A stark reality is staring at the face of America, one of the world’s highly developed nations, the same country where trillions are spent yearly on national health expenditure while on the other hand there are hundreds of women dying preventable deaths of complications from pregnancy each year, and shockingly where birth defects and birth injuries are on the rise. A lot of fingers are being pointed, a lot of questions need answers, a lot of uncertainty needs clarity, let’s take a closer look at the prevailing birth injury status.
Childbirth is a significant moment of joy as it marks an end to pregnancy and the beginning of a new life; however, it can also be extremely complicated, demanding, physically and emotionally challenging. Usually, it involves a lot of different healthcare professionals like a general practitioner, a midwife, an obstetrician, anesthetist, or a combination of these as the pregnancy progresses.
The aim of the medical care providers is to recommend the best prenatal care, perform check-ups routinely to ensure the safe delivery of the baby at the end. However, things at times do go amiss, and babies are born with problems which can be due to an undiagnosed birth defect or if the baby becomes a victim of a birth injury that occurs during labor and delivery.
Identifying a Birth Injury:
Birth Injury or birth trauma refers to the damage that occurs as a result of physical pressure during the birthing process, usually during transit through the birth canal. The legal community refers to it as any damage or injury sustained during pregnancy, during delivery, or just after delivery, including injuries caused by trauma.
Although birth injuries are often preventable and several causative factors have been identified to take appropriate control and measure, CDC reported birth injuries were on the rise since the 2000s indicating a 75% rise in emergencies during delivery and a 50% increase in post-delivery complications during that period. Statistics showed that of every 1,000 infants born in the US, 6 to 8 of them are born with a birth injury.
Common Causes Leading to Birth Injuries:
The process of actually giving birth to a baby may become complicated due to several common factors like the baby's size or the position of the baby during labor and delivery; if the delivery is premature, the babies are more fragile and may be more easily injured. Factors like cephalopelvic disproportion where the size and shape of the mother's pelvis is not adequate for the baby to be born vaginally, or dystocia involving difficult labor or childbirth, prolonged labor, and breech delivery further raise the chances of birth injury.
In such situations and emergencies, the medical team handling the birth has to take the most appropriate measure to have a safe delivery for both mother and child. Things go wrong when health care providers either choose the wrong treatment or perform that treatment incorrectly leading to medical malpractice.
Birth Injury: A Legal Overview
Birth injury lawsuits linked to medical negligence during delivery are making up a major portion of medical malpractice lawsuits being filed in the US courts today. In most cases, the harm may have been unavoidable under the circumstances. Though some birth injuries may be temporary, others may harm the brain or the spinal cord leading to permanent disabilities. Such lawsuits are complex as the injury alone cannot prove negligence, it has to be established that ‘Medical Standard of Care’ was not followed, and how that standard was breached proving birth-related medical malpractice.
As a lawyer to those who have sadly suffered medical mistakes during pregnancy, labor, or delivery that caused significant and permanent harm to the newborn, there are a few checkpoints one should review.
A piece of clear evidence proving medical negligence and carelessness has very high chances of a settlement as agreed by the plaintiff and the defendant stating clearly that the defendant agrees to pay compensation for the losses.
Due to the complex nature of the medical cases, it takes time before a settlement happens to range from many months or even a few years before an agreement is made. This discovery phase is spent on assessing the strength of the case from a legal perspective by each party by exchanging evidence and key information to each other so that they can access the strength of the case.
According to the Centers for Disease Control and Prevention, the lifetime cost associated with a child which can be life-altering for the overall family ranged from $400,000 to over $5,000,000.
There’s a Difference:
Though both the terms, birth defect and a birth injury, may seem alike, there are different. A birth defect means the child was predisposed to having a certain kind of disability, whereas a birth injury is a specific kind of injury that happened during labor. However, either can result in permanent damage requiring expensive and long-term treatment for the victim.
Because birth injury cases can be quite intricate and complicated, only an experienced birth injury lawyer can make the clients understand their rights in such cases and accumulate the facts necessary to validate your claim to the courts.
A specialized birth injury lawyer with the specific knowledge needed to handle a birth injury case will be aware of the most common birth injuries: Brachial Plexus Palsy (Erb's Palsy), bone fractures, cephalohematoma, caput succedaneum, perinatal asphyxia, intracranial hemorrhage, subconjunctival hemorrhage, facial paralysis; spinal cord injuries; and cerebral palsy.
The role of the lawyer would be to prove on paper failure by the defendant to follow the duty of care by not taking the necessary steps that would have been followed in the same circumstances stating clearly this breach was the actual and proximate cause of the harm to the baby.
What can be claimed under a birth injury claim?
Medical negligence can cause birth injuries to both the mother and child which lead to legal proceedings against the hospital, the doctor and the medical staff. A well-experienced birth injury lawyer has to prove medical negligence in a legal setting to win compensation following an accident.
Birth Injuries to the mother: in cases where negligence or liability can be demonstrated which can be fissures, vaginal tears, poor stitching after a c-section, or secondary infections caused by mismanaged post-delivery complications.
Birth Injuries to the baby: after identifying the birth injury, experts are roped in too to demonstrate the liability of the defendant. Infant injuries are typically categorized into neurological or brain damage, shoulder injuries, death or stillbirth (34% of claims).
Compensation: When providing professional advice, lawyers make sure to apprise the client how to maximize their payout amount and claim compensation in full. These include general damages, special damages, medical expenses, travel expenses, as well as future medical expenses estimated to sustain lifestyle due to the disability caused.
The crux of the matter is that if a medical error has resulted in the injury or death or injury of the infant, then the case qualifies as medical malpractice case.
Behind the Lawyer’s Doors:
Establishing severity and winning compensation in a medical malpractice lawsuit is difficult to win and forms a key part for retrieving compensation; all efforts are directed towards collecting documents and additional evidence, collating witness information to build the case, computing compensation for all related medical expenses, projected future expenses, and personal pain and suffering.
According to the 472 claims analyzed by Coverys from 2013 to 2017
80% of cases were of high clinical severity;
in 24% of the cases, the mother, infant or both died.
Trial or settlement: Average settlement value of a birth injury case
Every claim is evaluated against two important parameters: one against the most likely average or median verdicts that have been recorded for very closely similar cases and the second, the chance of winning at the trial. However, several factors and circumstances make each case different.
When estimating the maximum value of settlement or verdict, the total value and the expected yield of the annuity, as it increases over time, are taken into calculation.
In standard birth injury cases where a settlement or a verdict has been reached, deductions like lawyer’s fees and lawsuit expenses, and insurance companies that paid for the child’s care they provided for the child is deducted.
Some recent birth injury verdicts
May 2019: A Suffolk County jury awarded $30.6 million to the plaintiffs against the defendants Cross Country Staffing Inc., for being irresponsible in monitoring a child's heart rate, negligent in the care and treatment of Kim and Aiden Boulter.
March 2019: A Cook County jury ordered Chicago's Amita Health Saint Hospital to pay $23.6 million to a 4-year-old who suffered brain damage during birth as the doctors failed to perform a cesarean section quickly enough to deliver her in a healthy condition. After two days of deliberation, the jury awarded the toddler, Amirah Whiten, and her family, for loss of a normal life, pain and suffering, and future medical expenses among other things.
January 2019: The State of Virginia paid $20.7 million to the U.S. government to resolve allegations that a birth injury compensation program was wrong in asking participants to submit Medicaid claims for the lifetime care of severely disabled children.
A Dive into Birth Injury Stats
One in 9,714 births included an injury to the newborn.
Approximately 28,000 birth injuries are reported every year in the U.S.
The National Healthcare Quality Report estimates that 5.08/1000 birth injuries occurred to female infants, while 6.68/1000 birth injuries occurred to male infants.
The most common forms of birth injuries include brachial plexus injuries (Erb’s palsy), fractures, hematoma, subdural and intracranial hemorrhage, spinal cord injuries, paralysis, and oxygen deprivation.
Rural births are 33-times more likely to result in birth injury than urban births.
Of all births in 2006 alone, it is estimated that more than 157,000 injuries could have possibly been avoided.
How we can help?
A legal expert in birth injury will have the apt knowledge to identify the common reasons for building a birth injury negligence claim: general misdiagnosis, anesthesia mistakes, complications as a result of incorrect or surgical procedure, errors in a cosmetic procedure, care negligence, etc.
An accurate diagnosis is very important to establish the severity of the injury, the severe an injury, the higher will be the payout. Thus, lawyers at times hire professional medical experts to confirm the extent of the injury and to understand the implications on the lives of those affected.
We are witnessing a significant rise in the number of birth injury claims being filed every year. Though highly complex, it offers economies of scale with jaw-dropping multi-million verdicts and settlements in favor of plaintiffs making them a highly attractive part of the portfolio for many attorneys.
Neural IT offers you the best possible services in medical-legal outsourcing, we understand the dynamics of each case type and have developed the expertise to cater to such requirements.
Our team of MDs identifies if there has been a deviation from the standard of care and provides a scientifically sound opinion as to whether that deviation from the standard of care could have resulted in the cause of the alleged injury.
With the advancement in technology and the realization of the sinking situation, efforts are being taken by concerned professionals to understand, identify the causes of improper care during pregnancy, childbirth and postpartum. What lawyers have to keep in mind is to provide a client-friendly approach to help reduce the stress, risk, and confusion so often associated with birth injury compensation claims.