Birth injury is defined as an impairment of the neonate’s body function or structure due to an adverse event that occurred at birth. The overall incidence of birth injuries has declined with improvements in obstetrical care and prenatal diagnosis. The reported incidence of birth injuries is about 2% in singleton vaginal births and 1% in singleton c-sections. The injury may occur during labor, delivery, or after delivery, especially in neonates who require resuscitation in the delivery room.
There is a wide spectrum of birth injuries ranging from minor and self-limited problems (eg, laceration or bruising) to severe injuries that may result in significant neonatal morbidity or mortality (ie, spinal cord injuries). The 10 most common birth injuries include: Brachial Plexus Palsy (Erb’s Palsy), bone fractures, cephalohematoma, caput succedaneum, perinatal asphyxia, intracranial hemorrhage, subconjunctival hemorrhage, facial paralysis; spinal cord injuries; and cerebral palsy.
According to the National Healthcare Quality Report (AHRQ), around 6.68 of every 1,000 birth injuries in the year 2000, in the United States, occurred to male infants, whereas 5.08 of every 1,000 birth injuries happened to female infants. In the same year, 4.33 out of every 1,000 birth traumas occurred in for-profit, private hospitals and 7.15 out of every 1,000 birth traumas occurred at private, non-profit hospitals.
Birth injuries are highest for mothers with birthing tool-assisted deliveries from ages 25-34, and lowest in mothers who range from 40-54. However, the birth injuries for mothers delivering non-instrument assisted vaginal births is only high for ages 25-29.
In Maryland, the statute of limitations for medical malpractice claims is five (5) years from the time of the injury or three (3) from the discovery of the injury, whichever is shorter. The SOL on injuries to minor children generally do not begin to run until the child reaches 18 years of age. Wrongful infant death claims must be filed within three (3) years from the date of death.
The distribution of money after a successful lawsuit will not always be the same. In a birth injury case, the vast majority of the recovery is for the child. Therefore, the law requires that the money be placed in a protected trust and only used for the child’s direct benefit.
This can be difficult for many parents to accept. We often hear things like “why would anyone think I would steal from my baby?” Or, “I have other children who have been impacted by the added time and money it has cost to care for the injured baby, why can’t we use the money to help our whole family?”
These are legitimate and totally understandable questions. Dealing with these issues is never easy. That is why we continue to work with our clients even after the case is successfully resolved. We work trust managers, trust lawyers, and asset managers who are experts in this area of law, and who understand that our clients need to be cared for as a family unit. While each case is different, our goals are always the same: (1) ensure that the injured child will be able to afford the care and services he/she will need in the future; (2) ensure the injured child will be safe and secure even after his/her parents can no longer care for him/her; (3) ensure that the family is satisfied with the plan that has been put into place.
Generally, the difference lies in whether the outcome was preventable.
The development of a baby from two individual cells into a tiny human requires almost unimaginably complicated biological processes. If something goes “wrong” at any point in during the process, the child may not develop properly. These “errors” in the process of development lead to “birth defects”, such as a hole in the child’s heart, a missing arm, club feet, or a cleft palate. There are cases where these outcomes can be linked to a drug that was prescribed to the mother, or some environmental toxin to which she was exposed. However, the vast majority of these “process errors” are “birth defects” and there is no legal action that can be taken.
“Birth Injuries” are outcomes that could have and should have been prevented. Birth injury cases all start with identifying a time during the baby’s development or delivery where the medical providers had a chance to do something (or not do something) that would have prevented the child’s injury. If such a time exists, and it can be shown that proper medical care would have spared the child from the harm he/she currently suffers, then it is a birth injury case.
Signing a consent form does not take away your basis for a lawsuit. No one, including doctors and nurses, can touch you, give you drugs, or run tests on you without your permission. Therefore, you must sign a consent form to allow the doctors and nurses to treat and care for you. However, by signing the form you are not giving the doctors and nurses permission to make avoidable mistakes or be negligent in a way that harms you or your baby.
These cases are usually complicated and require significant time to properly develop and litigate. Generally, you can expect that it will take several months just to gather the medical records and other information we need to evaluate the case. Once that step is completed, we will usually spend another month or two working with medical experts to evaluate the medical care and scientific issues in the case. If our analysis concludes that a lawsuit should be filed, it will usually take another 15 to 18 months for the suit to reach conclusion.
Caring for an injured child can be financially and emotionally draining. The stress can understandably lead to a feeling of desperation making “lawsuit loans” look attractive. However, we strongly discourage our clients from taking these loans. The costs of the loans are extraordinary, taxing, and almost never make good financial sense. We prefer to work with our clients to ensure they are receiving all of the government and charitable services available to them, and make every effort to find alternative ways to alleviate their stress.
Nothing. There is no cost to you unless we win. If the case is successfully resolved, the costs of the lawsuit are repaid from the recovery.