Expectant mothers and their soon-to-be newborns are particularly vulnerable during active labor and childbirth. While giving birth is much safer now than it was before the advent of modern medicine, complications still arise and sometimes cause birth injuries to infants. Some birth injuries are unavoidable, even with the highest level of care. But if your child suffered a serious injury at birth due to the negligence of the obstetrician, other medical staff, pharmaceutical companies, or the facility itself (whether it's a hospital or birthing center), you may be able to file a medical malpractice lawsuit.
Most defendants would rather settle a medical malpractice case out of court, since it minimizes publicity and avoids a costly and time-consuming trial. As a parent, you also may decide that settling a birth injury claim makes more sense than litigating it in court, especially if your case is strong on facts and evidence. But it's crucial that you understand the extent of the injury and the likely cost of physical therapy, specialized equipment, in-home care, lost wages, and other financial hardships related to the injury. Learn more about birth injury lawsuit settlements, and how to get started with your claim, below.
Birth Injury Claims: The Basics
Birth injuries occur in the process of childbirth and are not to be confused with birth defects, which are irregularities that happen prior to birth (often during or even before pregnancy). In order to prove her claim, the plaintiff must show that the defendant(s) breached a legal duty or standard of care by acting or failing to act as a reasonably competent person would in a similar situation, and that this breach injured her child. The hospital or birthing center usually is the primary defendant in such a claim under the doctrine of "respondeat superior," but individual providers may be sued as well.
Birth injuries may result from inadequate oxygen to the baby's brain, as is the case with cerebral palsy; nerve damage from too much force, as with Erb's palsy; and a range of injuries resulting from the baby's shoulder getting stuck inside the mother, also known as shoulder dystocia.
The first step in getting to a settlement is to file a lawsuit, making sure you thoroughly research the costs you likely will incur, including lost wages from any time off work and the lifetime cost of special care and ongoing medical needs.
Determining a Settlement Amount: The Life Care Plan
If your child has suffered a birth injury, you may be offered a settlement amount by a hospital representative early in the process. It may seem like a lot of money, but you really need to do your homework (preferably with the help of legal counsel) in order to accurately calculate your current and future monetary losses. Your attorney most likely will help you craft a detailed "life care plan" to account for these costs. Even if a lawsuit is not involved and the provider offers a settlement upfront, you will want to draft a life care plan before agreeing to any amount.
The Cerebral Palsy Family Network provides a checklist of the various factors that comprise a life care plan. These factors may include daily care in a specialized facility, or even at home; ongoing medical evaluations and therapies; special equipment or modifications to aid with independent living; and other expenses. In addition, a surviving parent who stays home to care for his child may claim lost wages.
The total costs calculated in your life care plan will make up the bulk of your settlement amount, but you also may seek compensation for non-monetary damages such as pain and suffering or loss of enjoyment of life . Keep in mind that most states have limits on medical malpractice damages, which are reflected in settlements as well, but amounts may be adjusted to reflect inflation and other cost increases.
Each case will vary depending on the needs of your child and the willingness of the defendant(s) to reach a settlement. If you believe the amount offered is inadequate, you may decide to pursue a trial instead.
Speak with an Attorney About Your Birth Injury Claim
Adjusting to life with a newborn is difficult enough, particularly if your child has suffered a serious birth injury and has special needs. If you believe the injury is the result of negligence by health care providers, or you're not sure, it may be in your best interests to contact a medical malpractice attorney to learn more.
Contact a qualified medical malpractice attorney to make sure your rights are protected.