bruises to life-threatening injuries – that can be the result of a medical professional's negligence or medical malpractice. Below are brief descriptions of some of the more common and more serious birth injuries.
While not as prevalent as they used to be, forceps are still sometimes used during delivery. The use of forceps can cause skull fractures, clavicle fractures, and collar bone fractures. Treatment for fractures is injury specific.
Similarly, forceps can cause internal bleeding. Sometimes this bleeding occurs just below the scalp. Other times the bleeding is subdural. Treatment for brain bleeds depends on the severity of the bleeding and its location.
Erb's Palsy occurs when an infant's nerves in the neck are damaged during delivery. This injury occurs when the infant's head and neck are abnormally stretched as the infant leaves the birth canal. The injury results in a weakening or paralysis of the infant's arm. Treatment for Erb's Palsey ranges from physical therapy to surgery.
Cerebral Palsy occurs during or immediately after birth. Causes include strokes during of after birth, infections, and undiagnosed conditions. Treatments include medicines, surgery, and therapies such as physical therapy, occupational therapy, and speech therapy.
Medical Malpractice Can Cause Birth Injuries
The adverse event that leads to a birth injury is often caused by the medical malpractice of a doctor or other healthcare professional.
Medical malpractice is a healthcare service that falls below a minimum standard of care. It can take the form of a negligent action or inaction. When a healthcare provider's medical malpractice ends up hurting a patient, it can make the doctor liable for their poor conduct. That liability can extend through the doctor and to their medical institution and make them compensate the victim and family.
The types of medical malpractice that can cause a birth injury include any act of negligence that happens in the delivery room. These include:
- Hurting the child during a C-section
- Negligently administering the epidural to the mother and complicating the delivery
- Using too much force with an extraction device during an assisted delivery
- Failing to notice clear signs that the fetus is in distress and needs to be delivered immediately
Even if these negligent acts or omissions do not directly cause the birth injury, they can still lead to liability under North Carolina's medical malpractice laws. For example, not taking appropriate action at signs of fetal distress can lead to oxygen deprivation – a medical complication that can lead to other birth injuries. So long as those injuries are foreseeable consequences of the malpractice, it can lead to liability.
Malpractice and Birth Defects
Even if the baby was born with a birth defect, rather than a birth injury, doctors can still be held liable for malpractice in some circumstances.
Many birth defects can be detected using a genetic test during the early stages of the mother's pregnancy. Not running one of these tests can deprive the parents of their ability to make an informed decision about the pregnancy and can amount to malpractice.
Medical Devices and Birth Injuries
In some cases, a birth injury is actually caused by the medical equipment that doctors use to deliver the baby. These cases can be complicated because neither the doctor nor the hospital will be held liable. After all, they were often powerless to stop the device from breaking or causing the birth injury. Instead, victims have to trace the defect back to its source and then file a products liability lawsuit to hold the company responsible for the defect accountable.
Medical devices and equipment, like all other products, can be defective in three different ways:
- Design defects are problems with the intended design of the device that do not prevent a needless and foreseeable risk of injury, even though they could have been avoided easily
- Manufacturing defects are problems with the production of the device that make it not conform with the intended design, increasing the risks of it breaking while being used or causing a serious injury
- Advertising defects are problems with the instruction manual of the medical device that fail to warn doctors of the risks of using the device as it was intended to be used
Additionally, some medical devices and other medical equipment used during a childbirth procedure have to be sterile when first used. If the device was defectively packaged or shipped, it could have become contaminated with harmful bacteria on its way to the hospital. Once received, healthcare professionals are often unable to detect the contamination until it is too late and a patient has suffered a serious bacterial infection. When the victim was a newborn child, the result can be a serious birth injury.
By filing a products liability lawsuit, the victims of the birth injury and their families can recover the compensation they need and deserve and can hold a large corporation accountable for its poor actions.
Some of the most severe birth injuries that a child can suffer in North Carolina are neurological ones that will stunt their growth and development. Unfortunately, these are the birth injuries that come with the least obvious symptoms. In fact, many doctors are not able to detect a birth injury – or the extent of the damage that it has caused – until the child begins to grow up and begins to encounter developmental delays.
These delays might not become apparent for months or even over a year after the child's birth. Only when the child is late to develop the skills or traits that doctors would expect them to develop do the symptoms of a birth injury become apparent.
Thankfully, other birth injuries do not come with such tricky symptoms. These birth injuries are not necessarily any less severe – they are just easier to detect. Some of the symptoms that are the most suggestive include:
- Lumps or dents in the child's head – a sign of a fractured skull
- Other broken bones
- Dislocated shoulder
- Muscle paralysis, often in the head, face, neck, or arms
- Severe breathing problems that require a breathing tube
There are also some other symptoms that could indicate that a child has suffered a birth injury, but that are less reliable than other symptoms. These include:
- Swelling or bruising right after delivery
- Eating problems, including constipation, lack of appetite, nausea, and vomiting
- Swallowing issues, which can lead to excessive drooling
- Loss of eyesight
- Hearing problems
- Unprovoked and inconsolable crying, especially if the baby is arching his or her back, which is a sign of severe pain
- Coordination problems
- Strange eye movements, which could be an indication that the baby is having a seizure
- Fatigue or lethargy
- Excessive fussiness or moaning
The Process of Proactively Advocating for Your Child in North Carolina
If your child has suffered a birth injury, they may face months, years, or even a lifetime of medical care, medically necessary equipment, treatments and therapies. Advocating for your child living their best life includes holding accountable those responsible for your child's injury. This is the only way to ensure your child's medical needs will be met during their lifetime.
Contact an Attorney Who Understands Birth Injury Cases
All attorneys basically take the same coursework during law school. It is only after law school that attorneys begin their specialty practice. Technically, any licensed attorney could take on a birth injury case. However, it is a good idea to research attorneys to find one already familiar with how birth injury cases work. This includes investigation, filing a complaint, filing interrogatories, engaging in other discovery-related activities, case analysis, potential negotiation, and, where the case cannot be settled, trial.
A Proven Track Record
In 2010, Enso Martinez and Rebecca Fielding were just like any other couple, eagerly awaiting the birth of their son. When Rebecca went into labor, it soon became apparent that their dream of home birth was not a possibility. The couple went to the hospital, where the medical staff should have performed an immediate emergency c-section. Sadly, the staff ignored signs of fetal distress and delayed the procedure by two hours. As a direct result of the delay, Enso and Rebecca's son suffered permanent and irreversible harm, including brain damage, cerebral palsy, and a host of other medical conditions that will impact him for the rest of his life.
The medical staff at Johns Hopkins refused to accept responsibility for Rebecca and Enso's son's injuries. So, the lawyers had no choice but to take the case to trial. The jury returned a landmark verdict in the amount of $55 million dollars. This assures Rebecca and Enso their son will have his medical needs met.
Infant Wrongful Death Cases
Some of the most severe types of birth injuries can become life-threatening. These include:
- Hypoxia, or a total or a near-total oxygen deprivation that is not quickly corrected
- Circulation issues that prevent blood from bringing oxygen to the organs that need a steady supply of it
- Traumatic injuries that cause damage to the skull, spinal cord, or internal organs
When these birth injuries end up being fatal, the grieving parents of the deceased child may be able to file a wrongful death lawsuit against the doctors and their medical institution, claiming that medical malpractice and negligence caused the death of their newborn.
In North Carolina, the wrongful death statute is N.C. General Statute § 28A-18-2. This law says that, when negligence or malpractice causes “the death of a person,” the close relatives and legal representatives of the deceased party's estate can file a lawsuit against the wrongdoers. The statute, however, does not define “person,” leaving some ambiguity as to whether the statute covers the three common fatal birth injury scenarios:
- The child is born alive, but soon dies from prenatal injuries
- The child is stillborn from birth injuries suffered after it was viable
- The child is stillborn from birth injuries suffered before it was viable
While a child born alive is clearly a “person” under the wrongful death statute, stillborn children may not be.
North Carolina courts, however, drew the line at viability in the case DiDonato v. Wortman. A stillborn child who was hurt after becoming viable is a “person” under the statute, letting his or her parents file a wrongful death lawsuit against the negligent doctor that caused the birth injury. Non-viable fetuses that suffered a fatal birth injury and were stillborn, however, do not give parents the ability to pursue a wrongful death case.
Understanding the Statute of Limitations in North Carolina
The "statute of limitations" is a legal term that means, basically, "the amount of time you have from the time of injury until you must file a lawsuit." If you don't file a lawsuit before the statute of limitations has run, you may lose your claim. In North Carolina, the statute of limitations for medical malpractice claims is typically three years from the time of injury. However, there are some exceptions, which are technical in nature, and should be discussed with an attorney well versed in medical malpractice claims.
Compassionate, Aggressive Birth Injury Attorneys Representing North Carolina
You only pay the firm if you receive a favorable outcome. You have nothing to lose – and so much to gain for your family. Don't wait. Our North Carolina birth injury attorneys are waiting to help. Contact the attorneys at Gilman & Bedigian, LLC at 800.529.6162.