The birth of your child should be one of the happiest days of your life. When a medical professional’s negligence leads to the injury, though, it can shatter that happy moment. If this has happened to your family, you have the right to seek compensation for your damages.
Some examples of birth injuries that may warrant a legal claim include the following.
- Shoulder dystocia/Erb’s palsy
- Bone fractures
- Disfigurement from vacuum or forceps extraction
- Brain damage
- Cerebral palsy
- Facial paralysis
- Abnormal uterine bleeding
- Uterine rupture
Who is liable for a birth injury and how do I prove it?
Parents can bring a birth injury lawsuit against a doctor, nurse, doula, midwife, or even a medical facility that was responsible for your care and that of your newborn during delivery. However, the presence of an injury alone does not warrant taking legal action. The doctor must have acted negligently in order to be liable for the injury.
To prove liability, claimants must establish the following:
- Duty of care – the doctor-patient relationship establishes this duty in most cases.
- Breach of duty – also known as “negligence,” you must prove the doctor violated the standard of care (discussed below).
- Causation – it is not enough that the doctor was negligent. You must connect the negligence to your child’s injury.
- Damages – Your child – or the parents – must have suffered damages as a result of the injury.
What is the standard of care?
So just because your child suffered a birth injury does not automatically warrant a birth injury. Proving a violation of the standard of care is often the key in these cases.
Standard of care is the degree of care that a reasonable medical professional would give his patients. An example of this would be the doctor failing to diagnose or manage pre-eclampsia in the mother. If a doctor failed to diagnose or manage pre-eclampsia in the mother and a placental abruption occurred because of it, injuring or killing the baby, the doctor may be liable.
However, if the doctor followed the standard of care in managing the pre-eclampsia and the placental abruption still occurred, a family may not have a case.
These cases usually rely heavily on expert testimony; that is, securing the testimony of another doctor in the field who can testify as to the standard of care and whether the defendant followed it.
Damages Recoverable in a Birth Injury Case
When filing your birth injury claim, consider the full extent of your child’s injuries and the damages they cause. Generally, if the injuries are minor and temporary, and do not cause damages, the family may not have a valid birth injury claim. But if the injuries are serious, permanent, and/or cause significant damages, it may warrant a claim.
Damages that a family might recover in a case like this include the costs of medical care for the injury, rehabilitation costs, lost earnings to care for the child, cost of a caregiver, and more. Also discuss with a lawyer in your state your options for filing a claim on behalf of your child’s damages.
Primerus saves you time and effort finding the right attorney for your legal case. Use our Find a Lawyer feature to locate a birth injury attorney near you.