Below you will find general information on frequently asked questions about birth injury claims. You should always consult with an experienced birth injury attorney at Walkup, Melodia, Kelly & Schoenberger for answers about your specific situation. Call us today at 415-906-3764 for more information.
General Questions About Birth Injuries
Q: How common are birth injuries?
A: It has been estimated that for every 1,000 babies born in the U.S., five will be injured during birth.
Q. What causes a birth injury?
A. There are many causes of birth injuries and any baby or mother is at risk. The most common causes include oxygen deprivation, use of excessive force during delivery, delay in performing a necessary cesarean section and lack of proper medical care.
Q. What are some common birth injuries?
A. The most common birth injuries include fractures to the arm or collarbone, bruising on the face or head, umbilical cord entrapment and skin irritations. More serious birth injuries, such as cerebral palsy or Erb's palsy, occur less frequently, but often cause lasting pain and suffering.
Q. How often do birth injuries occur?
A. With all of the advances in the medical profession, injuries to infants or mothers before, during or just after delivery have been greatly reduced. Statistics show that approximately three out of every 100 babies born in the United States each year suffer from birth injuries. It is important to receive proper medical care to reduce the chances of both mother and baby suffering a birth injury.
Q: What's the difference between a birth defect and a birth injury?
A: Birth injuries are generally caused by something that went wrong during delivery, while birth defects usually involve harm to a baby that arose prior to birth, as a result of genetics, infection or something that happened during or before the pregnancy.
Q: What is medical malpractice?
A: Medical malpractice is negligence by a professional health care provider — a doctor, nurse, dentist, technician, hospital or hospital worker — whose performance of duties departs from a standard of practice for those with similar training and experience, resulting in harm to a patient or patients. The profession itself sets the standard for malpractice by its own custom and practice. An injured person must always prove a breech of the standard of care through expert testimony.
Q. Can medical malpractice lead to a birth injury?
A. Doctors and all other medical personnel must use a level of skill equal to that of everyone else in their profession under similar circumstances. Proper prenatal care is vital to the delivery of a healthy child. The baby and mother should be monitored throughout the pregnancy to check for signs of risk or danger. If your doctor does not perform the necessary tests or give you adequate attention, this negligence may result in a serious birth injury. Negligence is difficult to prove, and the sooner the matter is investigated, the greater the chances are of receiving compensation.
Q: How can I know whether the doctor is responsible for my child's birth injury?
A: This is not easy. A thorough investigation must be completed by qualified birth injury attorneys.
Q: What are some common types of birth trauma and delivery injuries?
A: The most common birth injuries are Erb's palsy, brachial plexus, cerebral palsy, brain damage and shoulder dystocia. A good birth injury lawyer is familiar with all these issues. Other injuries resulting from a doctor's malpractice might include soft tissue injuries, skull fractures, facial paralysis, nerve trauma, body paralysis and spinal cord damage. These are serious matters, requiring the expert help of a birth injury lawyer.
Q: What are some examples of errors that occur in the delivery room?
A: Errors that may lead to birth injuries include hospital neglect, giving the wrong drugs, improper administration of epidurals, miscalculation of contractions, failure to take vital signs, improper extraction of the infant and forced delivery. Competent birth injury attorneys can discern these matters.
Q: My baby has been given a clinical diagnosis of asphyxia. What does this mean?
A: Asphyxia refers to the lack of oxygenated blood flow in the baby's brain, when oxygen levels fall below normal and cause brain damage. A clinician is responsible for monitoring the fetus's oxygen for any signs of abnormalities.
The Legal Considerations Of Birth Injury Claims
Q: What kinds of situations give rise to a lawsuit for birth injuries?
A: Most cases occur when a doctor, nurse-midwife or other health care professional fails to adequately assess or respond to conditions and complications during a woman's pregnancy or delivery.
Q: How can I get information about the merits of a possible birth injury claim?
A: If you have questions about a potential birth injury claim or the chances for success at trial or arbitration, you should call us at 415-906-3764 or contact us online. We will discuss your case and determine whether medical records should be obtained and submitted for expert review to a qualified obstetrician.
Q: What is the statute of limitations for bringing a birth injury claim in California?
A: The statute of limitations for medical negligence cases in California is found in Code of Civil Procedure §340.5. In California, injuries to a child under the full age of 6 must be brought within three years or prior to the child's 8th birthday, whichever is longer. California also has a special " birth injury" statute of limitations found in Code of Civil Procedure §340.4. However, case law has interpreted the statute of limitations in CCP §340.5 to be applicable.
Q: I am a Kaiser member. Is my newborn bound by the Kaiser contract?
A: Yes. Two California Court of Appeal decisions have ruled that unborn children are Kaiser members and are subject to the Kaiser arbitration agreement immediately upon birth. The facts that the children themselves are not old enough to contract and were not legally in existence when the contract was negotiated have been held to be irrelevant. For this reason, birth injury claims brought against Kaiser or The Permanente Medical Group are subject to the arbitration provisions of the Kaiser contract.
Q: If we prosecute a case on behalf of our child, how long will it take to reach resolution?
A: In California, the Superior Courts operate under what is known as a "fast track" system. Under this system, 80 percent of cases must be resolved within 12 months, 90 percent within 18 months and 100 percent of all cases must be resolved within 24 months. Because it is usually impossible to determine the long-term needs of injured infants until at least 3 years of age, most cases do not resolve before complete neurological assessment can be completed.
Q: Are there limits on the amount of recovery against a doctor or hospital?
A: Yes. Under California law, for more than 35 years, injured patients have been limited in what they can recover against doctors and hospitals. The most unfair limit on recovery is the $250,000 cap on general (pain and suffering) damages for such things as inconvenience, disfigurement, emotional distress, and pain and suffering. California's regressive and outdated law punishes injured children by limiting the maximum amount they may recover for their noneconomic harm. This statutory limit has existed since 1975 and has been repeatedly upheld as constitutional. In addition to this amount, an injured child is entitled to seek recovery for lost earnings, pension benefits and fringe benefits that will result because of a lifetime of disability and such amounts as are required to provide nursing, attendant, medical and rehabilitative care. Defendants are entitled to introduce evidence of available government benefits, including Social Security, private insurance and local school district benefits.
Q: If we file a lawsuit, where will the trial be held?
A: Under California law, an action for medical negligence must be filed in the county where the injury occurred or where any of the defendants (the doctors or hospital) reside.
Q: In a lawsuit for birth injury, how does a jury determine if a doctor's actions were within the standards of good medical practice?
A: A jury considers the testimony of experts, typically other doctors, who testify whether they believe your physician's actions followed standard medical practice or fell below the accepted standard of care.
Q: Do all medical malpractice cases require expert testimony?
A: Under California law, the testimony of a medical expert is almost always required to prove negligence in a birth injury case. The plaintiff has the burden of proof in all such cases. This means that the injured person and his or her lawyer must prove, by a 51 percent or greater likelihood, the fault or culpability of the defendants. To do this, an expert is almost always required. If a plaintiff claiming a birth injury does not have appropriate medical experts, he or she will almost certainly lose the claim.
Q: Are witnesses besides experts needed during the lawsuit?
A: Yes. As we go forward on your behalf toward trial, we will consult with experts in areas such as pediatric neurology, perinatology, life care planning, physical medicine and rehabilitation, vocational rehabilitation, and economics. Using experts in disciplines other than medicine, we will do our best to outline and recover all of the losses your child will suffer in the future.
Q: Who is to blame for such injuries when it comes to legal action?
A: A birth injury is not a simple matter. It is often one of the hardest types of malpractice to prove. Many people are involved in a birth injury lawsuit such as nurses, anesthesiologists, obstetricians and midwives, and some cases have been extended to include an entire hospital. But there is always the question of who the lawsuit should focus on. This is why it is very important to find a lawyer who is experienced when it comes to birth injuries suits.
Q: What is the best way to go about seeking legal action for brain damage caused by birth injury?
A: Parents of an injured child often decide to sue because they feel that some form of malpractice has taken place. In most cases, these parents have no idea what they are getting into, nor do they understand fully what this type of lawsuit will entail. When parents decide to go forward, they will need to hire an experienced lawyer that they feel confident in and one whom they feel can do the best job for them.
Get Additional Answers From A Premier Birth Injury Law Firm
At Walkup, Melodia, Kelly & Schoenberger, we have long been at the forefront of birth injury litigation. Our attorneys in San Francisco, California, have an outstanding track record of success in obtaining multimillion-dollar results nationwide.
Please contact us to discuss the details of your situation and to start pursuing answers. The sooner you get in touch, the sooner we can help. Call us now at 415-906-3764. The initial consultation is absolutely free.