How to know if there was medical malpractice, and what you can do if it affected your baby
The moment has arrived. You feel your body preparing for labor (or beginning the process of being in labor), and you’re eager to meet your newest arrival. You grab your “go bag” for the hospital and head out—knowing that the rest of your life is about to begin alongside the new life you’ve created.
And while that all sounds beautiful and wonderful, the reality is that birth can be an agonizing, difficult, painful and sometimes devastating process. Not everyone returns home 48 hours later with a sweet-smelling baby who’s eating, sleeping, crying and ready to meet the world.
Having a baby is overwhelming, even if this is your 2nd, 3rd or more. The birth hormones trigger intense emotions—you’re likely sleep deprived both before and after the actual birth, and caring for a newborn is a lot of work, particularly if you have other children at home.
But if your baby has some medical difficulties at or shortly after birth, it can throw your universe into even more of a tailspin. In addition to the typical tasks and emotions around having a newborn, you might also be navigating the worlds of medical specialists, complicated diagnoses, financial considerations of long-term care for a child with a disability, and looking ahead to a future that isn’t what you expected.
There could also be another nagging question in your mind:
Was my baby’s birth injury caused by medical malpractice?
While knowing the answer to this question can’t fix your baby’s medical issues, what it can do is help with the extreme financial burden your family could be facing for the rest of your child’s life. If a doctor’s or the hospital’s negligence caused your baby’s injury, you could be entitled to financial compensation to cover your related costs, both now and in the future.
What is a birth injury?
A birth injury is the result of something that happened during the process of delivering a baby.
Some birth injuries are not preventable and not the fault of the doctor, the birthing parent or anyone else.
But in some instances, a birth injury could be caused by medical malpractice. This is when a medical professional fails to provide treatment according to the appropriate standard of care.
If the doctor makes a mistake because they were negligent, it could be malpractice.
Most common causes of birth injuries:
- Pulling or twisting the infant during delivery
- Miscalculating the size of the fetus
- Premature or post-mature delivery because of improper dating
- Rh incompatibility
- Failure to provide oxygen to a newborn if needed
- Deliveries using forceps or vacuum extraction
- Failure to perform an emergency cesarean section (C-section)
- Failure to detect or monitor distress or fetal heartbeat
- Incorrect medication or dosage to the pregnant person during pregnancy or labor
The birth injury could be medical malpractice if 1 or more of the following occurred:
- Failure to diagnose a condition or an incorrect diagnosis
- Misreading or misunderstanding lab results
- Conducting an unnecessary surgery
- Making a surgical or medical error
- Giving improper medication or dosage
- Providing incomplete or poor follow-up care
- Prematurely discharging a patient from care
What is the "appropriate standard of care"?
This is an important element of medical malpractice.
A doctor or hospital’s behavior would be evaluated to see if a physician or provider with the same training and in the same community would have taken the same action (or inaction) in that situation. This distinction is necessary because a doctor or hospital in a large urban area likely has a wider variety of resources, technology and access to specialists than a doctor in a smaller market. You can’t hold a doctor responsible for a mistake made because of a lack of available resources or tools.
Likewise, a doctor would be practicing in the area of medicine for which they were trained. If something happens during the delivery that would require care from a more specialized doctor, the expectation would be to seek the assistance of that type of doctor. So, an obstetrician might become aware that a baby requires the care of a specialized pediatric cardiologist, but if there isn’t one in that hospital or city, the obstetrician would be expected to do the best they can within their area of training and the resources available to them at the time.
What if my baby has a birth defect?
There’s an important distinction between a birth injury and a birth defect. A birth injury happens during the process of labor and delivery and is sometimes the result of medical malpractice.
A birth defect is a problem that is the result of your child’s DNA. For example, Down’s Syndrome, cleft palates, heart murmurs, a club foot or other such issues can arise because of your child’s genetics. These are not preventable, not the fault of the parents and not medical malpractice. A doctor might fail to detect certain defects, but the defect is not caused by the doctor’s action or inaction.
However, there could be defects that happen because of external factors. For example, if the pregnant person is in a car accident, falls or experiences some other physical trauma, it could cause problems for the unborn baby. Medications can also cause birth defects. If a doctor prescribes a medication that is known to be unsafe for an unborn baby, and if the doctor knew or should have known that the person was pregnant, that could be malpractice.
Alabama Medical Liability Act of 1987
Under this law, the plaintiff must prove 2 things:
- The provider breached the standard of care by an act or omission, and
- The breach was the cause of the person’s injury or death.
Alabama birth injury statute of limitations
There’s an Alabama statute of limitations, or a time limit, for when you can file a claim for a birth injury or any other medical malpractice.
You must file a lawsuit within 2 years from the date of the malpractice.
If it’s a wrongful death action, the clock begins to run on the date of the person’s death, and there is a 2-year time limit for filing a wrongful death medical malpractice lawsuit.
However, if the malpractice was not immediately discovered, the lawsuit may be filed within 2 years following the discovery of the malpractice but no more than 4 years from that date.
The other exception to the 2-year time limit is if the injured person is under 4 years old. If the injured person is less than 4 years old at the time of the medical malpractice (which is certainly the case if it’s a birth injury), then the minor child has until their 8th birthday to have a medical malpractice claim filed on their behalf.
Types of birth injuries
The CDC reports that there are about 57,000 Alabama births each year. Of those, the agency estimates about 7 in every 1,000 babies suffers some type of birth injury.
While there are a variety of injuries that could affect your baby, there are some that are more prevalent than others.
10 most common types of birth injuries
1. Brachial Plexus Palsy (Erb’s Palsy)
2. Bone fractures
3. Cephalohematoma
4. Caput succedaneum
5. Perinatal asphyxia
6. Intracranial hemorrhage
7. Subconjunctival hemorrhage
8. Facial paralysis
10. Cerebral palsy
These conditions can result in decreased strength, stamina and nerve sensations; cognitive or emotional impairments or other psychological problems; failure to thrive and grow; and osteoarthritis and other joint dysfunction.
Fetal distress
A fetus is in distress when they’re not tolerating labor, and this is usually evident by electronic fetal heart monitoring. A baby in fetal distress sometimes needs to be delivered immediately, which means an emergency C-section is better than waiting for labor to take its course.
Fetal distress can be caused by a placenta that’s not functioning normally, an umbilical cord that’s wrapped around the baby’s neck, or other reasons like too frequent or strong contractions. Fetal distress often results in low oxygen to the fetus that, over time, could cause brain damage. Cerebral palsy is a result of brain damage from lack of oxygen.
Trauma
A baby is evolved to withstand the force of labor because its skull protects the brain. However, some babies are too large to safely pass through their mother’s pelvic bones. If the baby’s head is too large for their mother’s pelvis, the contractions can force the head against the hard pelvis, which could cause significant trauma and brain damage.
Some doctors will use forceps to grasp the baby’s head and attempt to pull them out or reposition them in order to make a vaginal delivery possible. However, forceps can cause skull fractures or brain injuries, like a hematoma.
A vacuum extractor is also used to facilitate vaginal delivery. It’s a rubber cup that’s inserted onto the baby’s head, tightened and then used to “suck” out the baby. Similar to forceps, a vacuum extractor can cause a hemorrhage between the skull and scalp or other brain injuries.
What should you do if you believe your baby has suffered a birth injury?
Your 1st priority is to get your baby appropriate medical care for their condition. There might be a treatment that could reverse the effects of a birth injury, depending on what it is and how severe.
Next, you should be compensated for the costs associated with that treatment and other expenses related to the injury if it was caused by malpractice.
Remember that mistakes happen, and not every error is malpractice. In order for an error to be malpractice, it has to rise to the level of negligence.
If you think that there was negligence, your next stop should be to have your child evaluated by a different doctor—preferably a specialist—who is not connected to the doctor who performed the delivery (i.e., in a different group, practice or even a different geographic location).
Ask the 2nd doctor for their medical opinion about the nature of your baby’s injuries and their cause. If they think your baby has birth injuries that could have been caused by malpractice, you should consult an Alabama birth injury lawyer.
Your lawyer will consult medical experts, financial experts, actuaries and other specialists in order to determine not just what the injuries have cost you in the immediate sense—but also what a potential lifetime of care for your child could look like. If your baby’s injury is severe and could leave them with a lifelong disability, you could be looking at a substantial damage award. The sooner you consult a lawyer, the better.
You can use the Enjuris law firm directory to find an Alabama birth injury lawyer who can help you and your baby get the compensation you need and deserve.
How to find a personal injury lawyer
How do you know you've found the right attorney to take on your case? Where do you even begin your search? Enjuris spoke with personal injury attorneys in our directory to find out their recommendations for hiring the best lawyer. Read more
