Although it’s rare, sometimes a doctor’s medical malpractice causes a mother or an infant to be injured before or during the birth of the child.

Birth-related medical malpractice may include negligently failing to control excessive amounts of maternal blood loss post-delivery and negligently failing to monitor the baby’s oxygen intake before and after delivery.

What Is Medical Malpractice?

Medical malpractice (also known as professional negligence) occurs when a doctor or other healthcare provider is negligent in treating a patient. To prove that medical malpractice occurred, a patient must prove five elements:

  • The doctor had a duty to the patient: A legal duty exists when a doctor undertakes care or treatment of a patient. The patient must have hired the doctor, and the doctor must have agreed to be hired.
  • The doctor was negligent: A doctor is negligent when she fails to act with the carefulness of a reasonably prudent doctor in her local community. The doctor does not need to provide the best care possible; the care just needs to be as reasonably skillful and careful as the care offered by other doctors in her community.
  • The doctor’s negligence was the “actual cause” of the patient’s injury: For a doctor to be liable, her negligence must have been the cause of the patient’s injury. The “but-for” test usually proves this: “But for” the doctor’s negligent conduct, the patient would not have sustained an injury. The patient must show that it is “more likely than not” that the doctor’s negligence caused the injury.
  • The doctor’s negligence was the “proximate cause” of the patient’s injury: A doctor is only liable for the reasonably predictable consequences of her negligence. If the patient’s injury were remote or unpredictable, the doctor would not be liable.
  • The doctor’s negligence caused damages to the patient: Even if the doctor was negligent, the patient could only sue if she suffered harm. The most common damages for which patients sue are physical pain, mental anguish, medical bills, and lost work and earning capacity.

What Is a Birth Injury?

A “birth injury” is an injury sustained by a baby due to complications during labor or delivery. Birth injuries may occur during or after delivery. The most common birth injuries include the following:

  • Head injuries
  • Damage caused by lack of oxygen
  • Cerebral palsy
  • Erbs palsy
  • Deafness
  • Blindness
  • Autism
  • Down Syndrome

If an infant is injured, the parents must bring the lawsuit and act as guardians for the infant. The parents must ask for both general and specific damages on behalf of the infant. General damages may include the cost of suffering, such as mental and physical pain and suffering and the loss of enjoyment of life.

For example, if a doctor didn’t use reasonable care and erroneously delivered a baby prematurely and the baby suffered brain damage, the parents may sue to recover medical expenses incurred to pay for rehabilitation and developmental needs. The pain and suffering are recoverable because the baby will experience physical and mental disability trauma.

Mothers could bring claims for medical malpractice if a doctor’s carelessness caused her to be injured prior to or during childbirth. For example, suppose a doctor fails to notice a mother’s high blood pressure prior to delivery, and the mother has a seizure during delivery. In that case, the mother may have a claim for medical malpractice to recover from the injuries caused by her seizure.

What Causes Birth Injuries?

Most birth injuries are not the result of medical malpractice; birth is a naturally traumatic event for the mother and child. Birth injuries often occur naturally when a doctor could not have prevented the injury. However, birth injuries can be due to a medical error.

Here are some common medical errors that may support a medical malpractice action:

  • Failing to monitor the baby
  • Failing to warn of pregnancy risks
  • Improper use of forceps, vacuums, and other medical birthing devices
  • Failure to order, or delay in ordering, a cesarean section (c-section) when medically necessary
  • Medication errors

Who Are the Responsible Parties in a Birth Injury Claim?

A birth injury or medical malpractice claim is not only limited to the conduct of the medical doctor. A medical malpractice claim in a birth injury claim may apply to to the following parties:

  • Hospitals that provided the medical staff and doctors
  • Nurses and anesthesiologists
  • Pharmaceutical Companies that provided the drugs and medicine
  • Doctors and medical providers

When Should I Bring a Birth Injury Claim?

In a birth injury claim, there are two different types of claims that can be brought. The first claim belongs to the parents who can bring a claim for the cost of their child’s treatment and care until the child has reached the age of 18 as well as their own pain and suffering damages. This claim has a short deadline depending on the state’s law when the time period is.

The other claim belongs to the child who suffered the birth injury. The child can bring a birth injury claim for their own medical expenses, care, and pain and suffering damages after the age of 18. A child may be able to bring this claim up to the age of 21.

What Is a Wrongful Birth Action?

In a wrongful birth action, the parents claim that the doctor should have warned them about their child’s impending birth defects and that if they had known, they would have either avoided the pregnancy or terminated the pregnancy.

Usually, wrongful birth claims are based on:

  • Negligent genetic testing before the child was conceived
  • Negligent failure to detect mental or physical ailments in the early stages of pregnancy

Damages for wrongful birth cases typically include the costs arising out of the child’s disorder, such as medical expenses and educational therapy. The parents may also be able to recover for the emotional pain and suffering associated with birthing and raising the child.

Many states allow parents to bring wrongful birth claims. Some states have laws in place that limit the recovery of damages, but the vast majority of states do not allow the child themselves to sue for wrongful birth. When a child sues, it is sometimes referred to as wrongful life.

What Is a Wrongful Pregnancy Claim?

Parents may sue for wrongful pregnancy if they tried to avoid a pregnancy through sterilization, pregnancy testing, or abortion, but those methods failed due to the negligence of a doctor or medical staff.

In wrongful pregnancy actions, the child is born healthy, but the parents may sue for the harm caused by the unwanted pregnancy and birth. The types of damages available for wrongful pregnancy claims may depend on the state. Most states allow parents to sue for costs associated with medical expenses and lost wages. In contrast, other states allow damages for the parents’ pain and suffering caused by an unwanted pregnancy. A few states allow the recovery of the costs for raising a healthy but unwanted child, but most do not.

Seeking Legal Help for a Birth Injury

If you believe that you are involved in a case of medical malpractice or birth injuries, you should seek legal counsel from an experienced personal injury lawyer. LegalMatch’s services can help you find an attorney in your area. Schedule a free consultation today.