Medical malpractice generally refers to the failure of a healthcare professional to provide a standard of care that another reasonably prudent professional would have provided in similar circumstances. In the context of birth injuries, this could involve negligent actions or decisions at all phases of the pregnancy — during prenatal care but most commonly at the point of labor and delivery. Here are some key points to consider if you suspect that your loved one is the victim of a birth related injury:
Common Birth Injuries
Birth injuries can range from mild to severe and may include conditions such as cerebral palsy, Erb’s palsy, brachial plexus injuries, brain damage, and fractures. These injuries may result from issues such as oxygen deprivation or failure to respond to complications, particularly during labor, to improper use of delivery instruments.
How do you Demonstrate Medical Negligence in a Birth Injury Case?
To establish a medical malpractice case, the plaintiff (usually the parents or guardians of the injured child) must typically prove the following elements:
- The existence of a doctor-patient relationship.
- The healthcare professional breached the standard of care.
- The breach of the standard of care caused the birth injury.
- Damages resulted from the birth injury.
Healthcare professionals are expected to adhere to what is commonly called the “standard of care.” Without a deviation or breach of the standard of care, a physician or healthcare professional is not negligent. While the state statutes require adherence to the “standard of care” they do not attempt, thankfully, to spell out exactly how a surgeon should perform a specific medical procedure. In the context of a legal case, the standard of care is typically established by reviewing expert witnesses through opinion testimony and may be supported by medical journals, articles and other authoritative sources. Legally, the standard of care is the type of medical care that would be provided by a reasonable, prudent doctor or health care provider under the circumstances as they exist at the time the care is rendered or needed. The important point to understand is that the standard of care is defined as what the reasonable, prudent doctor would or would not do – not the best or world class and not the worst.
With some limited exceptions, like most states, West Virginia and Ohio both require that the injured patient obtain and submit a “Certificate of Merit” or “Affidavit of Merit,” signed by a qualified expert, prior to filing a lawsuit against a health care provider. This document must detail the general standard of care, how it was breached and how the patient was damaged as a result. As part of our representation, the attorneys at the Hartley Law Group will seek to secure such documentation in support of your case, as and if appropriate.
Statute of Limitations
There are strict time limits within which a legal action must be initiated (statute of limitations). Patients generally have a certain period to file a lawsuit, and exceeding this time limit could bar the legal action. It is important to note that under certain circumstances the child’s claim may, depending on specific facts and circumstances., actually be extended to a period beyond their age of majority (18).
In medical malpractice cases, expert witnesses are often called upon to provide their opinions on the standard of care, the alleged errors, and causation. The testimony of qualified experts can play a crucial role in determining liability.
Compensation for Damage
If medical malpractice is proven, compensation may be awarded for medical expenses, ongoing care, pain and suffering, lost earning capacity, and other related damages. In the case of an injured child whose injuries and disability is life-long, this is established through not only medical testimony but through the introduction of a Vocational/Rehabilitation Life Care Plan which details life expenses for medical, equipment, rehabilitation other applicable increased living expenses due to the particular facts and injury.
Medical malpractice cases, especially those involving birth injuries, can be incredibly complex and stressful. Aside from the emotional toll of simply facing an infant’s injuries, parents are confronted with difficult and unforeseen questions about how to afford care for their child, potentially for the rest of their life. It is crucial to promptly consult with an experienced medical malpractice attorney who can assess the specific circumstances and guide you through the legal process and to understand not only the parent’s rights and options but the child’s rights as well.