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These days, women don’t just arrive at the hospital in labor. They most often have a birth plan in place, and they expect that birth plan to be followed. In most cases, the delivery is successful, but for some parents, their plan for a perfect birth turns into a nightmare.
Gilman & Bedigian provide an overview of birth injuries – including what they are and when you can sue for compensation. These types of injuries are incredibly tragic and complicated. Knowing what a birth injury claim entails in Ohio will help you make informed decisions about how to move forward during a time you should have been celebrating rather than suffering.
Birth Injury and Death in Ohio
There are many reasons an infant may suffer a birth injury or death. Often times, this is due to negligence, carelessness, or quite simply a wrong choice about medical treatment and care. Common birth injuries include:
- Cerebral Palsy
- Erb’s Palsy
- Internal bleeding
- Irreversible brain damage, as well as
- Nerve damage.
A birth injury can also result in death. Sometimes the infant is stillborn. Other times, the infant dies shortly after birth. Nothing can prepare parents for dealing with a birth injury or infant death. Nothing can make up for the acts of others that result in a birth injury or death. But that doesn’t mean you should do nothing about it. You – and if your child survived the birth injury – can file a birth injury claim.
There are steps parents can take to make certain that their surviving child is able to make the most of their life, given their situation based on the birth injury. For parents who have lost a child due to medical conduct, the steps they take can ensure better treatment for other parents in the future.
Causes of Birth Injuries: Medical Malpractice
A lot of the birth injuries that happen in Ohio are caused by a doctor’s medical malpractice. Medical malpractice is a substandard level of medical care. It often comes in the form of negligence, poor decision making, neglect, or omitting an important action. When it hurts someone, the doctor can be held liable. That liability can extend through the doctor to their hospital or medical institution. Together, they can be made to compensate the victims of the malpractice.
When it comes to birth injuries, the malpractice often involves:
- Neglecting the mother during labor
- Hurting the child during a C-section procedure
- Ignoring signs of fetal distress or not taking appropriate action when they are noticed
- Using so much force during an assisted delivery that the child gets hurt
- Prescribing drugs to a pregnant woman that could harm her unborn child’s development
Many of these instances of malpractice cause birth injuries. Others cause medical complications that then lead to a birth injury. In either case, the doctor can be liable for the results. As long as the birth injury was a foreseeable outcome of their conduct, they can be held liable.
Causes of Birth Injuries: Genetics
Some medical issues that children are born with are the result of genetics. While these are technically not a birth injury – they are a birth defect – they can still lead to medical malpractice if they could have been detected.
Lots of genetic defects can be discovered in the first couple of months of the pregnancy. Many of them can be found with a simple genetic test.
Causes of Birth Injuries: Defective Medical Equipment
Defective medical equipment can also cause a birth injury in Ohio. While these cases are far less prevalent than those caused by the child’s genetic makeup or a doctor’s medical malpractice, they do still exist and they still leave innocent victims severely hurt. Unlike the other two causes, though, defective devices can only lead to compensation for the victims through a products liability lawsuit, rather than one for medical malpractice, because doctors or other healthcare professionals are often powerless to stop these injuries from happening.
Defective medical devices can lead to a birth injury whenever a piece of medical equipment has a:
- Defective design
- Manufacturing defect
- Defective warning
- Packing or shipping defect
Out of these types of defects, a defective warning is likely the most common cause of birth injuries in Ohio. Defective warnings are problems with the instructions or the user manuals for medical devices. When these instructions fail to warn doctors about the potential for harm that is inherent in using the device, the doctor can be left in the dark about a serious risk to his or her patient. This can keep the doctor from taking the precautions that they need to, in order to keep their patient safe.
Packing and shipping defects are nearly unique to the field of medical devices. Most medical equipment has to be sterile when it is used for an internal procedure, or else it poses the risk of causing an infection. If a medical device is supposed to be sterilized before being sent to the hospital, negligence during the packaging or shipping stages can lead to the device getting contaminated with harmful bacteria. This can lead to an infection of the mother or newborn during the birth of a child, which can lead to a birth injury.
Common Symptoms to Look For
Babies who are born with a birth injury can exhibit numerous symptoms, depending on the nature and the extent of the medical condition they have been born with.
Some of the easiest symptoms to see include:
- A fractured skull, which often comes with dents or bumps on the baby’s head
- Seizures, which could also indicate a fractured skull
- Dislocated shoulder
- Fractured collarbone
- Other broken bones
- Muscle paralysis or partial paralysis in the baby’s arms, hands, or facial muscles
- Severe breathing problems that require medical intervention for the child to breathe
Less apparent symptoms of a birth injury include:
- Breathing issues like constant coughing or wheezing
- Sensory issues, like hearing or vision loss
- Eating problems
- Swallowing problems, which can lead to uncontrollable drooling
- Nausea, constipation, and vomiting
- Excessive fatigue
- A burst blood vessel in the baby’s eye, also known as a subconjunctival hemorrhage, which could be a symptom of other birth injuries that can be caused by excessive pressure on the baby’s skull during the delivery
- Erratic eye movement, which could a symptom of a seizure
Some of these symptoms can be difficult to detect, even for parents who know what to look for. Seeing a pediatrician can be critical.
Some of the worst and longest-lasting birth injuries are those that cause neurological damage. Unfortunately, the symptoms to these birth injuries are the ones that are nearly impossible to detect for months. Only when the child begins to experience developmental delays can the extent of the damage be seen. These delays come in the form of late or missed developmental milestones. As the child falls behind his or her peers, it can be a sign that they are struggling to overcome the neurological damage of a birth injury.
Understanding What a Birth Injury Claim in Ohio Entails
In Ohio, when someone is injured due to the medical malpractice, they are entitled to certain compensation under the law. In Ohio, according to Ohio Rev. Code 2305.113(3), this includes:
any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person.
Medical malpractice conduct can include:
- Acts or omissions in providing care;
- Improper hiring, training, retention, supervision of caregivers providing either medical treatment, medical care, or medical diagnosis;
- Claims arising out of the plan of care, or treatment, or diagnosis;
- Derivative claims of relief for parents or guardians of those subject to medical treatment, diagnosis or care, which can result in damages for any of the following:
- Loss of companionship or any other tangible loss sustained by the parent or guardian; and
- Expenditures of the parent or guardian for medical care or treatment, rehabilitation service, or other care, services, products, treatment, or accommodations.
Infant Wrongful Death Cases
Severe birth injuries can be fatal for the newborn.
Traumatic birth injuries, like fractured skulls or spinal cord injuries, can be deadly. Severe and total oxygen deprivation, also known as hypoxia, can also be fatal if it is not corrected quickly because it can lead to tissue damage. When the damage is to a necessary organ or the brain, the lack of oxygen can quickly become life-threatening. Even if the baby is breathing, oxygen may not get to the organs that depend on it if the newborn’s blood flow is reduced or their circulation is cut off. This is why it is such a dangerous situation when the umbilical cord wraps around the child’s neck during the delivery. It can prevent them from breathing and can cut off circulation from the brain.
Legally, it matters when a birth injury happens. There are three potential situations:
- The child was born alive and died after birth
- The injury happened while the child was in utero, after it had become viable, but led to a stillbirth
- The injury happened before the fetus was viable and it led to a stillbirth
In Ohio, the parents of a child who has died from a birth injury or its complications can file a wrongful death lawsuit on the child’s behalf if the child was born alive or was viable at the time of the birth injury. Ohio Revised Statute § 2125.01 allows wrongful death lawsuits to be filed “when the death of a person is caused” by someone else’s negligence. While the statute does not define “person,” the Supreme Court of Ohio, in the case Werling v. Sandy, decided that it included live-born children and stillborn children who were viable when they were hurt.
Ohio Birth Injury Claims in Action
No one dreams of becoming a plaintiff in a medical malpractice action. In fact, many people are averse to engaging in litigation, particularly if they have developed a relationship with the obstetrician or other birthing team members. However, parents are often left with no choice. Consider the case of Rebecca Fielding and Enso Martinez. Like many families, they had a birth plan in place and anxiously anticipated the birth of their son. Like some families, their birth plan didn’t go according to plan. Instead of the home birth they had dreamed of, their midwife advised them to go to the hospital, which they did.
Upon arriving at Johns Hopkins, Rebecca was examined. Their son was exhibiting signs of fetal distress – a clear indication that an emergency cesarean section was needed. However, the medical professionals at Johns Hopkins ignored these obvious signs of distress and waited two full hours before performing the much-needed surgery. Unfortunately, Rebecca, Enso, and their newborn son paid the price. Due to the lack of oxygen, their son was born with cerebral palsy, irreversible brain damage, and a host of other complications. He faces a lifetime of necessary medical care.
The professionals at Johns Hopkins refused to acknowledge their error. Instead, they insisted the damage wad Rebecca and Enso’s fault. In most medical malpractice claims, cases settle. But in Rebecca and Enso’s case, the hospital was unwilling to take responsibility. The lawyers at Gilman & Bedigian, LLC wouldn’t take “no” for an answer. They brought the case to trial. The jury awarded Rebecca, Enso, and their son$55 million dollars. This will allow Rebecca and Enso to ensure their son has the care he needs throughout his life.
Filing Birth Injury Claims in Ohio
In order to file a claim for medical malpractice, the claim must be “timely.” This means it must be filed within certain prescribed time frames. In Ohio, the time frame for birth injury medical malpractice claims is governed by the Ohio Revised Code, Title 23, 2305.113. The basic rule is that medical malpractice actions must be filed within one year of the time the “cause of action accrued.” In other words, one year from the date of injury.
However, as with many areas of the law, Ohio’s medical malpractice statute isn’t as simple as a one-year cutoff. There are exceptions and modifications. These include a 180-day extension in certain circumstances. Additionally, where the claimant is a minor, the statute of limitations may extend to four years.
Though this would be unusual among birth injury claims, where the action is based upon a claim a foreign object was left in the body, the person has one year from the time the discovered or reasonably should have discovered the foreign object.
Contact a Birth Injury Attorney Representing Ohio Today
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.