There are few things as exciting as the prospect of adding to your family with the addition of a new child. Families often plan for months before the new addition arrives. For some couples, the planning takes years of trying. In every case, however, the addition of a new child can be a cause for celebration and joy.
Most of the time, giving birth and welcoming the new child is a joyous event, even if it is preceded by pain and effort. However, in some cases, the birth of a child involves the shock of learning something went horribly wrong – something that the family did not plan for or consider. For most birth injury cases in Oregon, you are entitled to compensation for the wrongdoing committed by medical professionals or institutions.
When Medical Malpractice Mars the Birth Experience in Oregon
“Medical malpractice” is a legal term that refers to a series of elements, which includes:
- a medical professional who has a duty to the patient; and
- breaches the duty of care by offering care below the generally accepted standard of care; and
- the patient suffers due to this breach of duty.
The number of ways the duty of care can be breached is countless. A med technician may not properly sterilize instruments. A physician's assistant may misread a test result, order the wrong test, or not order a test that should have been ordered. A doctor may be overly aggressive in removing the baby from the birth canal. An anesthesiologist may administer too much medication. Any one of countless professionals may fail to recognize signs of infant distress. Any one of these errors and countless other scenarios can lead to a birth injury.
Birth injuries happen either in utero – when the baby is developing in the womb – or during delivery and birth. When birth injuries happen, you are entitled to compensation in Oregon.
A Real-Life Birth Injury Example
Rebecca Fielding and Enso Martinez are no different than the thousands of other parents who looked forward to welcoming their infant son in 2010. They carefully planned a home birth with the assistance of a midwife. However, things did not go as planned, and the midwife properly advised Rebecca and Enso to go to the hospital.
When Rebecca and Enso arrived at Johns Hopkins, their son was showing signs of fetal distress. The proper response should have been to perform an emergency cesarean section. However, the medical professionals at Johns Hopkins delayed the procedure by two hours. During that time, Rebecca and Enso's son suffered irreversible brain damage. For the rest of his life, he faces seizures and countless other challenges. He requires ongoing care.
The medical professionals at Johns Hopkins refused to take responsibility for their choice not to perform an emergency c section. They claimed the damage had already been done, and that they were not responsible for Rebecca and Enso's sons' injuries. This is where the experience of the lawyers Rebecca and Enso retained, from Gilman & Bedigian, LLC, paid off. You see, most medical malpractice claims settle. Most medical malpractice attorneys are well-versed at discovery demands, evaluating evidence, and negotiating settlement agreements.
Taking a case to trial, however, requires a different set of skills. The medical malpractice attorneys at Gilman & Bedigian, LLC have those skills. When Johns Hopkins refused to settle, Rebecca and Enso's attorneys took the case to trial. After all the evidence was presented, the jury returned a verdict of $55 million dollars. This verdict ensures that Rebecca and Enso's son will have the ongoing, lifelong care he requires.
Common Birth Injuries
While the type of birth injury a child suffers is often dependent on the type of malpractice performed, there are some birth injuries that are more common than others. Some common birth injuries include:
- Shoulder and collar bones were broken due to aggressive removal from the birth canal
- Skull bones were broken due to improper use of forceps to remove the child
- Bones are broken due to medical professionals accidentally dropping the baby
- Erb's Palsy, a facial paralysis, often due to improper removal of the infant from the birth canal
- Internal bleeding
- Neck injuries
- Cerebral palsy which can result in physical and mental disabilities due to lack of oxygen
- Death shortly after birth.
These birth injuries can be caused by:
- A doctor's medical malpractice
- A medical complication caused by malpractice
- Defective medical devices
A doctor can directly cause a birth injury by committing medical malpractice. This can happen when their substandard or negligent care is the immediate precursor to the child's injuries. Examples include:
- Using too much force during an assisted delivery and breaking the child's collarbone or Erb's Palsy
- Prescribing the mother drugs that harm the fetus' development
- Harming the child by making a mistake during a C-section delivery
- Dropping the newborn and accidentally breaking a bone
Birth injuries can also be caused by the medical complications that are the result of a doctor's malpractice. This can happen when:
- Nurses neglect the mother during delivery, leading to oxygen deprivation that causes Cerebral Palsy
- Technicians do not sterilize medical instruments, leading to an infection that harms the child
- Ignoring signs of fetal distress for long enough that the oxygen deprivation causes brain damage
Even when there is an intervening medical complication, though, the doctor's malpractice can make them liable for the birth injuries caused by that complication, so long as the birth injury was a foreseeable outcome of their conduct.
The Link Between Genetics, Birth Injuries, and Malpractice
Some of the medical conditions that newborn children have at birth are the result of their genetics. While these are technically birth defects, rather than birth injuries, they can still lead to medical malpractice and compensation if the doctor failed to recognize the problem and notify the parents. Parents who have not been told that their child is likely to be born with a serious congenital defect that will drastically affect how they live their life cannot make an informed healthcare decision. This can amount to malpractice on the part of the doctor who failed to tell them of the risks.
Defective Medical Devices Can Also Cause Birth Injuries
An underappreciated cause of birth injuries in Oregon is a defective medical device.
All medical devices have the potential to be defective in three different ways:
Design defects are needless dangers with how the device was supposed to be made. If there is a risk that is inherent in using the medical device the way it is supposed to be used, and that risk could have easily and cheaply been avoided, then it can amount to a defect in the design.
Manufacturing defects are errors during the production process that lead to medical devices that do not comply with their intended design. These errors can produce devices that are prone to breaking or that do not work the way they are supposed to work. They can cause birth injuries, or can lead to complications in the childbirth procedure that end with the mother or the child getting hurt.
Marketing defects are problems with the warning labels or instruction manual. Many medical devices are complicated and precise instruments that need to be used correctly and carefully in order to avoid causing serious injuries. If the doctor is kept in the dark about one of the risks of using a medical device, it can make them powerless to take the precautions necessary to keep his or her patient safe during the procedure.
These defects can plague any of the numerous devices used to deliver a child. When a device is defective, the doctor or healthcare professional wielding it would not be responsible for the injuries that it causes to the newborn baby. Instead, it would be the company who allowed the defect to exist. Victims can file a products liability lawsuit against the company responsible and recover the compensation they deserve.
The symptoms of a birth injury will largely depend on whether the injury was a physical one or a neurological one. Some birth injuries, though, are both, and can share symptoms from each category.
Physical Birth Injuries
A physical birth injury is likely to show symptoms immediately after the child is born. These can include:
- Broken bones, often in the form of a fractured collarbone
- Dislocated shoulder
- Muscle paralysis, usually in the face or arms, which can also be a symptom of nerve damage
- Fractured skull
- Seizures, which often come with strange or jittery eye movements
- Breathing problems, especially if it is severe enough to require a breathing tube or time in the intensive care unit
- Chronic pain, which can usually be diagnosed from inconsolable crying while the baby is arching his or her back
- Problems swallowing, which can lead to eating difficulties and excessive drooling
- Hearing loss or vision problems
If a newborn has these symptoms, a pediatrician may be able to diagnose a birth injury that is causing them. Consulting with a doctor who is not affiliated with the hospital that delivered the child can be important if you want to make sure you are getting an independent medical opinion about your child.
Neurological Birth Injuries
Neurological birth injuries, on the other hand, often do not present any symptoms until the child is several months old. At that point, the developmental delays from the neurological damage can make the child unable to reach the growth milestones that doctors expect. They can fall further and further behind their peers in physical, mental, emotional, and social capacities. This makes neurological birth injuries some of the most devastating that a child can suffer.
Infant Wrongful Death Cases in Oregon
There are some birth injuries that are so devastating that they end up being fatal for the newborn. These can lead to an infant wrongful death claim being filed against the negligent doctor and his or her medical institution.
Some of the most common birth injuries that end up being fatal involve the complete deprivation of oxygen to an essential organ, often the brain. Hypoxia is one of these medical conditions. Newborn children suffer from hypoxia when they are unable to breathe for an extended period of time during their delivery. This can happen if they are stuck in the birth canal, both their mouth and nose get blocked, and their umbilical cord is constricted.
Even if the newborn is able to breathe, though, does not necessarily mean that the oxygen they are inhaling is able to get to the organs that depend on it for survival. Reduced blood flow or cut-off circulation can create the same effect of hypoxia for organs on the far side of the problem. For example, if the umbilical cord wraps tightly enough around the baby's neck to cut off circulation, the brain will be deprived of oxygen and will be damaged.
Oregon Revised Statute 30.020 is the law that allows the close relatives of a victim to file a wrongful death lawsuit on behalf of a person killed through the negligence of someone else. However, the law does not define the word “person.” While this does not impact fatal birth injury cases when the child was born alive, it matters when the baby was stillborn because of the birth injury.
The Supreme Court of Oregon has stepped in to resolve the issue. In Libbee v. Permanente Clinic, the court decided that children who were stillborn could create a wrongful death case, so long as they were viable when they were injured.
Understanding Oregon's Statute of Limitations
Every state has a statute of limitations. This is the maximum amount of time a person has to file a medical malpractice claim. In Oregon, there are two “clocks” that mark the time one has to file a claim. The first rule is the “two-year rule.” Under this rule, an injured party (or, in the case of a birth injury, the parents of the injured child) have two years to file a medical malpractice claim. However, not all injuries are readily apparent. In a case where the injury isn't immediately obvious, the parents may have up to five years to file a claim.
Parents are strongly cautioned not to practice law without a license. If parents even suspect their child suffered an injury due to medical malpractice, they should immediately contact a law firm with attorneys experienced in both negotiating medical malpractice suits and trying such claims. Further, there is no time like the present. Some parents may feel they have the luxury of time. Two years seems like a long time. However, there are many steps a law firm must take prior to actually filing a medical malpractice claim. Additionally, witnesses move, forget things, and generally over time things can get lost. The sooner an attorney starts looking at your claim, the better.
Do You Suspect Your Child Was Injured Due to a Birth Injury in Oregon?
If you think your child may have been injured due to medical malpractice during birth, contact the law firm of Gilman & Bedigian, LLC. Not only are our attorneys well-versed in medical malpractice claims, but our firm is committed to helping parents who may be dealing with a birth injury. Call our office at 800.529.6162 to schedule your consultation today.