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Birth Injury - Overview
In medical malpractice actions, causation is sometimes a challenge to establish. Specifically, your attorney must show that your health care provider's deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes, the health care provider's deviation from the standard of care may not have caused the plaintiff's eventual injury, and vice versa.
Following are some specific aspects of the two main types of birth injury lawsuits.
Elements Of A Claim - Caregiver's Malpractice
If you bring a lawsuit against your obstetrician, other caregivers, and/or a medical facility for birth injuries to your child, it will be your attorney's responsibility to show that:
- Defendant (which can include an obstetrician, physician, nurse, medical facility, pharmaceutical company, medical device manufacturer) owed a legal duty of care to your baby (and to you, in some cases);
- Defendant breached that legal duty or standard of care by acting or failing to act in a manner in which a reasonably competent individual would have, under the circumstances;
- Defendant's breach of the legal duty or standard of care caused harm to your baby (and to you, in some instances).
In order to establish that birth injuries were caused by the defendant(s), your attorney will most likely use expert witnesses to comment on and interpret complex medical procedures and issues in your case, including: what to expect during a normal pregnancy and delivery; what could have been expected during the pregnancy in your case; what actually occurred during the pregnancy in your case (including specific description of any complication during pregnancy or delivery); physical and medical evidence of harm to the baby; and opinion as to whether any harm resulted from complication during pregnancy or delivery.
Elements Of A Claim - Mother's Use Of Prescribed Drug
Your claim for birth injury may be based not on complications during delivery, but on the mother's use of a prescribed drug or medication during pregnancy. These claims are typically brought against pharmaceutical companies, pharmacists, and treating physicians, and are usually based on a theory that the defendant(s) "failed to warn" the mother of the risk of taking the drug in question. If your lawsuit for birth injuries is based on the mother's use of a legally-prescribed drug during pregnancy, you will generally need to show:
- The mother used the drug in question during pregnancy
- The mother's use of the drug in question was prescribed by a physician, pharmacist, or other health care provider
- The birth injury is not likely due to genetics, heredity, disease, or other factor (this is usually accomplished through expert opinion)
- The drug in question is capable of causing birth defects
- The drug in question actually caused the birth injury
Damages
If a child suffers harm due to an avoidable birth injury, damages awarded as part of a successful lawsuit will typically go to the child, sometimes in the form of a trust.
Recent legislation has limited the amount of certain kinds of damages that a plaintiff can recover in a medical malpractice case. However, a number of categories of damages are available, and many are not limited to a specific amount. These can include compensation for medical expenses, pain and suffering, and loss of future earning capacity.
Where a child is born with a birth defect, the parent may also bring a medical malpractice action against the obstetrician and/or the hospital at which the delivery occurred. The parent may be able to bring a lawsuit for his or her own emotional distress that arose from the baby's birth defect, above and beyond liability to the child.
Getting Legal Help in a Birth Injuries Case
Any situation involving avoidable birth injuries should be evaluated for a potential legal claim. Due to the complexity of the facts and legal issues involved in your case, discussing your situation with an attorney who is experienced in the area of birth injury and medical malpractice liability is the best way to ensure a thorough evaluation of the likelihood of your claim's success and its potential value. Especially in light of deadlines for filing your lawsuit, meeting with an attorney sooner rather than later to evaluate your case is recommended.
Go here to learn more about the role of an attorney in a medical malpractice case.
Click here to search for an experienced medical malpractice attorney near you.
See also:
FAQs
- Are there any rules prohibiting parents from having their children born at home?
- If the delivery is at a hospital, may the father or a sibling be present?
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