Birth Injuries

During the normal birthing process, infants experience birth injuries.  Most are inconsequential: there may be marks from forceps on the baby\'s face, or the newborn’s feet may be bruised during a breech delivery.  These minor injuries resolve themselves naturally within the first few days of life.

Occasionally, natural deliveries are difficult and babies are seriously hurt during birth.  Bones can be fractured.  There can be permanent damage to both the cranial nerve and spinal cord.  Injuries to the abdomen can result in hemorrhage, with the newborn’s liver being particularly vulnerable. If the internal bleeding is not promptly discovered and treated, the baby will suffer symptoms of shock, and perhaps die.

Assisted deliveries have their own set of risks.  Vacuum-assisted delivery devices have been found to cause subgaleal hematoma and intracranial hemorrhage.  Cesarean deliveries are accompanied by the standard risks of any surgery (infection, damaged organs, need for blood transfusions).

The baby size and the baby\'s location during labor and delivery are other factors that may contribute to birth injury.  Babies born before 37 weeks of age are considered premature: their bodies are fragile and more susceptible to injury.  Infants that weigh 8.5 pounds or more are considered large for travel through the birth canal.  These babies may require manual assistance during birth that can result in permanent harm.

Erb\'s Palsy, Klumpke\'s Palsy, Horner\'s Syndrome, and Brachial Plexus Palsy are all types of brachial plexus injury (BPI).  Here, the newborn\'s nervous system is injured during birth, as a result of Shoulder Dystocia (SD). 

Shoulder Dystocia occurs when the infant\'s shoulder becomes wedged against the mother\'s pubic bone during delivery.  The baby cannot move, and measures must be undertaken to complete the delivery.  If excessive force is used on the infant’s head and neck, than the brachial plexus nerves can be stretched or torn, resulting in serious or permanent neurological injury such as cerebral palsy.

When babies are seriously or fatally injured during birth due to complications in either labor or delivery, an attorney specializing in medical malpractice has the necessary expertise to evaluate the incident for possible legal action.  Parents may sue on behalf of the child, as well as on their own behalf, in order to obtain monetary awards compensating for medical treatment, pain and suffering, future therapy and rehabilitation needs, and even funeral expenses.

Since injuries can occur prior to birth, during delivery, and in post-natal care (e.g., improper care or treatment of infection), it is possible to have several health care providers as joint defendants in a medical malpractice lawsuit.  Medical malpractice attorneys recognize that physicians; nurses; assorted hospital staff; EMS technicians; medical device manufacturers or suppliers; drug companies; and others can share responsibility for harm suffered by the baby.

Trends:   The tort reform movement has had a profound impact on birth injury litigation.  Pointing to physicians, who began choosing to relocate new locations or to changing specialties rather than continue working with expectant mothers and newborns due to rising malpractice insurance costs and litigation risks, state legislatures have passed legislation limiting the amount of recovery available in medical malpractice cases involving birth injury claims.

However, in 2006, two proposed medical liability reform statutes failed in the U.S. Senate: first, the Medical Care Access Protection Act (MCAP), modeled after Texas reform legislation.  It included a cap on non-economic damages against physicians; limited attorneys’ fees; and contain expert witness reforms.  The Senate also failed to pass the Healthy Mothers And Healthy Babies Access To Care Act,  which included many of the same reforms as MCAP and was described by sponsoring Senator Allard (R-CO) as a bill “to improve women\'s access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the delivery of obstetrical and gynecological services.”

Another trend impacting birth injuries is the expansion of both state and federal legislation protecting and providing for the disabled.  At the federal level, the Americans with Disabilities Act (ADA) provides long-term support to those suffering such birth injuries as cerebral palsy, brain injury, spinal cord injury and other permanent disabilities.  States are passing extended legislation as well: every state has its own Department of Rehabilitation Services dedicated to helping those with long-term disabilities with such life-enhancing assistance such as Braille signage and transit shuttle vans.

For more information:

The Merck Manual – Birth Injuries

EMedicine – Birth Trauma

Americans With Disabilities Act – Resources

American Bar Association Government Affairs Office/Medical Liability Law

American Bar Association Standing Committee on Medical Professional Liability

White House Policy Page – Medical Liability Legislation

American Association of Neurological Surgeons – Medical Liability Reform Watch

American Association of Justice (fka ATLA) – Medical Liability Reform Watch