Welcoming a child into the world can be an exciting and beautiful experience, and most children are born safely and without any complications or injuries. But that’s not always the case. And while some birth injuries are unavoidable, others can be the result of negligence on the part of the hospital, doctors, or other medical professionals.
If that happens, and the injuries impact your child’s wellbeing and leave your family with insurmountable care and medical expenses, you may have a medical malpractice claim.
Although doctors are trained health care professionals and are held to a high standard of care in treating their patients, they cannot guarantee results. Sometimes birth defects or birth injuries occur even though a thoroughly qualified physician, assisted by an able staff, has diligently and competently done everything possible to bring about a safe, normal delivery.
A lawsuit based on birth defects or birth injuries is a form of medical malpractice action and requires proof that the defendant, usually the hospital, doctor, or staff, was negligent in rendering professional services and that injuries occurred as a result. These types of suits can be difficult to prove, and you would probably need to consult with an attorney.
Birth injury lawsuits are based on medical malpractice, a specific form of negligence claim against medical professionals. In order for plaintiffs to recover from defendants, negligence actions require plaintiffs to prove four essential elements:
Birth injury and medical malpractice claims are based on a specific standard of care that applies to doctors, nurses, technicians, hospitals, and hospital workers. The standard is based on custom and practice and requires those medical professionals to perform as other professionals — with similar training and experience — would in the same circumstances.
For example, if an obstetrician with similar training would have performed a Cesarean section operation and your doctor did not (and lacked a legitimate medical reason), they may have breached their duty of care to your child.
Causation can also be difficult to prove in birth injury cases. Medical malpractice claims depend largely on expert witness testimony. It is through expert testimony that you can prove whether the doctor’s actions fell below standard for medical care in your community, and that the injuries that occurred were a result of the doctor’s actions.
Obviously an infant or young child can’t file a lawsuit on their own. However, most states allow the parent of a child who suffers an injury during childbirth to have the standing to sue on the child’s behalf.
In some jurisdictions, this would require the child’s “guardian ad litem” to file the lawsuit. A birth injury lawyer can prepare a petition to have the court appoint you as your child’s guardian ad litem” and file the lawsuit in your name, as the child’s representative.
In most cases, several medical professionals and entities will have a hand in a new baby’s arrival. Each has a different part to play, and could face liability for injuries that occur during the birth:
If you can prove your birth injury claim, you may be entitled to damages, which can compensate you for medical bills, rehabilitation costs, loss of income, and additional living expenses your child or your family may incur dealing with the injury. You may also recover damages for pain and suffering or emotional distress, and some states allow for punitive damages in medical malpractice cases if a medical professional’s conduct was egregious or outrageous.
While damages cannot undo the harm that was caused nor give the child the opportunities that the child may have had if he or she had not been injured, financial damages can give a family the resources to provide the necessary care for the child and hold the defendant accountable for medical malpractice.
Like all civil lawsuits, birth injury claims are subject to time limits, also known as the “statute of limitations.” Statute of limitations laws set forth the time period during which plaintiffs can file a lawsuit. If the time period passes before you have filed the lawsuit, whatever claim you might have is forfeited. Time limits can vary from state to state, from as little as one or two years to six, and could also depend on when the injury was discovered.
Therefore, it is essential to consult with an attorney as soon as you suspect there may be a problem. Your lawyer can lead you safely through the statute of limitations and other procedural obstacles your birth injury lawsuit may face.
Injuries cost money, including time away from work, medical bills, and other complications. Before taking legal action or trying to negotiate a settlement on your own, you should talk to an attorney about your case. You can search LawInfo’s legal directory to find a local birth injury attorney about the merits of your case. This one step can level the playing field, help you protect your rights, and put you in the best position for recovering the compensation that you deserve.
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