Joy and celebration should fill the home when a new child joins your family. But there are cases where sadness, fear, and anxiety dominate the day. This is because sometimes our children are the victim of a birth injury. While advances in medical care and better training and attentiveness of doctors and nurses have brought down the incidence of birth injuries over the past decade (just below 0.2% of births in the U.S. in 2012 experienced some form of birth injury), the numbers are of little comfort to those families with a child injured at birth. They will likely face a wide range of emotions: heartache, anger, frustration, guilt, sadness, and, of course, anxiety over an uncertain future for their child and their family. This is why understanding the cause of your child’s injury is so important.
…not all birth injuries are the result of medical malpractice. Sometimes despite a doctor’s or hospital’s best efforts babies get injured.
Let me say at the outset that not all birth injuries are the result of medical malpractice. Sometimes despite a doctor’s or hospital’s best efforts babies get injured. This, of course, doesn’t lessen your hurt and pain but it may limit some of the options you have to protect and provide for your child’s future. (If you absolutely know that you fall into this category, please, please, please understand that there are still many reasons for hope, and there are resources available to help you plan your child’s future. Go here to download a whitepaper that discusses your options).
It is possible, however, that your child’s injury was avoidable; that is, it only happened because your doctor or the hospital committed a grievous error. Understandably, few parents are experienced or educated enough in how birth injuries happen to decide on their own if their child’s injury was inevitable or avoidable. Relying on your doctor or hospital to tell you the truth often isn’t the best option. It is human nature to deny responsibility when something goes wrong and medical providers are no exception to human nature. This is why people hire lawyers. To find out the truth. But you’re doing yourself no favors if the lawyer you hire doesn’t know much or is extremely inexperienced about how birth injuries occur and which of them might be the fault of your doctor.
So how do you make a good decision? By learning the basics of birth injuries so that you can have an intelligent conversation with your lawyer-to-be. We believe that everyone can learn about both the medical care their child should receive, and the legal help they may need, so long as it is explained in plain English. It’s worth the effort. Making the right decisions now prevents additional heartache-maybe even devastating heartache-later. Here are some things your lawyer needs to know:
Did the injury occur prior to the birth? (Prenatal Injuries)
Some birth injuries happen before a baby is born. This can occur when the mother picks up a treatable infection that goes untreated. Such infections can directly injure a baby, or they can cause mom to get sick enough so that the baby is indirectly affected (e.g., deprived of nutrition or oxygen). Or it can occur when the mom is prescribed or is taking a medication (or using alcohol or illegal drugs) that can pass through her to the baby (or the converse: mom isn’t given a medication or supplement she needed to keep baby healthy; e.g., folic acid). Sometimes it happens because mom was in a car accident, fell down, or was otherwise traumatized. Once again, like infection, trauma can directly or indirectly hurt a baby. Finally, sometimes these injuries occur because mom’s anatomy (through no fault of her own) is abnormal and puts the baby at risk.
As you can probably see many of these injury risks can and should be discovered before they harm your baby. An attorney experienced in birth injury litigation should look at the medical evidence, like pre-natal doctor’s notes, ultrasounds or the baby’s heart tracings, for evidence of when your baby was injured. She should also patiently listen to what you have to say. Many of the factors involved in pre-birth injuries are things a parent may know about. If your lawyer isn’t asking about them, then you should be asking him/her about them.
Bring a list of medications (including over-the-counter supplements) and ask the lawyer if any of them could have caused injury to your child. In other words, ask your lawyer what they are doing to determine whether your child’s injury occurred before birth. Even if they conclude the injury happened after or during birth, they should still spend substantial time looking at these pre-birth factors because you can be darn sure the defense will. (They’ll be looking for a factor that wasn’t their fault so they can point to it and away from themselves).
Did the injury occur during labor and delivery?
The vast majority of preventable birth injuries occur during labor and delivery. A common pattern in labor and delivery injuries is that the baby gets in trouble-i.e., has trouble getting proper oxygenation-and the doctors either don’t notice or are late in noticing (or both), and fail to quickly deliver the baby before she is injured. There are many, many reasons why babies can get into trouble during delivery like the umbilical cord gets twisted, the amniotic sack breaks too early, the labor goes on too long and the contractions stress the baby.
Generally speaking, the reason doesn’t matter, because medical care providers are required to know that there are many ways for a baby to get into trouble, and are required to keep an eye on the baby in case it occurs (and if it does, immediately deliver the baby by C-Section). Your lawyer needs to know all of this and needs to know where to look to find out if this was the reason for your child’s injury.
Once again, the medical records will tell them a lot, and so might you. One of the things we always look at is whether the parents were included in the medical decisions about delivery. You may be surprised to find out that doctors make critical, life-or-death decisions about delivery without including the parents. Questions like how long to keep trying for a vaginal delivery, using contraction medications (Pitocin), or using “operative” delivery methods like vacuum or forceps extraction are decisions they often make without consultation. Write down a detailed account of what happened in preparation for your meeting with your lawyer. Ask whether you were left out of any key decisions. Ask whether the medical team missed signs of trouble.
Birth injury cases are complicated and require extensive knowledge of legal and medical practices. You should reach out for help from lawyers with experience in both medical malpractice and birth injury litigation. Don’t be afraid to ask questions. And don’t be afraid to walk out if the lawyer cannot answer them to your satisfaction. Selecting the right attorney is one of the most important things you can do to help your child.