A birth injury or defect is a devastating loss that can irrevocably taint what should be one of the most joyous events in life: the birth of a newborn child. When a child is injured or disabled as the result of someone’s negligence, that child is often faced with a lifetime of hurdles to overcome. Parents, too, must deal with the fallout, including skyrocketing costs of specialized care as well as the emotional toll a birth injury or defect can exact.
Birth injuries and birth defects are all too common, and can be the result of any number of negligent acts. Poor pre-natal care, medical malpractice both before and during birth, and even defective products can cause birth injuries or defects. As such, birth injuries and birth defects are highly actionable. Birth injuries and defects can even lead to Wrongful Death actions should a newborn fail to survive.
Birth injuries are injuries sustained during the course of the actual birthing process. Some common examples are injuries caused by aggressive use of forceps or vacuum, unnecessary or later cesarean sections, botched cesareans and negligent birth monitoring. Deformity, cognitive disabilities and physical handicaps can all result from birth injuries, and can create a lifetime of hardship for both parent and child.
Birth injuries are generally actionable under theories of medical malpractice. In plain English, this means that birth injury cases are handled the same way a case would be handled if a doctor committed malpractice against an adult. While some states may have certain timing rules specific to birth injury and defect cases, there is generally no difference in process or procedure. As such, it is important that you retain a competent, professional malpractice attorney the moment you suspect your child was negligently (or intentionally) injured during birth.
Birth defects differ from birth injuries. Birth defects are physical or mental conditions already present in a child upon birth. Down’s syndrome, cerebral palsy, and lung damage—all of these would be considered birth defects as opposed to birth injuries. Birth injuries happen during birth. Birth defects are discovered or confirmed at birth. Birth defects can be caused by negligent pre-natal care, ingestion of unsafe drugs or other consumables, as well as through various other means. Medical malpractice is not always the main culprit in birth defect cases. Very often, birth defects are the direct result of a product failure. Prescription drugs, in particular, frequently give rise to birth defect cases.
Whether one is talking about thalidomide in the 1950s or antidepressants in the 21st Century, there is no question that prescription drugs—drugs legitimately prescribed by treating physicians for an appropriate purpose—have caused birth defects. Tens of thousands of families have joined class actions or filed individual suits against pharmaceutical companies and have successfully recovered large sums of money.
Birth defects, however, can still occur as a result of medical malpractice. Cerebral palsy is perhaps one of the best examples of this type of case. One of the leading causes of cerebral palsy is oxygen deprivation in utero. There are numerous malpractice cases that have alleged that inaction on the part of doctors and/or nurses led to fetal oxygen deprivation, which in turned caused cerebral palsy in some babies. Juries have awarded millions of dollars in damages to cerebral palsy birth defect plaintiffs based on theories of medical malpractice.
Birth injury and defect lawsuits follow the rules of the underlying claim. That means that if the birth injury or defect was allegedly caused by malpractice, the laws governing medical malpractice apply. If a defective drug allegedly caused a birth defect, than product liability law applies. It is essential to consult an attorney as soon as you think you may have a birth injury or defect claim, because only an experienced attorney will be able to determine the applicable law relevant to your specific situation.
The timing requirements for the various types of birth defect claims can vary, sometimes wildly. Statutes of limitations (the limited window of time in which you are allowed to file a lawsuit) can be as short as two years or as long as six years, depending on where the injury occurred or what caused it. There are countless administrative, procedural and legal requirements that need to be met to get a birth injury or defect suit off the ground and a good attorney will be your best ally.
Birth injury and defect attorneys usually work on a contingency basis, meaning that they take a portion (usually a third, plus costs) of any award you collect. Costs can be very high in birth defect cases, usually due to the involvement of physicians and other experts. As such, attorneys will often attempt to settle birth injury and defect cases before a suit is even filed. In some cases this is successful. In others, not so much. Particularly in cases of birth injury, doctors and their malpractice insurance companies often push for trials. You need to know going into a birth injury or defect case that you will likely be in for a long and arduous experience with no guarantee of success.
While birth injuries and defects are not, generally, independent causes of action, many attorneys have carved out a niche handling only these types of cases. An attorney that specializes in birth injury and defect cases can be counted on to know the nuances involved with the facts of your case, and will be able to immediately gauge what law applies and what the likelihood of success may be. As such, it is of paramount importance to retain an experienced and professional personal injury lawyer that handles birth injury and defect cases.
Due to the sensitive and emotional nature of birth injury and defect claims, many attorneys that specialize in this area have learned to act as de facto grief counselors and confidantes to their clients. An attorney that understands and empathizes with their client can often provide a brand of personal advocacy that is unheard of in other areas of the law. It sounds crass, but good birth defect and injury attorneys can make a jury feel the pain and anguish their clients feel. So when deciding upon an attorney to represent you in your birth injury or defect claim, it is important to find someone you are comfortable with personally as well as professionally. If you don’t get along with your lawyer, it will show and will hurt your chances at recovery.
Birth defects and injuries are traumatic enough without added invasion of privacy that comes along with a lawsuit. If you think you have a potential birth injury or birth defect claim, take the time to research your potential claim. Talk to family, friends and co-workers. Be absolutely certain you want to pursue legal remedies before embarking upon a course of action that could potentially expose your very private pain in a very public forum. And above all else, immediately retain a competent and professional attorney who has specific experience with birth injury and defect claims.