A birth injury can leave a family with heartbreak and financial turmoil. It can leave a child with a lifetime of setbacks and medical complications. If your family has been impacted by a birth injury resulting from medical negligence, it is important to know your legal rights.
At Doehrman Buba, our Indianapolis medical malpractice lawyers have more than 50 combined years of experience helping people who have suffered from birth injuries and other cases of medical malpractice. We represent clients throughout Indiana and nationwide.
Many times, the day a child is born is one of the most joyous moments in any parent’s lifetime. It’s a blessing that advances in prenatal diagnosis and obstetrical care have made most child deliveries safe and successful, but complications still do occur during delivery and pregnancy which could result in certain kinds of injury to the newborn. Certain circumstances can create a situation in which the harm to the newborn was avoidable. Within these circumstances, it’s crucial for parents to fully understand and safeguard their legal rights, as well as the baby’s.
Most legal cases involving birth injuries involve either a doctor’s failure to successfully respond or assess certain conditions of an injury to a newborn that was caused by prenatal care. This also typically involves the use of prescription drugs. Birth injuries or trauma affect 29 out of every 1,000 babies in the United States on average, and many times these tragedies are a result of doctors improperly handling a newborn or using certain delivery instruments incorrectly.
About Birth Injuries
Does your child display birth injury symptoms? What should you do once you find out your child has a birth injury? What is the prognosis for certain birth injuries? It makes sense for these questions to come to parents’ minds. This section aims to answer these questions by providing a broad overview of birth injury and everything that it entails.
Birth injuries generally encompass any kind of systemic damage that occurs to a newborn during delivery that is sometimes preventable. There are a few distinctions that are very important to keep in mind when it comes to understanding birth injuries. These two very similar yet different components of birth injuries include birth trauma and birth defects.
Birth trauma is the damage to a newborn’s organs and tissues as a result of physical pressure or injury during childbirth and entails the lasting side effects of birth injuries, and primarily includes mechanical damage. When a child displays birth injury symptoms, they are many times displaying the same symptoms of birth trauma.
Causes of Birth Injuries
As previously stated, birth injuries are a result of complications during delivery. An estimated five out of every 1,000 babies in the United States are injured during birth. Many birth injuries happen because of an obstetrician’s improper use of a medical technique or device. Other inexcusable reasons for preventable birth injuries can even include exhaustion, inattentiveness and inexperience. Many times, a more experienced physician who is prepared to manage a high-risk pregnancy/delivery is simply not available when a baby is delivered, making accidents more likely to occur during difficult deliveries.
Some common examples of preventable birth injuries include the following:
- Twisting and/or pulling an infant in an improper fashion during delivery
- Mishandling or improperly using birth-assisting tools like forceps or a vacuum extraction tool
- Administering the wrong type or wrong amount of a certain medication to the mother during pregnancy or labor
- Failing to properly monitor the infant’s distress or heartbeat
- Failing to schedule and perform an emergency C-section when necessary
It’s important to understand that not all birth injuries can create a successful legal claim. This is primarily because complications during delivery can occur when an obstetrician utilizes competent and reasonable skills that result in birth injuries which are unavoidable.
Common Types of Birth Injuries
There are several types of birth injuries which can be temporary or last a lifetime, and symptoms often vary. Sometimes a parent will not notice a birth injury until their child is in school and other times a birth injury is immediately obvious.
There are brain-related injuries, physical or muscle-related injuries, birth injuries related to infections, delivery injuries and Persistent Pulmonary Hypertension of a Newborn (PPHN).
Because there are so many different birth injuries that could be discussed, we have compiled a detailed list of the most cited birth injuries, including the following:
Brachial Plexus Injuries (BPI)
This is a birth injury that entails significant damage to the nerves that originate in the upper spine and go throughout the shoulder, neck, arms and hands. The amount of damage to these nerves ranges dramatically from mild to permanent, and about 10% of newborns with this birth injury do have a permanent disability. Neuropraxia is the mildest version of this injury and entails the nerve being stretched. The most severe version of BPI is called avulsion, which is when the nerve roots are completely dislodged from the spine causing the newborn to endure complete paralysis.
When a newborn breaks or fractures any bones, it’s commonly a result of a very difficult or complicated delivery process. A newborn’s clavicle is especially susceptible in these situations, and for the most part immobilization and time will treat the break.
This is a collection of blood below the covering of a portion of a newborn’s skull bone. For the most part, a cephalohematoma does not pose any threat to a newborn and will clear up with time.
This is the swelling of a newborn’s scalp or when the scalp appears discolored or bruised, and this is usually caused by pressure during delivery. It’s not life-threatening, and will more often than not heal on its own with time.
This birth injury occurs when a newborn doesn’t get enough oxygen and can occur when there is an oxygen deficiency in the newborn’s blood or if there is some kind of insufficient blood flow to a fetus or newborn. This can lead to a newborn experiencing labored breathing, seizures, pale complexion, shock or a coma. Perinatal Asphyxia can clear up with time or it can be a permanent neurological issue.
This is bleeding in the skull which occurs most often under the two innermost layers of a newborn’s brain covering.
When a blood vessel bursts in a newborn’s eye, which is typically created by any kind of variation of pressure during delivery. It creates a bright red area on the eye and clears up on its own.
This is when the facial nerve is either temporarily or permanently damaged, and a common symptom of facial paralysis includes lack of control over facial muscles. This is typically noticeable when an infant cries. For the most part, this birth injury will dissipate over time.
Spinal Cord Injuries
These birth injuries are more severe than others and sometimes caused by nerve damages, meningeal tears or the use of forceps. Paralysis and neurological problems can result from these injuries.
Approximately 2 to 3 out of every 1,000 children have cerebral palsy, and it is distinguished through weak muscles, spasms, and a lack of development in terms of motor skills. There is no cure for cerebral palsy, but there have been incredible medicinal breakthroughs in recent years.
There are several other very common birth injuries including Erb’s and Klupke’s Palsy, Shoulder Dystocia, as well as Meconium Aspiration Syndrome.
Causes of Birth Injuries/Trauma
Birth injuries, or trauma, are more common in developing nations throughout the world. About 2% of births in the U.S. are affected by physical injuries that aren’t at all related to any kind of congenital condition.
It’s common that birth trauma occurs more often with larger babies, especially if a large baby’s size conflicts with the size of the mother’s pelvic area. These kinds of deliveries sometimes require doctors to use their hands and other tools to ease the newborn’s passage through the birth canal, and these situations can cause neonatal injuries to occur.
According to the Lucile Packard Children’s Hospital at Stanford University, the most common conditions that cause birth injuries and trauma include the following:
- Babies who weigh over 8 lbs. 13 oz.
- Babies who are born before the mother’s 37th week of pregnancy
- The mother’s pelvis having the wrong size or shape for a safe delivery
- Dystocia (difficult delivery/labor)
- A prolonged labor
- Abnormal fetal position during delivery (baby in buttocks-first breech position)
Although these are the most common causes of birth injuries, they are many times closely related to another cause of birth injuries that generally leads to litigation – medical negligence.
Most birth injuries are caused by difficult labors, but many difficult labors can be prevented by monitoring the overall size of the baby in proportion to the mother’s birth canal. Observing the exact position of the baby weeks before labor and monitoring the umbilical cord and placenta to confirm proper position and health is useful.
Medical negligence can also occur when a doctor does not prescribe the mother with the necessary vitamin and nutrition regimen to make sure the fetus isn’t underweight or malnourished. If doctors fail to perform all necessary tests on a pregnant mother that also can be considered medical negligence, including group B strep infection tests.
What you can do to prevent birth injuries
The number one thing every pregnant mother wants is to ensure that their child is safe during pregnancy and safely delivered, but medical professionals are still human and they do make mistakes sometimes. As a pregnant mother or loved one to a pregnant mother, there are certain measures that can be taken to ensure a safe delivery that reduces the risks of birth injuries.
First and foremost, there are certain things that doctors and hospitals need to do more often to decrease the chances of preventable birth injuries, including implementing better practices in terms of identifying at-risk pregnancies and practicing for complicated deliveries.
Being proactive is the best thing that you can do to help decrease the chances of any preventable birth injuries. This primarily means being honest with your doctor as much as you can in terms of all your health conditions and any risks you may possess. It’s important to do research on your own and ask any questions you may have about your pregnancy and delivery.
You also are going to want to be proactive in deciding where you’d like to give birth and by whom, and you should ask health care providers about their own initiatives in terms of improving childbirth safety. You should also ask about their experiences with complicated deliveries because you will not want to undergo a prolonged delivery with someone who’s never dealt with one.
It’s also important to be vocal about how you’re feeling during delivery because even the slightest abnormalities, like a tingling feeling in your toes or a headache, can be signs of a complication. It’s always important to trust your own intuition if you think there is something going wrong, and always make sure you understand any kinds of risks and are comfortable with the procedures and treatments your health care team wants to perform during delivery.
Birth Injury Lawsuit
Every birth injury litigation scenario is different, but almost all of these cases require proof that medical providers and/or a pharmaceutical company did not give a mother or a mother’s baby an adequate amount of medical care or advice during pregnancy and/or delivery.
To find a medical professional legally at fault for a birth injury, a plaintiff generally must be able to prove that his or her conduct fell below an accepted standard of medical care, and many times an attorney will consult another medical expert who’s qualified in the same area of medicine as the defendant to establish the applied standard. The expert testimony would be used by the prosecutor to establish the commonly met standard recognized by the medical field of practice and to also establish a testimony stating how the defendant failed to meet the case’s standard.
Causation is something that is typically difficult to establish in most medical malpractice actions because any deviation by a health care provider from an applicable standard could or could not have been the result of a birth injury.
Elements of a Birth Injury Claim — Caregiver’s Malpractice
In general, if you bring a lawsuit against your obstetrician/caregiver for birth injuries to your child, then your attorney will be responsible for showing that:
- The defendant owed a legal duty or care to your baby and to you;
- The defendant breached this legal duty or standard of care by acting or failing to act in a manner in which a reasonably competent individual would have under certain circumstances;
- The defendant’s breach of the legal duty or standard of care caused harm to your baby (and to you in some cases).
An attorney will use expert witnesses to interpret the medical procedures and issues within the case in order to distinguish that the defendant(s) caused the birth injuries. Some of the things the expert will distinguish will include:
- What to expect during a normal pregnancy and delivery
- What could be been expected during the specific pregnancy in the case
- What actually occurred during the pregnancy in the specific case (including descriptions of any complications that occurred during the pregnancy/delivery)
- Descriptions of the physical and medical evidence of harm to the baby
- heir own opinion as to whether any harm as a result of a complication during pregnancy or delivery
Elements of a Birth Injury Claim — Mother’s Prescribed Drug Use
Sometimes a birth injury claim is based on a mother’s use of prescribed medication during pregnancy, and these claims are typically brought up against pharmacists, pharmaceutical companies and treating physicians. The basis of these claims is on a theory that the defendant(s) failed to warn the mother of the risk of taking the medication in question.
In a lawsuit based on a mother’s use of a legally prescribed drug during pregnancy an attorney needs to show that:
- The mother used the drug in question during her pregnancy
- The mother’s use of the drug was prescribed by a pharmacist, physician or other healthcare provider
- The child’s birth injury is unlikely due to heredity, disease, genetics or other factors (distinguished though expert opinion)
- The drug in question is capable of causing birth defects
- The drug in question actually did cause the child’s birth injury
Birth Injury vs. Birth Defect
It’s crucial to understand the difference between birth defects and birth injuries because it can be rather difficult to fully understand if certain complications in a newborn were caused by a birth injury during delivery or resulted from a birth defect.
A common example is when a child is born with cerebral palsy because the newborn could have potentially not had enough oxygen during labor, which would be an avoidable birth injury; or the cerebral palsy could have been an unavoidable birth defect.
It’s important to know details about both tragedies because the differences between birth injuries and defects can make or break any birth injury litigation.
Birth defects differ from birth injuries in that they involve harm to a baby that occurs prior to birth or the delivery process. Birth defects are typically caused by something which happened during or before a mother’s pregnancy. An estimated 7% of all babies are born with some kind of birth defect or irregularity.
Birth defects are created through a number of factors, and many of the causes of certain birth defects are still unknown. Heredity and environment (a mother’s illegal or prescribed drug use) are some leading causes. Although there are some situations in which a birth defect is caused by a mother’s own actions during pregnancy, like drug or alcohol use, there are other instances in which birth defects are a direct cause of outside factors.
A common example of a birth defect that’s caused by outside factors is when a pregnant woman takes medication that is known to cause birth defects. A number of drugs that were initially meant to help women during pregnancy have been found to include teratogens, which are agents or chemicals that cause birth defects in a child. Some medications that include teratogens include: Delalutin, a drug that helps prevent miscarriages; Bendectin, a medication that helps pregnant women combat nausea; Ortho-Gyno, a spermicide.
In certain situations, a birth defect could be deemed preventable if the physician had not prescribed these certain kinds of medications during a mother’s pregnancy. In other situations, a birth defect is caused by a mother’s own actions, in which any rights to a legal recovery for birth injury is limited or even non-existent.
Types of Birth Injuries We Handle
- Cerebral palsy
- Hypoxia and anoxic brain injuries
- Hypoxic-ischemic encephalopathy (HIE)
- Failure to perform a C-section
- VBAC (vaginal birth after cesarean) injuries
- Vacuum or forceps delivery complications
- Other labor and delivery birth complications
The consequences of a birth injury can be wide-ranging and long-lasting, including brain damage caused by lack of oxygen and paralysis. Learn more about what developmental delays to look for in your child that may be caused by lack of oxygen at birth. Your child may require expensive medical care for years. Our Indianapolis medical malpractice lawyers are here to help you obtain full and fair compensation for your medical bills, physical therapy, adaptive equipment, and other expenses you may have today and in the future.
Did Medical Malpractice Hurt Your Baby? Contact Our Indianapolis Medical Malpractice Attorneys Now
If someone in your family has suffered due to a birth injury, contact our Indiana medical malpractice attorneys today online or by telephone at (888) 494-3765 for a free consultation. There are medical malpractice statutes of limitations that may apply, so please get help as soon as you can.