Medical Malpractice Newsletter

Malpractice Based on Birth Injuries

Medical malpractice usually involves negligence on the part of a health care professional. As professionals, health care providers, e.g., doctors, surgeons, and nurses, are held to a standard of care for the services they provide. This standard typically consists of what a comparable, reasonable professional would do under the same or similar circumstances. When the care falls below the standard, the professional may be liable for any resulting injury and damages.

Not all birth injuries are the result of malpractice. However, for those that are, they are treated like any other medical malpractice case. As such, if the health care professional handling the pregnancy and/or birth fails to act in accordance with the applicable standard of care, liability may be imposed for damages.

Pre-Natal Care

While developments in medical technology provide increasingly sophisticated ways to monitor the progress of a pregnancy, they also impose a duty upon health care professionals to detect any problems so indicated.

Many birth injuries relate to the fetus’s failure to receive a sufficient amount of oxygen. By monitoring the fetus, this problem can be detected. Common causes include the separation of the placenta from the wall of the uterus, or the shifting of the baby’s position, which affects the umbilical cord. Proper monitoring can also reveal whether the mother has a kidney or a urinary tract infection which could impact the baby’s health. An elevated heart rate for the fetus can also be detected, which may indicate the necessity of immediate delivery by cesarean section.

Particular problems are associated with giving birth to a large baby, including an increased chance that the baby’s shoulder will get stuck behind the mother’s pelvic bone. Although a number of maneuvers can be used to free the baby, precaution must be taken to avoid stretching the baby’s neck in the process. Other risks include injuring or severing the nerves attached to the baby’s spine, especially those nerves connected to the arms and hands. The result can be brachial plexus palsy; a condition characterized by partial or complete, temporary or permanent, paralysis of the affected area.

If the baby is too large, cesarean delivery may be advisable. An obstetrician or other professional who fails to detect problems related to its size may be liable for the resulting injury to the baby. Indications of this problem include the following:

Gestational diabetes of the mother (diabetes that develops during pregnancy)
Excessive weight gain by the mother
An obese mother
The mother has previously delivered a large infant
Excessive increase in the measurement from the top of the pubis to the top of the uterus, called the “McDonald measurement” and normally monitored during pregnancy
Delivery that takes too long

The Birthing Process

During the actual birth, there remains a danger that the baby will be injured through the negligent use of medical instruments (e.g., the “forceps”). Sophisticated equipment, attached to the mother or the fetus, is commonly used to monitor the baby during birth. The baby’s heart rate, for example, can indicate the onset of “fetal distress” and other problems. An elevated heart rate at particular times during delivery may indicate that the baby is not receiving enough oxygen.

If the baby does not receive sufficient oxygen over a prolonged period, the result can be brain damage. This can cause cerebral palsy, “cerebral” referring to the brain and “palsy” to muscle weakness or lack of control. Any impairment depends upon which part of the brain is affected, but the effects can include: retardation; seizures; impairment of speech, hearing or eyesight; muscle spasms and lack of mobility. The end result may be so severe that the baby will never be able to function normally or care for itself as it grows older.

Consequences of Birth Injuries

Birth injuries can range from mild to severe. A birth injury can affect any part of the newborn’s delicate body, but injuries to the newborn’s brain or neurological system are the most grave. Complications during the birthing process can lead to long-term disorders or permanent mental retardation. If a newborn exhibits any signs of a birth injury, an expert should be contacted immediately to investigate whether medical malpractice took place.

Doctors and hospitals have been held liable for their failure to properly monitor births, and/or take appropriate action in response to the monitoring, whether the failure took place before, during, or immediately after the birth. Both doctors and hospitals may be liable for the acts of nurses. As a result, both the parents and the child may recover compensable damages.

Parents may recover for their pain and suffering, in addition to their medical costs.
An action may also be brought on behalf of the baby itself. Damages can include future medical costs, lost earning capacity and pain and suffering.

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