Expecting a child, and the birth of that child, is an exciting time for parents. Unfortunately things can go wrong during pregnancy and birth. It is estimated that 7 out of every 1,000 babies born each year will suffer a birth injury. Depending on the injury and circumstances surrounding the injury, there may be liability on the part of the medical provider or facility.
It is important to distinguish between a birth injury and a birth defect. A birth injury happens during labor and/or delivery and is something that could have been prevented. Since it could have been prevented by proper medical care, there could be liability against the medical professionals involved and/or the facility. A birth defect is a problem with the baby’s genetics. Examples of birth defects include Down’s syndrome, heart issues, spina bifida and a cleft palate. While we may not know how birth defects happen, they are not preventable by proper medical care. Even if a doctor failed to diagnose a birth defect in utero, the birth defect was not caused by the doctor and therefore there is likely no liability.
Common Causes of Birth Injuries
Birth injuries are often caused by a lack of oxygen to the baby during the birthing process. It is estimated that oxygen deprivation occurs in 2 of every 1,000 births. This could occur due to:
- the umbilical cord being twisted for a long period of time
- the baby being in the birth canal for a long period of time.
- failing to provide the baby with supplemental oxygen immediately following birth
Another common cause of birth injuries is created by physical forces on the baby. This could include:
- manipulating a baby who is in the wrong position
- unnecessarily roughness when pulling a baby out during a vaginal delivery or after a cesarean section
- using forceps or a vacuum to pull out the baby
Birth injuries could also be caused by:
- not performing an emergency cesarean section
- providing the wrong medication or dosing to the mother during pregnancy and/or labor
- underestimating the size of the baby. For example, if a baby is over 8 pounds, 13 ounces then that baby is considered too large to safely be delivered vaginally
- failure to check for Rh compatibility between the mother and the baby
Birth Injuries
Birth injuries can range from minor to substantial. Examples of minor injuries include bruising from the use of forceps or a broken bone that will heal and leave no lasting effects.
Major injuries can lead to serious, possibly lifelong, conditions like cerebral palsy, spinal cord injuries, paralysis, encephalopathy, and nerve injuries. In these cases, care may be necessary for the rest of the baby’s life, and not just medical care. In the case of severe injury, when the baby reaches adulthood he/she may not be able to get a job or earn any money to provide for basic needs like shelter or food.
North Carolina and Medical Malpractice
Medical providers (doctors, nurses, anesthesiologists, midwives, nurses, etc.) and medical facilities (hospitals, clinics, doctors offices, etc.) owe their patients a duty, or standard, of care. The standard of care is the way a reasonable medical provider would act under similar circumstances. The duty of care includes things like monitoring the baby’s condition throughout the labor and delivery process. If an unhealthy situation arises, like a sudden drop of the baby’s heartbeat to a dangerous level, then medical professionals have a duty of care to deliver the baby as soon as possible.
The standard of care can vary depending on location. For example, the standard of care for an obstetrician in a big city like Charlotte, North Carolina would be different from that of a local general doctor in a small, rural town. Malpractice happens when a medical provider or medical facility fails to follow the established standard of care and that failure results in injury.
Since birth injuries can happen for a variety of reasons, many of which have nothing to do with medical malpractice, expert testimony from doctors and nurses will be a critical part of any malpractice case. Those experts will be necessary to testify about the appropriate standard of care in childbirth cases and whether or not the care met those standards.
The normal statute of limitations for medical malpractice cases in North Carolina is 3 years. There are exceptions to this, which is why it is important to consult with a Charlotte, NC attorney as soon as possible so that you file timely. One exception includes minors. Minors have 10 years in which to file a suit for a birth injury. This applies only to a minor bringing a claim however, not the parent. A parent has 3 years from the date of the birth injury to file suit. If the injury resulted in a wrongful death, the statute of limitations is only 2 years.
Damages
Compensatory damages (designed to compensate the victim) available as result of a birth injury may include:
- medical costs (doctors visits, hospital visits, surgeries, tests, medications, physical and/or occupational therapy)
- medical devices (wheelchairs, braces, orthotics, hearing aids)
- nursing care
- non-traditional educational costs (a special school)
- modifications to a home (ramps for wheelchairs, doorway enlargements for wheelchairs to fit through)
- pain and suffering
In North Carolina, punitive damages (those designed to punish the wrongdoer rather than compensate for identifiable losses) are available in medical malpractice cases but there is a cap on damages, with some exceptions. Punitive damages are capped at $250,000, or three times the amount of the compensatory damages award, whichever is greater.
Discuss Your Birth Injury Case with Our Charlotte, North Carolina Attorneys
Medical malpractice claims, particularly those involving birth injuries, are extremely complex. The sensitive nature of birth injuries, along with the need for expert testimony and the limits on damages add to the complexity. The Charlotte, NC lawyers at Rosensteel Fleishman, PLLC are experienced medical malpractice lawyers. They are available to discuss your birth injury with you and help you navigate the legal process if there is a legal claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation.