Proving A Birth Injury Case
OBGYNs and their nurses have specialized childbirth training, education, and experienced, so they should identify pregnancy complications as soon as possible, explain to you the complication and what can be done about them, and inform you of any risks inherent in their recommended course of action.
When your treaters fail to identify or prevent a birth injury, fail you to warn of any risks inherent in a particular procedure, or through a medical error, cause a birth injury, you may be able to recover for their negligence and medical malpractice.
Since birth injury cases are a subtype of medical malpractice, a plaintiff must prove the same elements to recovery in a birth injury lawsuit:
- Owed a professional duty of care to their patient;
- Breached the professional duty of care;
- That breach caused the patient’s injury;
- That injury resulted in damages.
Damages include the newborn’s pain and suffering, loss of a normal life, disfigurement, lost wages over their lifetime, loss of care and affection, and past and future medical and lifecare costs.
Common Birth Injuries
This occurs when the group of nerves that supplies the arms and hands (brachial plexus) is injured. It's most common when there is trouble delivering the baby's shoulder, called shoulder dystocia. The baby loses the ability to flex and rotate the arm. If the injury caused bruising and swelling around the nerves, movement should return within a few months. Tearing of the nerve may cause permanent nerve damage. Special exercises are used to help maintain the arm’s range of motion while healing occurs.
Bruising or Forceps Marks
Meconium Aspiration Syndrome
Meconium is the first feces, or stool, of the newborn. Meconium aspiration syndrome occurs when a newborn breathes a mixture of meconium and amniotic fluid into the lungs around the time of delivery. Meconium aspiration syndrome, a leading cause of severe illness and death in the newborn, occurs in about 5 percent to 10 percent of births. It typically occurs when the fetus is stressed during labor, especially when the infant is past its due date.
The newborn's mouth should be suctioned as soon as the head can be seen during delivery. Further treatment is necessary if there is thick meconium staining and fetal distress. The infant may be placed in the special care nursery or newborn intensive care unit.
Infant Subconjunctival Hemorrhage (SCHN)
This is the breakage of small blood vessels in the eyes of a baby. SCHN may occur during long, difficult labor when too much pressure is placed on the infant during contractions. As the infant moves through the birth canal, the head is under constantly changing pressure, which can be forceful during the delivery. This can cause the blood vessels in the eyes to rupture.
Additionally, injuries to the baby’s eyes can be caused by doctors applying inappropriate pressure and force on the infant during labor and delivery. This is more common when birth-assisting tools are used, such as forceps or a vacuum extraction tool. It can also happen if too much pressure is applied in order to release the infant’s shoulders if he or she is stuck during delivery.
Why & When Should You Hire an Attorney?
- Do not assume your doctors did everything they could and should have to prevent the injury.
- Do not think the injuries might have been your fault or that you don’t have the right to pursue financial compensation through legal means.
- Do not assume you’ve missed the deadline to file, even if years have passed since your child’s delivery.
The hospital or birth center will likely send an insurance representative to communicate with you about the birth injury event. Protect your family’s rights by entering into these conversations with legal representation.
Bottom Line: Get an experienced attorney!
Birth Injury Laws and Statutes
Like all types of injury cases, birth injury lawsuits follow state-specific statutes in South Carolina. It’s important as a claimant to have at least a cursory understanding of the most important laws so that you know how and when to take legal action for your injured child. Here are two important state laws we believe all parents should know:
Who Can File a Birth Injury Lawsuit?
Firstly, only certain parties can file. In the majority of cases, parents have the right to file a claim against one or more parties for birth injury medical malpractice. Parents will file a lawsuit on behalf of the injured child when the child is too young and/or mentally incompetent to legally bring the claim him/herself. Parents can claim recovery for their child’s damages as well as their own, including parental mental anguish and emotional distress.
What is the Time Limit for Filing?
Secondly, there is a time limit for filing. There are time restraints you must obey for the South Carolina courts to agree to hear your case. In general, the deadline that claimants have for filing a lawsuit is: five years from the date of the birth injury or three years from the date of discovery of the injury.
For example, if doctors do not diagnose your child with cerebral palsy until the age of three, you would have three additional years to file a claim. In Charleston, wrongful death birth injury claims, you have three years from the date of death to file. In all cases, you must file a claim before the child’s 11th birthday.