After months of carrying your child, the time for delivery finally arrives. Unfortunately for many women, the physical and mental trauma of a birth complication can last for months or years after delivery. When the mother or baby suffers during a traumatic birth caused by medical negligence, the mother may be able to recover financial compensation.
A birth injury malpractice lawsuit can provide for the child’s medical and developmental needs. When the mother is injured during delivery, a lawsuit can help recover money to pay for medical bills, lost income, and pain and suffering. If you suffered a traumatic birth and want to know what you can do, contact experienced birth injury attorneys to understand your legal rights and how you can recover damages.
What Is a Traumatic Birth?
According to the March of Dimes, “Birth trauma is any physical or emotional distress you may experience during or after childbirth.” Birth trauma can refer to trauma suffered by the mother during pregnancy and after birth, including both physical and emotional distress.
However, a traumatic birth can also refer to birth complications that result in injuries to the child and the mother. Types of traumatic birth injuries include:
- Hypoxic-ischemic encephalopathy (HIE)
- Shoulder dystocia
- Cephalopelvic disproportion
- Misuse of vacuum extractors or forceps.
- Intracranial hemorrhage
- Facial paralysis
- Bone fractures
- Cephalohematoma
- Caput succedaneum
- Subconjunctival hemorrhage
- Birth complications
Traumatic Birth Injuries to the Child
Traumatic birth injuries to the child often involve birth complications. Complications can make delivery more difficult but doctors should follow proper medical standards to make sure the child and mother are given the best care. If a doctor fails to follow medical standards of care and it leads to an injury, the doctor may be liable for damages.
Birth injuries can range from minor to debilitating. In some cases, improper delivery care can be fatal for the child. The most serious traumatic birth injuries involve permanent damage, including physical disabilities or mental disabilities. For example, severe trauma to the head or cutting off the child’s oxygen supply for too long can lead to permanent brain damage.
A child with brain damage may suffer life-long impairment, including developmental delays and requiring around-the-clock care for the rest of their lives. A child with severe cerebral palsy may require millions of dollars in care over the course of their lifetime
Improper delivery techniques can be responsible for physical trauma to the child, including bruising, broken bones, and hemorrhage in the brain. Failure to properly care for injured children after delivery can make the damage worse, including permanent injuries and disabilities.
Even after delivery, the newborn requires proper care and monitoring. Failure to properly care for a newborn can lead to infection injury and liver problems. Liver problems, hyperbilirubinemia, kernicterus, jaundice, and bilirubin-induced neurologic dysfunction (BAND) can cause organ damage, neurological damage, or brain damage if not properly treated.
Newborns are especially prone to infection when they are young because their immune system is not fully developed. Infection can happen in the womb, during delivery, or in the postnatal environment. Common types of birth infections can include:
- Group B Streptococcus
- Zika virus
- Toxoplasmosis
- E. coli
- Listeria
- Cytomegalovirus (CMV)
- Chlamydia
Failure to properly monitor and treat infections and signs of infection can lead to serious injuries for infants. In some cases, a healthcare-associated infection (HAI) is caused by failure to follow proper sanitation and sterilization procedures in a hospital or healthcare setting.
Traumatic Birth Injuries to the Mother
In a traumatic birth, the mother may be more focused on the health of their baby to be concerned about what is happening to them. However, during or after delivery, the birth mother may go through serious physical injuries and mental harm. Injuries to the mother involving birth complications can include:
- Cesarean section complications
- Pre-eclampsia
- Eclampsia
- Painful labor
- Lack of proper pain control
- Excess medication
- Use of forceps or vacuum extraction
- Discounting the mother’s concerns
- Improper postnatal care
- Excessive bleeding
- Uterine rupture
- Infection injuries
A mother may also go through emotional and mental trauma during a difficult delivery. Some women experience post-traumatic stress disorder (PTSD) after childbirth. Symptoms of postnatal PTSD may include:
- Nightmares
- Re-experiencing the trauma
- Avoiding other people who remind them of the trauma
- Hypervigilance over the baby
- Blaming themselves for the trauma
- Depression or anxiety
Some postnatal patients can be misdiagnosed as just having the “baby blues” or have their concerns waived away by doctors who don’t understand the mother’s trauma. Other patients can be diagnosed with postpartum depression, which can be similar but should be treated uniquely for the individual patient.
When a mother is dealing with their own trauma and still has to care for a childbirth injury, the stress can be amplified. Full-time care for a child with a birth injury doesn’t end when the child gets older. Some people with birth injury disabilities will need specialized care for the rest of their lives.
When Can You Sue for a Traumatic Birth Injury?
In most cases, you can sue for a traumatic birth if it was caused by medical negligence. Medical negligence is the breach of the medical standards of care that cause injury and harm to a patient. The harm can be physical and emotional. The harm caused by a birth injury can include temporary injuries and long-term or permanent injuries.
Most patients aren’t really sure after a traumatic birth if the situation was just an unforeseen birth complication or if something happened because of medical negligence. Unfortunately for patients, if they are unaware of the medical standards where they live, they will not know when a doctor deviates from medical standards, which causes a birth injury. However, there may be signs of possible mismanagement that make parents look further into what happened.
Did the Doctor Make a Mistake?
In some cases, the doctor or hospital will admit to a mistake. However, most doctors still follow a “deny and defend” policy, even when they know they were responsible for what happened. A doctor may not want to hurt their reputation or put themselves at risk of litigation. In reality, being open and honest with patients after a medical mistake statistically lowers the chances of a medical malpractice lawsuit.
If you are not sure if you were a victim of negligent medical care, you can get advice from a professional. A medical malpractice attorney can listen to what happened, review your medical records, and get a medical expert to review your case. An experienced birth injury attorney can also give you advice about your case, what you can expect, and how to recover compensation for your losses.
Birth Injury Wrongful Death Claims
If your child did not survive a traumatic birth, you may be able to pursue a wrongful death lawsuit. A wrongful death lawsuit is like a personal injury claim but the victim is no longer alive to take their own case to court. If a fatal birth injury was caused by medical negligence, the family members or a personal representative can recover damages for:
- Loss of financial support
- Funeral costs
- Burial expenses
The death of a newborn in childbirth can be very traumatic for the mother and other family members. A wrongful death after a traumatic birth can lead to emotional distress for the mother, as well as anxiety, depression, and PTSD. A mother who survives a traumatic birth and loses their baby may be able to file their own claim to recover damages on their own behalf after a wrongful death.
How Much Time to File a Traumatic Birth Lawsuit?
There are time limits for claims involving medical malpractice. Each state has a statute of limitations that limits how much time the plaintiff has to bring a civil lawsuit against the defendants. The statute of limitations can be very strict and filing even one day too late may mean that your claim will be thrown out.
The statute of limit is different for different types of cases and each state has its own regulations and exceptions. For example, in Maryland, medical malpractice claims have to be filed within 5 years of the injury or 3 years of the discovery, whichever is first. However, the time limit does not begin for minor victims until they reach the age of 11. This means for birth injury claims, the child could file a claim up until they reach age 14.
The time limit for medical malpractice is shorter in Pennsylvania but allows more time for a minor who suffers a birth injury. There is a 2-year statute of limitations for medical malpractice claims. However, for victims of a birth injury, the time limit begins to run when the child turns 18, meaning a child victim generally has until age 20 to file a medical malpractice claim.
In Illinois, the statute of limitations can be more complicated. For most medical malpractice claims, the injury victim has to file the claim within 2 years of the date of the injury. However, for minor victims, they have 8 years to file a claim. However, in no case can the birth injury victim bring their case after their 22nd birthday.
Talk to a birth injury malpractice attorney as soon as possible after a medical injury to make sure your case is filed in time. If you wait too long, you may not be able to recover any damages for your injuries.
What Damages Are Available in a Traumatic Birth Lawsuit?
Damages is a legal term that refers to the financial award the personal injury victim is seeking from the defendants. Damages can include any losses, both economic and non-economic, related to the negligent birth injury. For example, damages for the baby injured because of a traumatic birth, damages could include:
- Medical bills
- Future medical needs
- Home modifications
- Special needs education
- Loss of earning potential
- Long-term care
- Pain and suffering
- Loss of companionship
If the mother is injured during the traumatic birth, physically or emotionally, damages could include:
- Medical care
- Continuing medical needs
- Loss of income
- Loss of earning potential
- Pain and suffering
- Loss of companionship
- Loss of consortium
Can I Get Damages for Emotional Distress?
Emotional distress can cause very real damage, even if the victim recovers from their physical injuries. Mental and emotional harm can severely impact someone’s quality of life and they should be compensated when the damage was caused because of medical negligence. A victim of emotional distress can recover damages.
The amount of damages you can recover for emotional distress may depend on your injuries, the injuries to the child, what happened during childbirth, how it impacted your life and ability to earn a living, and your current and future medical needs. You can show evidence of your mental state and distress through:
- Medical reports
- Post-traumatic stress disorder (PTSD) evaluation
- Clinical testimony
- Witness testimony
- Change in workplace evaluations
Even if it seems like the defense lawyers are trying to question your injuries, a jury can be very perceptive about how much emotional distress a mother suffers after a traumatic birth experience. Juries can be very good at determining how much emotional distress a mother has suffered and award a fair award to compensate the victim for the harm caused by negligent medical care.
How Can a Birth Injury Attorney Help With a Traumatic Birth Lawsuit?
Birth injury cases can be complicated. Birth injury lawsuits can take a long time and may take years before they finally get to trial. One of the benefits of an experienced medical malpractice attorney is that they know what to expect and can help you understand the process. They can keep you informed and up to date and let you know when anything changes.
A birth injury attorney can also negotiate a fair settlement with the doctors and hospitals. A settlement that provides you the award you need to move on with your life can help you avoid the difficulties of going through the trial. Your attorneys can aggressively pursue your claim to get you the maximum settlement available for your losses.
If you suffered a traumatic birth injury, you may be able to file a medical malpractice lawsuit to recover any damages. Get a free consultation from an experienced birth injury malpractice law firm. Do not hesitate to contact Gilman & Bedigian today for a free consultation.