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There are possibly no two words more devastating to parents than “birth injury.” It is a blanket term that refers to injuries that occur before, during, or after birth. The results of a birth injury can be temporary, short-term, long-term, or permanent. In any event, the words “birth injury” mar forever a parent’s memory of bringing their little one into the world – a memory that most parents are lucky enough to treasure as one of the best experiences of their lives.
When parents are expecting, they may be aware of possible birth defects. Tests can identify Spina bifida, Down’s Syndrome, and other hereditary diseases in time for parents to make an informed decision about moving forward with the pregnancy or not. If they move forward with the pregnancy, parents know what to expect and have the time to prepare for it.
A birth injury, however, refers to an injury or condition that didn’t have to happen. Often, when it does happen, it is the direct result of medical malpractice. When this occurs, the family may face weeks, months, or even a lifetime of medical expenses, special care, and medically necessary equipment. In these situations, the family deserves compensation for the mistakes of others.
Common Birth Injuries in Tennessee
Below are some common birth injuries. However, parents are cautioned: this is not an exhaustive list. There is any number of other conditions and injuries that can be the direct result of medical malpractice.
Common birth injuries include:
- Broken bones
- Erb’s Palsy
- Cerebral Palsy
- Neck injuries
- Internal bleeding
- Spinal cord injuries
- Facial paralysis
- Shoulder dystocia
- Subconjunctival hemorrhaging or intracranial hemorrhaging
- Oxygen deprivation
- Perinatal asphyxia
- Death shortly after birth.
Common Causes of a Birth Injury
Birth injuries are caused by a doctor’s medical malpractice. They can be either the direct or the indirect result of that malpractice.
Malpractice that directly causes a birth injury is usually the easiest to detect because there are no intermediary steps between the doctor’s mistake and the child’s medical condition. This makes it very apparent that it was the doctor’s conduct that caused the birth injury, rather than something else. It often prevents the doctor and his or her medical institution from claiming that they were faultless for the devastating results.
Examples of malpractice directly causing a birth injury include:
- Cutting the newborn during a Cesarean section procedure
- Using too much force with an extraction device during an assisted delivery and breaking the child’s collarbone or pinching the nerves in their face, causing facial paralysis
However, just because there are intervening medical conditions between the malpractice and the birth injury does not mean that the doctors cannot be held liable. If their negligent conduct created the medical complication that then caused the birth injury, they can still be held accountable as the cause of the injury. This can be the case when:
- Nurses neglect the mother during labor, missing signs of fetal distress that lead to oxygen deprivation and the child being born with Cerebral Palsy
- A doctor prescribes a woman drugs for a medical condition that impair the development of her unborn child, causing it to be born with serious developmental delays
Birth Defects and Malpractice
Even birth defects – congenital medical issues caused by the child’s genetics – can lead to malpractice if the doctor fails to detect them or notify the parents. This failure to give the parents the information necessary to make an informed decision can make the doctor liable for the injury, even though they technically did not cause it.
When a child has sustained a birth injury, the symptoms are going to depend on the type of birth injury it was. Physical birth injuries have very different symptoms than neurological ones, though both types of injuries can drastically set back the child’s development.
When the birth injury was a physical one, the symptoms can be:
- Bruising or swelling
- Breathing problems that can be severe enough to force the child to be intubated, or can manifest themselves with other symptoms like coughing or wheezing
- Seizures or a lump or dent in the child’s head, both of which are common symptoms of a fractured skull
- Broken bones sustained during the delivery
- Paralyzed muscles, usually in the face or arms, that indicate potential nerve damage
- Fractured collarbone or dislocated shoulders from a traumatic birth
- Chronic pain, which newborns express by intensive and inconsolable crying while arching their back
- Eating problems, with symptoms like a lack of appetite, nausea, vomiting, or constipation
- An inability or a difficulty swallowing, which can lead to extensive drooling
While some of these symptoms are strong signs that the child has sustained a birth injury during his or her delivery, others are less reliable. A pediatrician can make the correct diagnosis. Seeing one that is unaffiliated with the hospital that delivered the child can be essential to get an unbiased opinion.
Some birth injuries cause brain damage or nerve damage that can impair a child’s growth. The most reliable symptoms for these kinds of injuries, though, are developmental delays that may not begin to appear for several months after the child’s birth. When the newborn is struggling to perform the tasks and activities that doctors expect of someone their age, it can be a strong sign that they are being held back by an injury they suffered at birth.
Understanding Medical Malpractice in Tennessee
Medical malpractice occurs when all of the following conditions are met:
- a medical professional (including doctors, nurses, physician’s assistants, pharmacists, anesthesiologists, etc.) owes a duty of competent medical care to the patient, including to both the mother and the infant; and
- the medical professional breaches this duty of care by providing medical care below what is considered the generally accepted standard of care; and
- The patient suffers an injury or illness due to a breach of this duty of care.
There are many examples of breaches of the generally accepted standard of care. A shortlist includes:
- failing to diagnose fetal distress
- failing to properly prescribe medications
- failing to fulfill a prescription, like providing a higher or lower dose than the doctor ordered
- failing to use properly sterilized instruments
- failing to use instruments properly
- failing to appreciate an infant’s size or position in utero and/or failing to amend the birth plan to take this into consideration
- dropping the baby
- performing or operating carelessly
- practicing medicine while high or drunk
- performing procedures beyond the skill set of the person providing the care.
When medical professionals cause injury to an infant, the child may require weeks, months, or years of treatment to address the injury. In some cases, the child will need a lifetime of ongoing medical care. Families may be surprised at the cost of this care. The good news is, in the State of Tennessee, the medical malpractice laws are designed to protect families who experience a birth injury by providing compensation when a medical professional’s conduct (or lack of conduct) results in a birth injury.
Birth Injuries and Defective Products
Medical malpractice is not the only cause of birth injuries in Tennessee. In some cases, the tools that the doctors and nurses use during a child’s delivery can break or be defective in ways that put the newborn at serious risk of injury. When this happens, the child can suffer a birth injury, but it would not necessarily be the fault of any of the medical professionals in the room at the time. Instead, it would be because of the negligence of the company that produced the defective medical device.
Medical devices, like other products, can be defective in three ways:
Out of these, marketing defects are the most common. They are also misleadingly named. Rather than having to do with marketing material that is used to sell the product, marketing defects have to do with the device’s instructional booklet or manual. If this material fails to warn the doctors who would use the device about hidden dangers that can hurt patients while the device is being used as it was intended, it can leave doctors powerless to avoid a serious injury.
Manufacturing defects are also shockingly widespread, especially when it comes to medical devices. These are problems with assembling the device that leave it with defects that make it different from the intended design. It also includes shipping defects that contaminate a sterilized product with harmful bacteria in between its manufacture and its eventual use in a hospital. In either case, a manufacturing defect can cause a birth injury.
Victims in these cases can still recover the compensation that they need and deserve. However, it would be through a products liability lawsuit, rather than one claiming that the doctor committed medical malpractice.
Infant Wrongful Death Cases
Birth injuries can be fatal if:
- They are traumatic injuries during an assisted delivery that affects the child’s head, brain, or spinal cord
- They involve oxygen deprivation or a reduced blood flow
While there are numerous other instances where a birth injury can be fatal for the newborn, these are among the most common.
Traumatic injuries are physical ones that often happen when a doctor negligently assists in a difficult or prolonged delivery. They can be fatal if they compromise the child’s head, neck, or spine in ways that cause permanent or severe damage.
When it is total or nearly complete, oxygen deprivation can also lead to a fatality if it is not corrected quickly enough to prevent the brain or organ damage from getting so bad that the child cannot survive. These same types of injuries can be caused if the child is breathing but his or her blood flow gets cut off. When the bloodstream cannot bring oxygen to certain organs or the brain, the results can be the same as when the baby is unable to breathe.
Parents who have lost a newborn child or who have suffered a stillbirth because of a doctor’s medical malpractice can file a wrongful death lawsuit under Tennessee Code § 20-5-106. This wrongful death statute is one of only about a dozen in the U.S. that expressly covers unborn children. This means parents can file a lawsuit on behalf of their deceased child if:
- The baby was born alive but died shortly thereafter from the aftereffects of a birth injury
- The baby was stillborn due to prenatal injuries suffered after the fetus had become viable
However, if the birth injury happened before the baby could be reasonably expected to survive outside the womb, the parents may be out of luck.
Real-Life Medical Malpractice
Rebecca Fielding and Enso Martinez lived a real-life medical malpractice nightmare. It started innocently enough. Rebecca and Enso planned to give birth to their son at home with the assistance of an experienced midwife. Unfortunately, the birth process did not proceed according to plan. On the advice of their midwife, Rebecca and Enso went to Johns Hopkins, seeking medical assistance.
Medical Malpractice is Committed & a Birth Injury Occurred
Rebecca was examined at the hospital, and it was determined an emergency cesarean section was warranted. Despite the consensus that Rebecca and Enso’s child was under stress and needed to be born quickly, the professionals at Johns Hopkins delayed the cesarean section by two hours.
Sadly, by the time the medical team at Johns Hopkins performed the necessary procedure, Rebecca and Enso’s son had suffered permanent brain damage due to lack of oxygen. He will require lifelong care due to Johns Hopkins’ choice to delay the necessary birthing procedure.
Consultation with Medical Malpractice Birth Injury Attorneys
Rebecca and Enso were devastated and overwhelmed. How would they ever be able to provide their son with the life long medical care he needed? Fortunately, Rebecca and Enso contacted the attorneys at Gilman and Bedigian, LLC. They meet with the couple and listened to their birth story.
Next, the attorneys consulted their own medical experts to determine whether the injury could be pinpointed. After all, Johns Hopkins doctors pointed to the time before Rebecca and Enso arrived at the hospital as the time during which the birth injury occurred. But the legal team at Gilman & Bedigian, LLC, learned from their experts this was simply not the case.
A Lawsuit Renders Full & Fair Compensation for the Birth Injury
Johns Hopkins’ legal team refused to take responsibility for their actions or inaction. With no reasonable settlement offer, the lawyers at Gilman & Bedigian, LLC took the case to trial. After all the facts were presented to the jury, the jury returned a verdict of $55 million dollars.
Now, Rebecca and Enso can make sure their son will get the ongoing medical care he needs.
Tennessee Statute of Limitations
As a general rule, Tennessee’s statute of limitations is only one year. However, there are certain exceptions to that rule. Families should contact a medical malpractice attorney as soon as possible to discuss the facts and circumstances of their case.
Parents are reminded that doctors carry medical malpractice insurance specifically because they recognize even the most careful among them could make a mistake that could change a family’s life forever.
Has Your Child Suffered a Birth Injury in Tennessee?
If you suspect that your child suffered a preventable birth injury due to the medical malpractice of one or more members of your birth team, contact us online today.