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Determining Medical Malpractice in Birth Injury Cases

Updated March 14, 2023 | By Wilson Kehoe Winingham staff

When to Pursue Birth Injury Lawsuits

Long before a baby is born, the expectant parents imagine their first days as a family:

  • Baby’s first bath
  • The ride home from the hospital
  • The beginning of new family routines

But the parents’ plans are completely derailed when a baby experiences a severe birth injury. In addition to the usual stresses of adjusting to life with a new baby, parents may suddenly face unexpected obstacles.

In this article, we’ll discuss what a birth injury is, how to determine if your child may be suffering from a birth injury, and what to do if you suspect medical malpractice. We will also discuss when and how parents should pursue birth injury lawsuits.

What is a birth injury?

A birth injury refers to any bodily damage done to the baby during childbirth. These injuries can occur during a normal birth, due to pressure during labor and delivery. Some risk factors may make injury more likely, such as prematurity, breech presentation, or macrosomia (high birth weight). These risk factors may lead to traumatic birth effects on the baby, including permanent or temporary injury. 

The most common birth injuries of newborns often include: 

  • Fractures (Breaks) – These typically occur when the baby has trouble descending through the birth canal, usually during a breech birth or as a result of shoulder dystocia. The collarbone, or clavicle, is an infant’s most commonly fractured bone. 
  • Nerve Damage – Usually occurring in the baby’s face or shoulder, nerve damage during childbirth can cause facial paralysis or loss of arm movement. This damage is usually temporary. 
  • Bruising/Swelling – These injuries are usually minor and not permanent. They include bruises, lumps under the skin, and blood under the skin or in the eyes. 
  • Brain InjuryIf the infant is deprived of oxygen for a prolonged period during delivery, it can result in a brain injury during birth and permanent brain damage like cerebral palsy.
  • Brain Bleeding – Brain bleeds in infants are not always symptomatic, but can cause seizures, lethargy, and trouble feeding.

What is the difference between a birth injury and a birth defect?

If you are considering pursuing a malpractice case because of your child’s symptoms, it is necessary to establish that they are due to a birth injury rather than a birth defect. Although these two phrases are similar, they actually refer to two very different types of disability. 

When a child is born with a birth defect, they may have many similar symptoms to a child with a birth injury. The main difference is that a birth defect originates in the womb, long before the baby is born. 

Most birth defects are caused by genetics. Examples of these include Down syndrome and cleft palate. However, birth defects may also be caused by a maternal condition, such as diabetes. Sometimes they are caused by a medication or other substance that the mother ingested while pregnant. 

On the other hand, a birth injury usually occurs at the time of birth. It may be caused by negligence or malpractice, but it may also occur during a normal childbirth. 

Learn more about the difference between birth injuries and birth defects here

How can I tell if my child has a birth injury?

If your child has a disability, you may suspect that a birth injury caused it.  You may be able to see the disability right away, or you may later notice  that your child has developmental delays. These symptoms can appear immediately after birth and may indicate a birth injury: 

  • Difficulty with feedings
  • Weak reflexes
  • Seizures
  • Low heart rate
  • Low oxygen levels
  • Excessive and/or high-pitched crying

If your baby doesn’t show signs of a birth injury right away, they may show up as the baby gets older.  For example, you may notice that they have trouble focusing their eyes, supporting their own head, or responding to their parent’s voice over the first few months of your baby’s life. 

As they reach their first year and beyond, they may also fail to reach more major  milestones, such as standing, walking, and talking. They may later have trouble socializing, following directions, throwing a ball, or using the toilet. 

If you notice these symptoms in your child, and you suspect that they were caused by an injury at birth, you may be entitled to compensation if the disability is due to malpractice. 

How do I know if a disability is malpractice? 

For a disability to be considered the result of malpractice, the doctor must have acted negligently. They must have taken an action – or failed to take an action – that deviated from the typical standard of care

Medical malpractice includes failure to diagnose (or a delayed diagnosis), incorrect treatment, or a lack of information. Medical negligence during childbirth cases may look like:

  • Failing to inform the mother about the risks of a treatment option, such as using forceps or vacuum assistance
  • Failing to diagnose the mother with a uterine rupture in a timely manner leading to a delayed cesarean delivery and oxygen deprivation for the baby.
  • Misuse of drugs such as pitocin and misoprostol to augment labor despite contraindications. 

Learn more about the criteria needed to establish medical malpractice here.

What steps should I take if I suspect medical negligence? 

If you suspect your child may have birth injuries that could have resulted due to medical negligence, it’s important to act immediately to ensure you get the compensation you deserve. The first step you can take is to discuss your child’s symptoms with another healthcare provider. Your child’s pediatrician can assess your child to rule out other conditions. It is also a good idea to check with another OB/GYN to assess whether your doctor acted within the typical standard of care when delivering your child. 

Once you’ve spoken with your child’s pediatrician and another trusted healthcare provider and decided to pursue legal action, the next step is to hire a lawyer to investigate. The lawyer you choose should be familiar with birth injury lawsuits and have a good track record of adjudicating these cases. Together with your lawyer, you’ll collect and review documentation of your prenatal care, birth, and any relevant medical records that could demonstrate birth injury and malpractice.

Finally, your lawyer will bring legal charges against the medical facility and provider who was negligent. 

Reach Out To The Experienced Birth Injury Malpractice Lawyers at WKW

If you suspect your child has suffered from a birth injury caused by malpractice, a malpractice lawyer at Wilson Kehoe Winingham can help you get the compensation you deserve. The lawyers at WKW are experienced with birth injury cases. They can help you determine whether your provider failed to provide adequate care. Call 317.920.6400 or fill out an online contact form for a free, no-obligation case evaluation. 

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