Adding to your family with the birth of a new child is most often a joyous occasion. With new life comes new possibilities, a new dream for the future, a new and different family dynamic. But sometimes, things don't go as planned. Sometimes, an infant suffers a birth injury during labor, delivery, or shortly after birth.
When a birth injury occurs, many times it is due to the negligence or fault of a medical professional or medical institution. If that is the case, then you are entitled to compensation. Though compensation will never change what has happened, it can reduce the stress through financial means and present you with an opportunity to make sure your child receives the proper care he or she should receive.
What are the Most Common Kinds of Birth Injuries?
In South Carolina, a birth injury is a medical condition suffered by a newborn child.
There are hundreds of potential birth injuries that children can suffer. Some of them are incredibly rare, but also devastating and usually fatal. Others are more common but relatively trivial or easily treatable.
Some of the most common, but severe, birth injuries include:
- Facial paralysis
- Shoulder dystocia
- Subconjunctival hemorrhaging or intracranial hemorrhaging
- Spinal cord injuries
- Erb's Palsy
- Cerebral Palsy
- Oxygen deprivation
- Perinatal asphyxia
Each of these birth injuries can be relatively minor or serious. For example, Cerebral Palsy may leave a victim with a slight limp for the rest of their life or can put them in a wheelchair with a severe mental impairment.
What Can Cause a Birth Injury?
Birth injuries can occur in utero (while the fetus is developing) or during the delivery and birth. In both cases, one of the most common causes is a doctor's medical malpractice or a provision of medical care that fails to meet even the lowest standards.
While in utero, there are numerous ways for an unborn child to get hurt. For example:
- A doctor might prescribe medication to a pregnant woman that would be harmful to the fetus
- A surgeon negligently performs an internal procedure on a pregnant woman and hurts the fetus
- A medical technician takes X-rays of a pregnant woman without taking the appropriate steps to protect the unborn child
Additionally, a doctor may have failed to take a test that would have identified genetic abnormalities that carried a high risk of the child being born with a birth defect. By not performing the test, or by conducting the test but not communicating the results to the parents, it can prevent the parents from making an informed decision about the pregnancy and their child.
Other birth injuries happen during the baby's delivery when, for example:
- Nurses neglect the mother during labor, missing telltale signs of fetal distress
- Doctors do not take appropriate action when it becomes clear that an emergency delivery is needed
- Surgeons make a mistake during a Cesarean section
- The baby is accidentally dropped after birth
- An assisted delivery leads to the baby getting hurt when the doctor uses too much force
Whether the injury happens in the delivery room or the mother's womb if it was the foreseeable result of a doctor's medical malpractice, the doctor and his or her medical institution can be held liable and made to pay the victim compensation.
What are the Symptoms?
The symptoms depend on the nature and extent of the birth injury. Some birth injuries are relatively minor, and will have symptoms that can be difficult to detect. Others will be very apparent and immediately noticeable. Still other birth injuries will be severe, and will have devastating symptoms, but they will not become apparent until months have passed.
Some of the most apparent symptoms that a child has suffered a birth injury include:
- Broken bones
- Fractured skull
- Fractured collarbone
- Dislocated shoulder
- Bruising or swelling, which could indicate a deeper physical problem
- Severe breathing issues
- Asymmetrical facial movements, a symptom of facial paralysis
- Limp or weak limbs, often one or both arms, which is a symptom of nerve damage
Other symptoms are less apparent, though. It can take a pediatrician's diagnosis to connect them to a child's birth injury. These include:
- Excessive crying, especially if the baby arches his or her back while crying – a sign of chronic pain
- Excessive fatigue
- Lack of appetite
- Seizures, which can sometimes be diagnosed with the baby's eye movements
Seeing a pediatrician who is independent from the hospital that delivered the baby can be crucial for getting an unbiased diagnosis.
Some of the most severe birth injuries, though, are neurological issues that can stem from brain damage caused by the doctor's malpractice. These injuries do not always produce any symptoms until several months have passed. At that point, the baby may fall behind his or her peers in their development. When a child consistently misses the growth milestones that doctors set out, it can be a symptom that a birth injury is holding back their development and preventing them from keeping pace with their peers.
A Real-Life Birth Injury Example
Rebecca Fielding and Enso Martinez were like most expecting parents in 2010. They were excited to welcome their son into the world. After careful consideration, Rebecca and Enso decided their best birth choice included laboring and giving birth at home.
Sensibly, Rebecca and Enso secured the services of an experienced midwife to guide them through the birthing process. After experiencing some labor at home, Rebecca and Enso were advised to go to the hospital for a more medically monitored birth. Because they trusted their midwife, they did so.
Unfortunately, Rebecca and Enso were not listened to when they arrived at Johns Hopkins. Despite being examined and despite a finding that a cesarean section was the appropriate and medically necessary course of action, Rebecca and Enso waited and waited for the medical professionals to actually perform the cesarean section.
Two hours later, medical professionals finally performed the emergency surgery. Unfortunately, by then it was too late. Rebecca and Enso's son suffered irreversible brain damage and will suffer from physical and mental disabilities for the rest of his life. This is a tragic situation that could have been prevented if medical professionals had just done their job.
A Real-Life Medical Malpractice Example in South Carolina
Rebecca and Enso turned to the medical malpractice attorneys at Gilman & Bedigian, LLC to see if they could help. As new parents of a severely disabled child, Rebecca and Enso were facing massive amounts of medical costs, therapies, medications, home modifications, and a host of other unexpected changes to their life.
The Gilman & Bedigian, LLC medical malpractice attorneys utilized their deep bench of case managers, medical professionals, and legal professionals to gather the necessary information to determine if Rebecca and Enso had a case on behalf of their family. In the end, the attorneys managed to obtain a verdict of $55 million dollars. This money will cover Rebecca and Enso's son's lifetime of medical needs.
The Timeline of a Medical Malpractice Birth Injury Lawsuit
However, the case did not go from attorney contact to $55 million in one fell swoop. No. Instead, there was a long road of legal work in between the time Rebecca and Enso first made an appointment with the law firm and the time of the verdict.
Initial Consultation. As with any other set of parents fearing medical malpractice caused their child's birth injury, first, Rebecca and Enso met with the legal team to discuss the case.
The Case Review. Then the lawyers contacted medical professionals to review the case to determine if, indeed, medical malpractice caused the injury. Once this was confirmed, the lawyers filed suit.
The Filing of the Lawsuit. When a medical malpractice suit is filed, the medical professionals being sued have the opportunity to file a response. Next, a court becomes involved to review the case for legal sufficiency.
The Discovery Phase. The filing of the lawsuit is followed by a discovery phase. Each party writes up a list of questions, called “interrogatories” for the other side. The interrogatories are exchanged. Next, the parties are expected to answer the interrogatories and provide documentation to the other side. This can be productive, as each side gets a clearer picture of the strengths and weaknesses of the other side's case.
Settlement Negotiations. Often, during the discovery phase, the attorneys will engage in settlement negotiations. Settlement negotiations include discussions of level of responsibility, cost of ongoing care due to the birth injury, and, in some cases, other things the parties desire. This may include no admission of responsibility (often desired by the medical professionals involved) or an apology (often desired by the family of the birth injured child). If the parties cannot come to an agreement, many courts will send the parties to mediation.
Mediation. Mediation can be beneficial, as the mediator is a neutral third party who speaks with both parties to determine whether there may be common ground. The mediator can suggest possible settlement approaches but cannot force a settlement on either party.
Trial. If the case cannot be resolved, it is set for trial. Even on the day of trial, the judge and the parties may attempt to resolve the case. The truth is, most medical malpractice cases settle. However, this is not always the case. As you might imagine, the skills necessary to negotiate the case are not the same skills necessary to try the case.
In Rebecca and Enso's case, the litigators took the case to trial when Johns Hopkins refused to accept responsibility for their conduct. The jury, after hearing all the evidence, made the decision that $55 million was the right amount of money to cover Rebecca and Enso's son's medical expenses and address other issues presented by the court.
South Carolina's Statute of Limitations
In South Carolina, the general rule is that medical malpractice cases must be filed within three years of the date of injury. However, this is a general guide, and parents are cautioned that there may be exceptions to this rule, depending on the facts and circumstances of an individual case.
It is a good idea to contact a medical malpractice attorney as soon as practicable to determine if there is a cause of action.
Infant Wrongful Death in South Carolina
Birth injuries can be fatal, leading to the death of the newborn soon after it was born or causing a stillbirth. These injuries are most often caused by one of the following medical conditions:
- Reduced blood flow
- Traumatic injuries
Hypoxia is the complete, or near-complete, deprivation of oxygen. If the loss of oxygen continues unabated for several minutes, it can lead to major organs shutting down and getting damaged. This damage can happen even if the newborn is breathing – if blood circulation is constricted or completely cut off, the blood will not be able to transport the oxygen to the organs that are on the far side of the circulation problem. This is especially common when the umbilical cord gets wrapped around the child's neck.
South Carolina's law for infant wrongful death begins with the state's wrongful death statute, South Carolina Code § 15-51-10. This law states, “whenever the death of a person shall be caused by” someone else's negligent act, the victim's relatives could file a wrongful death lawsuit on the victim's behalf.
The statute, though, does not say whether “a person” includes unborn children. This raises questions for three situations:
- The child suffers a birth injury, is born alive, and then dies from the prenatal injury
- A fetus is hurt after it has become viable and is then stillborn
- The fetus is hurt before it has become viable and is then stillborn
The Supreme Court of South Carolina has resolved each of these situations.
In Hall v. Murphy, the court decided that live-born children who then die from birth injuries sustained after they had become viable gave their parents the right to file a wrongful death lawsuit on their behalf.
Fowler v. Woodward is the case that allows wrongful death lawsuits to be filed on behalf of unborn children who are stillborn from a birth injury suffered after becoming viable.
Finally, in Crosby v. Glasscock Trucking Co., the court decided that fetuses hurt before they become viable did not give their parents the right to file a wrongful death lawsuit.
Birth Injuries Caused by Defective Medical Equipment
In some cases, a newborn baby's birth injury was not caused by either their genetic makeup or by a doctor's medical malpractice: Instead, it was caused a defect in one of the many tools that doctors use to deliver a child. When this happens, there was often very little that the doctor could have done to prevent the injury. As a result, it would be unfair to hold them accountable and force them to compensate the victims. The company that designed or made the medical device in a defective way should be held accountable.
That can take a products liability lawsuit, rather than one grounded in medical malpractice.
A products liability lawsuit demands compensation for injuries that have been caused by:
- Defective designs
- Manufacturing defects
- Advertising defects that failed to warn of the risks
When it comes to medical devices, advertising defects are likely the most common. They involve a lack of warning labels or poor instructions about how to safely use the device. If they fail to warn a doctor about the risks of using the device, the doctor could unknowingly put the patient at risk. If the risk was not something that the doctor could have foreseen, then any injuries it causes would be the fault of the company that made the device rather than the doctor.
Manufacturing defects are variances between the intended design of the product and the end result. It also includes an important aspect of many medical devices: Sterility. Many medical devices have to be sterile when they are used. If the device gets contaminated with bacteria between its manufacture and its eventual use in a hospital, it can be the fault of the company that packed and shipped the device.
Do You suspect a Birth Injury?
If you suspect your child was injured before, during, or after birth due to medical malpractice, contact the attorneys at Gilman & Bedigian, LLC.