Birth defects involve harm to a baby that arose prior to birth. They are sometimes caused by something that happened during or before the mother's pregnancy, such as in cases involving a mother's use of the acne medication Accutane. Birth defects can also be caused by a number of other factors, including heredity. A chemical or agent that causes birth defects in a child, such as Accutane, is called a "teratogen." Other teratogens include: Delalutin, a drug administered to pregnant women for the prevention of miscarriages; Bendectin, a medication given to pregnant women, to fight nausea; and Ortho-Gyno, a spermicide.
While Accutane is known to contribute to birth defects, it is important to remember that the causes of many birth defects are unknown, and in other cases a birth defect can be caused by factors such as the mother's alcohol consumption or illegal drug use during pregnancy. In these instances, your rights to a legal recovery for a birth defect may be non-existent or extremely limited.
Proving Your Case
No matter what the particular facts of your case happen to be, in order to recover for a birth defect you will likely need to show that medical providers and/or a pharmaceutical company failed to give you or your baby adequate medical care or medication advice during pregnancy and/or delivery.
Generally, to find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard that will be applied, your attorney will most likely consult with and present the testimony of another medical expert, who is qualified in the same area of medicine as the defendant. This expert will indicate what standard or level of care is commonly met by those recognized in the profession as being competent and qualified to practice. Your attorney will present expert testimony not only as to the applicable standard of care, but also testimony establishing that the defendant failed to meet this standard in your case.
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.
Birth defect claims arising from use of a legally-prescribed drug (such as Accutane) 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 woman of the risk of taking the drug in question. If your lawsuit for birth defects is based on the use of a prescription drug such as Accutane, you will generally need to show:
What You Can Do
Any situation involving avoidable birth defects 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 defects and product 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, it is recommended that you meet with a product liability attorney sooner rather than later to evaluate your case.
Contact a qualified product liability attorney to make sure your rights are protected.