Few things in life are as eagerly anticipated as the birth of a child. Whether the child is the first in the family or a happy addition, parents, grandparents, relatives, and friends eagerly anticipate the due date or, more commonly these days, the scheduled date of birth. Families envision visitors at the hospital, cooing over the brand new family member, bringing flowers and snacks and lots and lots of love.
No family imagines the hours and days after birth as a time filled with tears, anger, frustration, and sadness. Unfortunately, for families whose infant suffers a birth injury, this is often what happens. Families struggle to deal with their new reality, that their infant has been injured. It is not uncommon for a hospital to represent this sort of thing ”just happens” sometimes. But this doesn't make it true.
Understanding Medical Malpractice in South Dakota
In South Dakota, medical Malpractice is a legal concept that holds medical practitioners accountable when they make mistakes that result in an injury. The elements of medical malpractice can be broken into two separate sections: expectations of medical professionals and malpractice of medical professionals.
The first part of the elements of medical malpractice spells out what we expect of our medical professionals when we are seeking treatment for an illness or an injury or for medical procedures, like care before, during, and after giving birth. The first set of elements include:
- a medical professional, such as a doctor, nurse, anesthesiologist, pharmacist, physician's assistant, etc.
- has a duty to a patient
- to provide a certain standard of care
- generally accepted in the medical community.
The second set of elements describes what happens when malpractice occurs. These elements include:
- the medical professional or professionals in question
- provided care that fell below generally accepted standards for medical care; and
- this failure to provide generally accepted medical care
- resulted in injury or death.
How Medical Malpractice Can Cause a Birth Injury
A birth injury is often the result of medical malpractice on the part of the hospital or medical staff. Examples of the many ways that birth injury can occur include:
- using instruments that have not been properly sterilized
- allowing inexperienced staff to perform medical procedures in excess of their skillset
- medical professionals practicing while drunk or high
- carelessly handling the infant, such as dropping the infant after delivery
- failing to appreciate the infant is experiencing fetal distress in utero
- aggressively using of forceps to remove the infant
- failing to appreciate the infant is in a difficult position in utero
- providing the wrong prescription or the wrong dose to the mother or infant before, during, or after delivery
- prescribing a pregnant mother drugs that imperil her unborn child
- failing to monitor the situation carefully and, thus, missing important information that would have otherwise informed medical professionals about alternate and safer treatment.
Unfortunately, the mechanisms that can lead to birth injury are almost endless. However, the malpractice that causes a birth injury tends to fall into one of three categories:
- those that happen during the pregnancy
- those that happen in the delivery room
- failing to disclose a genetic defect.
Occasionally, a birth injury happens during the mother's pregnancy. These incidents of malpractice are often complicated because the doctor's poor conduct rarely directly harms the fetus. Instead, it usually sets in motion a serious of medical complications and chemical reactions that impairs the fetus' development. Drawing the line of causation back to something that the doctor did during the pregnancy can be difficult.
Some of the most severe, devastating, and avoidable birth injuries happen in the delivery room. These are often some of the most blatant acts of malpractice because of how directly they impact the child and cause a significant medical setback. However, other incidents of malpractice in the delivery room can be more difficult to detect, especially when it was not a negligent act but a negligent omission that caused the birth injury. This can require comparing the doctor's conduct to what the doctor should have done, given the circumstances and what was known at the time.
Finally, a doctor can commit medical malpractice and be held liable for a newborn's medical condition if they fail to take reasonable steps to detect a genetic disorder that will plague the child, once he or she is born. This is true, even though the medical condition was caused by the child's genetics, rather than anything that the doctor did. By failing to notify the parents of the high likelihood of the child being born with a serious congenital defect, a doctor can keep them from making an informed medical decision, and that can amount to malpractice in South Dakota.
Defective Medical Equipment Can Also Cause a Birth Injury
A less common, but still existent, cause of birth injuries in South Dakota is a defective medical device.
Over the course of delivering a child, doctors and nurses use dozens of medical devices. These range from the highly complex, including drugs like Oxytocin and extraction devices, to basic medical equipment like gloves, towels, and surgical gowns. When the child is delivered with a Cesarean Section procedure, the number and complexity of the medical devices that healthcare professionals use to deliver the child increases exponentially.
Any one of these devices can be defective. If one is, it can cause a birth injury or can break and complicate the delivery procedure in ways that can put the mother and newborn child at risk of harm.
Medical devices and other equipment can be defective in the following three ways:
Defective designs are rare, but they cause widespread injuries because they leave important and often-used medical devices with a design problem that needlessly increases the risk of an injury. Manufacturing defects are variances between the product's design and the end result. These defects can increase the likelihood that the device breaks while in use. Manufacturing defects also include instances where a device is sterilized before being shipped to a hospital, but gets contaminated with harmful bacteria while en route.
Advertising defects are the most common, though. They fail to warn doctors and other healthcare professionals of the dangers of using the device. Without adequate instructions, doctors can accidentally put their patients at risk of harm.
When any of these defects ends up causing a birth injury to a newborn child, the victim and his or her parents can file a products liability lawsuit against the company responsible for the defect and recover the compensation they deserve.
Common Birth Injuries in South Dakota
Birth injuries occur in utero and during the delivery and birth. Common injuries resulting from medical malpractice include but are not limited to:
- Facial paralysis
- Shoulder dystocia
- Subconjunctival hemorrhaging or intracranial hemorrhaging
- Spinal cord injuries
- Erb's Palsy
- Broken bones
- Cerebral Palsy
- Oxygen deprivation
- Perinatal asphyxia
- Death shortly after birth.
What are the Symptoms of a Birth Injury?
There are a lot of different symptoms that a birth injury can cause. Some of them are so readily apparent that they can be difficult to miss. Others are far less reliable. Still others may not show themselves for months after the child's birth.
The symptoms that are the easiest to recognize are often the birth injuries, themselves. When certain physical birth injuries happen, the symptoms can be:
- Broken bones
- A fractured skull, which can often be diagnosed by symptoms that include seizures or dents or bumps in the child's head
- A dislocated shoulder
- Fractured collarbones
- Muscle paralysis
- Life-threatening breathing problems
In other cases, though, the symptoms can be delayed for several months. This is often the case when the birth injury was a mental or neurological one, rather than a physical one. These birth injuries may not have any symptoms right after the child is born. Instead, they manifest themselves in developmental delays that begin to appear after a few months. When children fail to perform the tasks that doctors expect them to be able to accomplish at certain ages, it can be a sign that the child is struggling to overcome brain damage suffered from a birth injury.
Finally, there are some symptoms that may indicate that the child is suffering from a birth injury, but may also be a sign of a different medical condition. These can include:
- Bruising or swelling immediately after birth
- Relatively minor breathing issues like coughing or constant wheezing
- Eating disorders, like constipation, weak appetite, nausea, or vomiting
- Swallowing problems, which can lead to lots of drooling
- Sensory issues, like lack of hearing or eyesight
- Chronic pain, which newborns show by crying uncontrollably while arching their back
One Family's Birth Injury Story
Rebecca Fielding and Enso Martinez, like all parents, eagerly anticipated their son's birth. They had engaged in lengthy discussions and careful birth planning. Together, Rebecca and Enso planned on birth at home, with the assistance of a midwife. They felt this was the best approach for their family. However, Rebecca's labor and delivery did not go as planned. On the advice of their midwife, Rebecca and Enso went to Johns Hopkins for the delivery of their son.
Medical Professionals Commit Medical Malpractice
When examined at Johns Hopkins, it became clear that Rebecca and Enso's son was suffering from distress. It was obvious to everyone an emergency cesarean section was necessary. Despite this medical emergency, medical professionals delayed the procedure for two hours.
Unfortunately, during this two-hour period, Rebecca and Enso's son suffered brain damage that will require a lifetime of care. Rebecca and Enso's son suffered brain damage that reduces his mental capacity, impacts his physical mobility, and results in seizures that will likely last a lifetime.
Medical Professionals Deny Responsibility
Surprisingly, the medical professionals at Johns Hopkins refused to take responsibility for Rebecca and Enso's son's injuries. They took the position the damage occurred at home and their own choice to delay the c-section by two hours had absolutely no impact on Rebecca and Enso's son's disabilities. Fortunately for Rebecca and Enso, and their son, Rebecca and Enso contacted the attorneys at Gilman & Bedigian, LLC.
Medical Malpractice Birth Injury Attorneys File a Lawsuit
These lawyers, along with their medical malpractice legal team, know when to not take no for an answer. When the lawyers for the medical team at Johns Hopkins refused to settle, the lawyers at Gilman & Bedigian, LLC took the case to trial. While most cases settle at some point during the process, some cases need to be tried. This was one of those cases. After a full trial with testimony from both sides, the jury returned a verdict of $55 million dollars.
Full & Fair Compensation Delivered
With this verdict, Rebecca and Enso know their son's medical needs will be taken care of for the rest of his life. No amount of money can make up for the loss of the son they were meant to have, this money does provide the family not only with the means to provide for their son but also the knowledge that the medical team was held accountable for their malpractice. Presumably, other families won't suffer the same fate because this jury's verdict spoke volumes.
Understanding the Statute of Limitations
In the case of medical malpractice in the state of South Dakota, the statute of limitations is two years. Practically speaking, this means the family of a child who suffered a birth injury has two full years to file a claim against those who caused the injury.
Infant Wrongful Death Law in South Dakota
Infant wrongful death cases are the most devastating and severe type of birth injury case that parents can go through. The loss of a newborn child is among the most traumatizing things that parents can face.
Thankfully, South Dakota has some of the most generous protections for parents who have lost a child to a doctor's medical malpractice in the country. This is chiefly because South Dakota is one of only about a dozen states to have a wrongful death statute, South Dakota Codified Law § 21-5-1, which explicitly covers unborn children.
This means that parents in South Dakota can file a wrongful death lawsuit if:
- Their child is born alive but dies soon thereafter from a prenatal injury
- The child is stillborn because of a birth injury sustained after they had become viable
- The child is stillborn because of an injury sustained before viability
Most other states have wrongful death laws that only covered a deceased “person,” leaving it up to the courts to determine what that meant. The vast majority of courts have determined that both live-born babies and viable stillborn fetuses created wrongful death rights in the parents. South Dakota's law, therefore, extends this legal right further and allows parents of non-viable fetuses to recover compensation for their losses through a wrongful death claim.
This is crucial for parents who have lost a child through one of the following major causes of a fatal birth injury:
- Traumatic birth injuries during the delivery, often during an assisted delivery and often to the baby's head or spine
- Hypoxia, or a near-total oxygen deprivation that leads to organ or brain damage
- Loss of blood flow, which can also trigger organ or brain damage as blood is kept from bringing oxygen to the affected area
Do You suspect Your Child Suffered a Birth Injury in South Dakota?
If you suspect your child may have suffered a birth injury in South Dakota, contact us online immediately to schedule a free initial consultation.