Nothing is more beautiful than the birth of a child. Likewise, there is nothing more tragic than a child who suffers irreparable harm during the birth process. “Birth trauma” is a term that broadly defines the injury of a baby during delivery. The causes of birth trauma can range from a number of factors, including: 1) premature birth of a baby before 37 weeks; 2) cephalopelvic disproportion (the size and shape of the mother's pelvis is not adequate for the baby to be born vaginally); 3) dystocia (difficult labor or childbirth); 4) prolonged labor; 5) abnormal birthing presentation (such as breech delivery); and 6) maternal obesity. https://www.stanfordchildrens.org/en/topic/default?id=birth-injuries-90-P02687. Any of these conditions can lead to a number of injuries to a baby during the birthing process.
While each of these origins of birth trauma can lead to a number of temporary complications, there are two major problems they can produce: 1) asphyxia (a condition arising when the baby is deprived of oxygen during the birth process); and 2) trauma (any long-term injury to the baby). There may be times when the causes of birth trauma cannot be avoided because of anatomical or biological complications. However, when a doctor makes a mistake, the resulting birth trauma could have been avoided and is likely medical malpractice.
This article will look at a few common issues with medical malpractice unique within the context of birth trauma.
Our website has a complete section on medical malpractice. You are encouraged to consult our Medical Malpractice page for additional information. This section will concentrate on those aspects of medical malpractice that are unique to birth trauma.
Central to any medical malpractice is the duty the healthcare professional owes to a patient. Duty is established by the standard of care a healthcare professional owes to a patient. The standard of care for a doctor delivering a baby can only be established through the expert testimony of a gynecologist/obstetrician. Only a doctor with the expertise necessary to the delivery of a baby can testify to the standard of care to be used by a doctor delivering a baby. This may sound elementary but establishing the breach of care is step one in a birth trauma medical malpractice case.
Similarly, to recover for medical malpractice in the birth process is the need to prove a breach of the standard of care. To prevail on a claim of medical malpractice, a person must also prove the doctor performing the delivery breached the standard of care. This would again require the testimony of an expert.
The standard of care and breach of the standard of care are unique to birth trauma because it is such a highly specialized medical procedure with complicated technical issues. The delivery of a child may be routine until it is not. The various complications of birth trauma will often require consultation with multiple experts in the field of gynecological medicine.
A significant issue that must be proven in any medical malpractice birth trauma case is the issue of causation. We have already mentioned several causes of birth trauma. Some of the conditions, such as a premature birth, prolonged birth, or a breech delivery, may not be avoidable. Put differently, these or other naturally occurring causes may happen regardless of the actions of the medical staff performing the delivery. If the mistakes of the medical staff are not the cause of an injury to a baby, then the injured infant could not successfully sue for medical malpractice.
The decisions of parents can also come into play when dealing with causation. The doctrine of avoidable consequences is a legal defense to causation. Braverman v Granger, 303 Mich. App. 587, 844 NW2d 485 (2014). The idea behind the doctrine of avoidable consequences is that the patient made a decision regarding treatment that gives rise to an avoidable consequence. For example, a patient who denies a blood transfusion for religious reasons and suffers complications cannot later claim medical malpractice by his or her doctor. The doctrine of avoidable consequences may prevent a recovery in a medical malpractice birth trauma case.
As with the standard of care and breach of the standard of care, the only way to prove causation is with expert testimony. Whether a doctor committed malpractice or an avoidable consequence occurred as the result of a choice of treatment made by the infant’s parents, can only be established through the testimony of an expert.
The costs of raising a child injured during the birth process can be staggering. The costs can range from a few extra days in the hospital at the time of the birth up to a lifetime of medical procedures, personal care, and even funeral expenses. These damages are generally categorized as: 1) economic and 2) non-economic. “Economic damages” represent the medical costs, rehabilitation, personal care, and funeral expenses that result from the medical malpractice. “Non-economic damages” are primarily represented by the pain and suffering of the infant. The distinction is important because there may be statutory limits on the non-economic damages that can be recovered.
When medical malpractice occurs with birth trauma then there is a number of potential defendants. Certainly, the medical team, consisting of the doctor and nurses in the delivery room, are likely candidates to be sued for medical malpractice. However, the hospital where the delivery takes place would likely be liable under the theory of respondeat superior or more commonly vicarious liability.
The importance of suing multiple defendants is that it makes recovery of all damages sustained during the medical malpractice more likely. In the context of birth trauma medical malpractice, defendants are generally jointly and severally liable for damages to the injured infant. The concept of joint and several liability allows an injured infant to recover all, or any portion of his or her damages, from one defendant or multiple defendants. The flexibility in recovery of damages significantly enhances the ability of the injured infant to obtain a complete recovery.
Statutes of Limitation
Another important consideration before bringing any lawsuit is the applicable statutes of limitation. A statute of limitation is a law that limits the time for bringing a lawsuit. When dealing with birth trauma medical malpractice, the issue of statutes of limitation is worth more than a mention.
Historically, the statutes of limitation allowed injured minors to bring actions, such as medical malpractice, withing a “reasonable time of reaching majority”. However, this is not the case anymore. Under MCL 600.5851(7), if a medical malpractice claim accrues before a child’s 8th birthday, the claim must be brought on or before the child’s 10th birthday. The time restriction created by the statute of limitation is one parents must be aware of to avoid losing the right to sue.
What should I do?
If you suspect medical malpractice in the delivery of your child, then you should speak with Arnold E. Reed & Associates, P.C., today. Our team of lawyers can provide you with the knowledge, expertise, and guidance necessary to determine if medical malpractice occurred to your son or daughter during the birth process.