Birth Injury Information
by San Diego attorneys Estey & Bomberger
Birth Injuries
San Diego birth injury attorneys Estey & Bomberger can help if you've had a child injured due to medical negligence on the part of the hospital. We offer free consultations and if we take your case, there are no fees unless we win. This site is dedicated to helping those families who have been affected by a birth injury.
What is Birth Injury:
When undergoing the process of birth, a baby may suffer serious physical injury from the simple result of being born. Also known as birth trauma, this can severely deform, handicap, and even kill a child in the womb. An infant may sustain trauma within the birth canal or outside, before birth, during, or even afterwards. The results are detrimental, causing lifelong physical, developmental, and cognitive complications, like brain damage, Erb’s palsy, and cerebral palsy. Newborns may suffer serious neurological problems like autism, epilepsy, and mental retardation. Scarring and fractured bones are also common.
In general, birth injuries occur when the flow of oxygen and blood throughout the body is restricted during the birthing process. It is integral that doctors and other medical personnel are acutely aware of the signs and symptoms of such an event occurring, and are able to respond quickly to increase oxygen. Their inability to act quickly and effectively could cause serious, permanent birth injuries in the child, and birth trauma in the mother. When a physician or other medical professional does not act appropriately to increase blood flow and oxygen circulation throughout the body, it is called medical negligence. One of the methods utilized to correct such problems in an unborn child is to perform a caesarean section, which can prevent such long-term effects upon the child and mother. Those who can be deemed responsible for medical negligence can be held liable for the emotional and financial losses suffered by the infant and family. These losses can be extremely painful and devastating, making it essential to seek out a committed and experienced attorney that is dedicated to protecting the rights of birth injury victims.
General Causes of Birth Injuries:
Often, the baby’s position within the womb or size may cause the initial implications leading to birth injury. Some of the conditions that are associated with birth injury include the following:
- Babies with a large birth weight, usually larger than 8 lbs.
- Prematurity indicated babies born before 37 weeks. Premature babies have a much more fragile skeletal structure and are therefore more easily injured.
- The mother’s own body may play a part in initiating a problem in the birthing process. Cephalopelvic disproportion occurs with tne size and shape of the mother’s pelvis is not adequate for the baby to be born vaginally.
- Difficult labor or childbirth, known as dystocia, may also increase chances of birth injuries.
- Prolonged labor is another factor in birth injury cases.
- If a child is delivered in an abnormal way, such as in breeching, the newborn may not receive the most ideal amount of oxygen, causing injuries.
Risks and Symptoms:
The group with the highest rates of birth injuries was infants with diabetic mothers, due to large body size, or macrosomia. Occurring in about 33% of all diabetic pregnancies, marcosomia can still affect children. In jury rates are reduced when glycemic control approximates blood glucose levels. Mothers who have more than one child will experience similar problems, since each successive child is usually larger than the first. A larger infant may also develop if birth does not occur until past the due date. When such fetuses are large, the uterus is stretched and increases chances of postpartum hemorrhages. Larger infants have a 15% mortality rate, which is exceptionally larger when compared to a 4% mortality rate in normal-sized infants. Clearly, newborn size plays a key role in causing birth injuries.
Generally, birth injuries occur most often in difficult vaginal births. These will involve prolonged labor, use of a vacuum extractor or forceps, and sometimes occur during a Caesarian delivery. Injuries may occur during delivery, labor, or even neonatal resuscitation. Babies born much earlier than their due date (pre-term) are at exceptionally high risk for birth injuries.
Not all birth injuries can be prevented, but women can take steps to keep their baby as safe as possible prior to birth. Injuries that occur during that time may be due to the negligence of medical staff rather than the mother.
Types of Common Birth Injuries:
Birth injuries may be mild or severe, with much in between. Newborns may suffer a range of injuries, from mild bruising to brain damage. It is important to seek the assistance of an experienced birth injury lawyer if you fear you or a loved one have been the victim of medical malpractice.
- Caput Succedaneum- This condition is the dangerous swelling of the newborn’s scalp, which is comprised of extremely soft tissues. This occurs when traveling down the birth canal. The bruising is usually only mild, and will disappear after a few days. The process of vacuum extraction is often a factor in causing such problems.
- Cephalohematoma- Cephalohematoma refers to the bleeding between a bone and its fibrous covering, typically seen on a baby’s head. It will appear as a lump on the baby’s head. While this injury is usually mild, disappearing in a few weeks as the body reabsorbs the body, but some victims of cephalohematoma further suffer from jaundice as the red blood cells break down.
- Bruising/Forceps Marks- Babies will sometimes suffer mild to moderate bruising as a result of passing through the birth canal and making contact with the mother’s pelvic bones. The baby’s head may experience additional temporary bruising if forceps are used by the medical specialist. In more severe cases, forceps will cause depressed skull fractures, which often demand surgery. Babies delivered through a vacuum may suffer some bruising or scalp laceration.
- Subconjunctival hemorrhage- This kind of hemorrhage is the breakage of small blood vessels in the newborn’s eyes. It will appear as a bright red band around the iris in one or both eyes. Because there is no real physical damage to the eyes in this condition, the redness is absorbed by the body within a couple of weeks or less.
- Facial Paralysis- During birth, pressure placed on the newborn’s face—perhaps caused by the use of forceps—can be detrimental to the facial nerves. Seemingly unnoticeable at first, the injury is first seen when the baby cries. There is no movement in the damaged side of the face, and the eye will not close. In mild cases, the nerve is merely bruised and will become normal in a few weeks. In severe cases, surgery is necessary to repair the damaged facial nerves.
- Brachial Palsy- This injury includes Erb’s Palsy and Klumpke’s Palsy, occurring when the group of nerves that controls movements of the arms and heads (called the brachial plexus) is injured. In most cases, this injury results in “shoulder dystocia”, a term describing birth difficulties which result when the baby’s shoulders harm its passage through the birth canal. In cases where the baby only retains minor bruises, full recovery will be achieved in less than three months. In severe cases, newborns will suffer permanent nerve damage. Physical therapy and other treatment may be required.
- Fractures- Collarbone and clavicle fractures are the most common fractures experienced during delivery and labor. A clavicle may snap during breech deliveries, bending the shoulder; the newborn is unable to move or flex the arm. Despite the seriousness of this injury, healing does occur quickly. A new bone will form on the clavicle within the first 10 days. A bandage or splint may be required if movement is especially limited and painful.
- Brain Injury- This is an incredibly serious injury, resulting from blood loss, lack of oxygen, blunt trauma, force, or the twisting compression of the umbilical chord. Resulting injuries include brain damage, seizures, cerebral palsy, or severe mental impairment.
Frequently Asked Questions:
- What are the most common injuries to occur during the birthing process?
The most common types of injuries to occur during birth are due to the extreme amount of pressure being applied to their fragile heads. Common injuries include bruising, swelling of the skull, bleeding between the skull and scalp, paralyzed face, and broken blood vessels in the eyes. Luckily, most of these injuries are mild, and will go away on their own within a few weeks to months. Other injuries may be even more detrimental to the child’s long-term health. In backwards births (called breeching), medical personnel may have a difficult time delivering the baby’s shoulders. This will cause a sever injury called shoulder dystocia. Erb’s palsy may also occur, as well as broken collarbones or clavicle. If oxygen is restricted during delivery, a child will suffer from permanent brain damage—including cerebral palsy.
- Will I be able to tell if my child has a birth injury?
In most cases, you will be able to tell if a child has suffered a birth injury. Most are fairly obvious. One may notice bruising, lumps on the face or head, and swelling. Watch your child when they cry. If only half the face moves, they may have suffered from a paralyzed face. Some problems are harder to spot, like Erb’s palsy or broken bones. Cerebral palsy and other brain injuries are hard to notice so early on. If your child struggles with simple tasks-- reaching and grabbing things, crawling and walking, rolling over, hearing, seeing, speaking—your child may be suffering from cerebral palsy. Other signs of cerebral palsy are seizures and mental retardation. If any serious birth injuries are noticeable, it is essential to contact an experienced serious birth injury lawyer immediately.
- I’m ready to place a birth injury lawsuit. What happens?
Depending upon a number of circumstances, your lawyer will file a lawsuit against your doctor, hospital, midwife, or any other potentially responsible party. Any healthcare providers will then notify their insurance concerning medical malpractice. From this point, the lawsuit is handled between your attorney and the medical malpractice insurer and defense attorneys.
All suits begin with collecting information on each other, called “discovery”. The opposing side will request copies of your child’s medical records and any other pertinent documents to aid in their research. Questions and answers are exchanges through professional legal “interrogatories”, and your child will most likely be required to go through an Independent Medical Examination (IME). If your child has undergone brain injuries, they will also experience an MRI. The opposition’s attorney(s) will also question the parents of the injured child.
In most cases, settlement is made during the step of information collecting. Speak to your lawyer before accepting appropriate settlement amounts.
- How long do I have to file a birth injury lawsuit?
All birth injury lawsuits must be filed within a certain period of time. If this time limit is not observed, you could lose your chances of filing, period. It is essential to contact your attorney before filing a suit, for they will be well-versed in all deadlines for your state and county. These time limits are usually state-specific, and commonly known as statutes of limitations. When the lawsuit involves an injured child, the statute of limitations will usually be much longer. In adult injury cases, the victim has an average of two years to file. Children may file two years after their eighteenth birthday in some states. These times differ enormously, so it is integral to speak with an attorney.
- How much can we recover for damages?
In general, birth injury cases are high on the damages rating, since you are suing for the child’s lifetime of losses. In a 2002 study, insurers paid out an average of $3.66 million birth injury cases in California alone.
Birth injury cases must take into account a long list of damages, making the final settlement rather hefty when compared to other personal injury cases.
The largest list in this category deals with economic damages. These costs include all costs associated with the injury: medical care, rehabilitation, physical therapy, special education, nursing assistance, medications, etc. This also includes loss of earnings or future loss of earnings due to being limited by the injury.
Additionally, victims of birth injury can claim monies for physical pain, emotional pain and suffering, disfigurement, loss of enjoyment of life, and pure inconvenience. Non-economic damages in California are limited to $250,000.
Although difficult to obtain, punitive damage recovery can be collected in a birth injury case. The victim must prove that the health care provider’s conduct was motivated my intent to injure, evil motive, fraud, or ill will. An example would be a midwife posing as a doctor.
The amount of damages receives varies widely, dependent upon a large number of variables. Due to this, it is extremely important to enlist in the aid of an experienced birth injury attorney.
In addition to damages awarded to the injured child, the parents can also receive a hefty sum. These monies will cover personal losses, any income your child could have been able to generate for the family in the future, reimbursement for the child’s medical expenses, future costs for taking care of the child, specialized education and daycare, and also emotional stress due to being the parent of a disabled child.
Do Birth Injury Cases Have Any Unique Monetary Damages?
Birth injury cases are known to retrieve the highest monetary returns of personal injury cases. It requires a great deal of expertise to determine the final cost for damages in birth injury cases. In addition to working with an attorney, many families will have to hire other experts like rehabilitation specialists and economists to aid in securing a final amount. Parents may also be able to collect for damages to their own lives: time and money spent to take care of a disabled child, emotional damages, etc.
In some cases, parents can claim finds to cover the cost of a nanny or aid. Parents with multiple children will be forced to stretch themselves thin between their original children and their disabled child, so it would be only necessary to hire help.
Who Receives the Money in a Birth Injury Case?
After a birth injury case is settled, individuals who are owed money are the first to collect. This will include doctors who have not yet been paid, the insurance company, the lawyer and any fees associated with that, and an amount to cover the parents’ out-of-pocket payment for medical services during the course of the case.
The remainder is then normally placed in a blocked account or annuity. These control how the parents choose to spend the money, making sure all is spent on behalf of the child. Structured settlements result in an annuity. A blocked account is one that only the bank can control. When the child reaches the age of 18, the annuity is paid out.
Parents can also receive reimbursement for their own claims, which usually involve costs associated with caring for the child or emotional damages.
How is the Claim Affected if the Child Dies? What happens to the Money:
Damages will decrease significantly when the child dies, in most cases. This is due to the fact that the parents and child are losing any costs associated with long-term care (physical, mental, education, etc) for the child in question. The case will change from medical malpractice of personal injury to becoming what is known as “wrongful death.” In these cases, a lawsuit is filed by the parents to benefit the parents—not the child, as in the medical malpractice case. Parents may be able to claim some damages from when the child was alive, such as pain and suffering.
In general, parents may be able to receive an amount to cover what the child could have provided them in life: basically money and services. This total amount estimated is then reduced by how much the parents would be spending on the child during their lifespan. Usually, the amount of money spent to raise a child is much more than the menial amount the child would have given back to the family. However, parents can claim costs for medical and funeral costs. If you are a parent of a child who has died in a birth injury case, you should speak to your attorney about non-economic damages like emotional trauma and loss of companionship.
Who is Liable for a Child’s Birth Injury?
In most cases, the OB/GYN is the first individual responsible. However, others may also play a role. In California, you may file a lawsuit against any and everyone who played a part in causing the injury of your child. If the doctor who attended toy our child is part of an HMO, you may bring what is called a vicarious liability against the HMO. A vicarious liability is brought against a party who is ultimately responsible for the actions of the injury-causing party. The HMO, in this example, is responsible for the doctor since they decided to employ them. These suits are rare, however, since most HMOs hire their doctor as independent contractors.
If you believe that an HMO is responsible for the birth injury on your child, you should speak to an experienced birth injury attorney as soon as possible.
Do I have to file a Birth Injury Claim? Are There Other Options Out There?
While parents could chose to do nothing, they will be up to their necks in medical and education bills for at least 18 years, if not more. Who will pay for your child’s medical needs?
In some health plans, you may be unable to file a lawsuit. Parents are required to sign a consent form which includes an arbitration clause. Arbitration is another form of dispute resolution, favored by many health care plans for malpractice cases. Your birth injury claim will never be handled in the court system. While the process of arbitration if much faster and less-expensive, there is no jury—juries tend to be much more sympathetic towards parents suffering from injured or deceased children.
If you choose to employ an experienced serious birth injury lawyer, you may be able to deal directly with your doctor’s insurance company. Many insurance providers for doctors will include a malpractice clause that gives out a set amount for the injuries obtained. This sum may be far lower than what your bills will cost over time.