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No one imagines their birth story will include negligence, oversight, incompetence, or a failure to appreciate the gravity of a given situation. Unfortunately, sometimes that is precisely what happens. In these situations, an infant can get hurt, either temporarily or permanently. Sometimes, infants die due to the malpractice of the birthing team. When this happens, families naturally go through a grieving process. Even when the child survives, sometimes they are not able to reach their full potential.
If this has happened to you, the attorneys at Gilman & Bedigian want you to know you are not alone and you deserve compensation. Though compensation cannot change what has happened, it can help with the recovery process.
Common Birth Injuries
Common birth injuries can include the following:
- Internal bleeding
- Nerve damage
- Cerebral Palsy
- Erb’s Palsy
- Brain damage
The cause of these injuries can range from misusing instruments to failing to recognize signs of infant distress. It can be due to improper medical dosing of the mother to failing to properly sterilize instruments. Regardless of the means that effectuated the birth injury, all medical malpractice claims have some things in common.
It is the job of an attorney to determine whether the conduct (or lack of conduct) reaches the level of medical malpractice in the first instance. Later, a jury or judge will review the facts and make a separate determination at different stages of the proceedings.
Birth Injury Symptoms
Depending on the type of birth injury that the child has suffered, the symptoms can be apparent or impossible to detect for months after birth. Parents who know what to look for can see a pediatrician and get a diagnosis as early as possible so they can take action quickly.
Some of the most obvious symptoms of a birth injury tend to come after a doctor’s malpractice has caused a physical malady. These symptoms include:
- A dent or lump in the child’s head, which can be a sign of a fractured skull
- Bruising or swelling
- Asymmetrical movements in the child’s face, a sign of facial paralysis
- Limp, stationary, or weak arms, a sign of paralysis or nerve damage
- A dislocated shoulder or a fractured collarbone, both of which are signs that the delivery was so traumatic that there may be other birth injuries, as well
Other symptoms are less apparent, though:
- Breathing problems, like coughing or wheezing
- Vision or hearing loss
- A subconjunctival hemorrhage, or a burst blood vessel in the white of a baby’s eye, which can happen when the pressure on the child’s skull was so severe that it could have also caused other birth injuries
- Chronic pain, which can usually be detected with the baby cries inconsolably while arching his or her back
- Eating problems, including nausea, weak appetite, swallowing problems, uncontrollable drooling, constipation, and vomiting
A pediatrician can use these symptoms and other tests to diagnose a birth injury.
Some symptoms, however, do not begin to appear for several months after the child is born. When a child is late to achieve developmental milestones, it can be a symptom of neurological problems caused by a birth injury suffered in the delivery room. These developmental delays can be among the most severe types of birth injuries that a child can suffer.
Birth Injuries Caused by Medical Malpractice
Many birth injuries are the result of a doctor’s medical malpractice.
Medical malpractice is a provision of healthcare services that is so substandard that it ends with someone getting hurt. When that victim is a newborn child, the result is a birth injury.
Malpractice can cause a birth injury during the delivery, like when:
- A doctor assisting in a difficult delivery uses an extraction device with so much force that the child gets hurt
- A surgeon makes a serious mistake during a Cesarean section
- A nurse neglects the mother during labor, leading to medical complications that cause a birth injury
However, the malpractice can also cause a birth injury even before the mother and unborn child get to the hospital. Malpractice can cause a birth injury when:
- A doctor prescribes a female patient drugs that could hurt a fetus’ development without checking to see if she is pregnant or not
- A doctor or surgeon conducting an internal procedure harms the fetus
In either of these situations, the doctor’s malpractice can make them liable for the foreseeable results of their negligent conduct. That liability can extend through them to the medical institution that employs them.
Congenital Birth Defects and Malpractice
Some medical conditions that children are born with are the result of genetics, rather than a doctor’s actions. However, doctors can still be held liable for malpractice in some cases where a child is born with a birth defect.
Many birth defects can be discovered early in the pregnancy, often through a simple genetic test. If a doctor does not conduct this test, they may not discover the problem until it is too late. This can deprive the parents of the ability to make an informed medical decision. Depriving them of this information can amount to medical malpractice in North Dakota.
Birth Injuries and Products Liability Claims
Medical malpractice is not the only cause of a birth injury in North Dakota: Sometimes, a defective medical device can be the real reason why a newborn baby has been born with a serious injury that could hamper their development. While these cases are relatively rare, they do still happen, and the victim and their parents deserve to be compensated when they do.
However, the doctor who delivered the child and his or her medical institution is rarely the responsible party in these cases. After all, the problem that caused the injury was with one of their tools. Instead, the negligent party who was ultimately responsible for the birth injury is the company that produced a defective product. That negligent party can be held accountable and made to compensate the victims through a products liability lawsuit.
Those defects can be either:
- Design defects
- Manufacturing defects
- Advertising defects
- Packaging defects
Design defects happen when the design of the medical device does not protect against a foreseeable risk of injury, while manufacturing defects create a risk by producing a device that does not conform to the intended design.
Advertising defects are less straightforward, but also far more common. They are problems with the instruction manual that comes with most medical devices. If the manual fails to warn doctors of the inherent risks of using the device, the doctor may accidentally misuse it. This can cause a birth injury that was not necessarily the fault of the doctor.
Finally, packaging defects can lead to a medical device or other piece of medical equipment reaching the hospital in an unsterilized condition. If healthcare professionals expect it to be sterile when it is first opened, but it is actually contaminated with harmful bacteria, this can lead to a serious infection and a birth injury.
Fatal Birth Injuries and Wrongful Death Cases
Severe birth injuries can be life-threatening and even fatal. These tragic incidents are often caused by medical malpractice that leads to:
- Hypoxia, or a complete deprivation of oxygen that can cause potentially fatal tissue, organ, and brain damage
- Reduced blood flow, which can prevent oxygen from getting to the tissues and organs that need it
- Traumatic injuries during an assisted delivery that damages the brain, spinal cord, or other important organs
These fatal birth injuries can create three crucially different scenarios in North Dakota:
- The birth injury harmed a non-viable fetus and led to a stillbirth
- The injury harmed a viable fetus and led to a stillbirth
- The baby was born alive but died shortly after birth from the injury
These different outcomes are important because the wrongful death statute in North Dakota, North Dakota Century Code § 32-21-01, holds negligent parties accountable whenever their poor conduct causes “the death of a person.” The victim’s close relatives can file a wrongful death claim on behalf of the victim against the wrongdoer.
The statute, however, does not define what is meant by a “person.” While a baby born alive is clearly a person under the wrongful death statute, the answer is less apparent for stillborn children.
Since 1984, the courts in North Dakota have drawn the line at viability. That was when the Supreme Court of North Dakota decided the case of Hopkins v. McBane. In that case, the court decided that a viable fetus that suffers a prenatal injury that causes them to be stillborn is a “person” under the state’s wrongful death statute, thereby allowing their parents to file a wrongful death claim against the doctor and hospital that caused the injury.
Evaluating a Birth Injury Claim in North Dakota
There are a number of different people who may evaluate a birth injury. Some are concerned about their own liability. Others owe a fiduciary duty to the injured party and their family. They may, logically, come to different conclusions about the same evidence. Here’s an overview of what filing a birth injury claim may entail in North Dakota.
Medical Professionals Who Participated
It is not uncommon for a doctor, medical professional, or hospital to deny their responsibility in a birth injury. They may blame a mother for waiting too long to go to the hospital. They may claim the injury couldn’t be helped. As such, it is best to get a second or even a third opinion about what may have caused your child’s birth injury.
When you hire a legal team, you involve not only attorneys experienced in birth injuries, you also gain the expertise of trusted medical experts who scour the records to determine if and when the medical professionals dropped the ball.
The Legal Standard of Review
Medical professionals and birthing teams have an obligation to exercise a recognized standard of care. When their conduct falls below the standard of care, and someone gets injured, they should be held responsible for the injuries they cause. This is called a medical malpractice claim.
Hiring a Birth Injury Lawyer Representing North Dakota
Once you hire a legal team, your situation is evaluated against the legal standard and a determination is made. If the attorneys and team members think you have a claim, they will proceed with additional legal steps, including:
- filing a complaint;
- sending discovery demands;
- deposing witnesses; and
- meeting with medical experts.
Once this groundwork has been laid, most cases resolve with a financial settlement. However, some cases must be tried, and when that is necessary, the attorneys at Gilman & Bedigian, LLC have the legal experience needed to do so.
Birth Injury Medical Malpractice Victory
Every birth injury story is unique in its own way. Most end with happiness, but some result in tragedies. The tragedies involve the end of a dream of a life of endless promise and possibilities due to someone else’s carelessness, recklessness, or incompetence. This happening in 2010 to Rebecca Fielding and Enso Martinez who were expecting a little boy. Originally, they planned to labor and birth at home. However, the circumstances soon made it clear that their desired birth plan was not to be.
Rebecca and Enso went to the hospital for an emergency cesarean section. However, the medical staff at Johns Hopkins did not respect the clear signs of fetal distress. Instead of an emergency cesarean section, the Hospital waited for two hours before performing the procedures. Predictably, Rebecca and Enso’s son continued to suffer fetal distress and loss of oxygen. Consequently their son suffered brain damage, cerebral palsy, and a host of other medical complications. All of this was due to the malpractice committed by the hospital.
Rebecca and Enso understood their son faced a lifetime of medical care, treatments, and therapies. They turned to the legal team at Gilman & Bedigian, LLC for representation. As with any medical malpractice case, the attorneys reviewed the evidence before filing a complaint. Once the complaint was filed and discovery began, it became evident that the case would not resolve.
The professionals at Johns Hopkins refused to take responsibility for their malpractice, but the lawyers at Gilman & Bedigian were not deterred. They took the case to trial and won the largest medical malpractice award in Baltimore for $55 million dollars. Nothing can change what happened to Rebecca and Enso’s son. However, the jury verdict can ensure that their son gets the care he needs during his lifetime.
The Time to File a Claim is Limited in North Dakota
In every state, the time to file a claim against a doctor, hospital, or other medical personal is limited. In North Dakota, this limitation is generally two years from the date of injury under 28-01-18.
However, not all medical injuries are discovered or discoverable right away. As such, North Dakota law allows for up to six years to discover the injury and file a claim.
The timing of medical malpractice claims is referred to as the “statute of limitations.” As with many concepts in the law, the statute of limitations can be complicated. No parent should presume that the time has passed for them to file a claim. Only an attorney fully informed of the facts can make a legal determination about whether a claim can still be filed.
Contact a North Dakota Birth Injury Attorney Dedicated to Your Compensation
Contact Gilman & Bedigian online to get started on your case if you or a loved one has been hurt by a birth injury in California.