Find out when birth injuries give rise to medical malpractice claims
According to the Indiana State Department of Health, there are approximately 83,000 live births every year in the Hoosier State.
Though birth injuries are relatively rare, they can be extremely painful for the families that are affected—not to mention emotionally and financially devastating for both the child and the child's parents.
In this article, we'll take a look at birth injuries in Indiana, including the difference between birth injuries and birth defects, who might be liable in a birth injury case, and what damages can be recovered.
Birth injuries vs. birth defects
It's easy to confuse birth injuries with birth defects, but these are 2 different types of injuries:
| Birth injuries | Birth defects |
|---|---|
| Birth injuries are the result of some action or inaction that occurs during the process of labor and delivery. | Birth defects result from a problem that occurs when the baby is developing in the womb. Birth defects are generally the result of genetics or environmental conditions. |
Birth injuries are usually minor but can be severe. When birth injuries are severe, they generally give rise to litigation against a negligence healthcare provider or doctor. Common birth injuries include:
- Bruising of the head
- Bleeding underneath one of the cranial bones
- Breakage of blood vessels in the eyes
- Nerve injuries
- Fractures of the clavicle or collarbone
- Brain damage
- Respiratory problems
- Shoulder dystocia
- Cerebral palsy
What factors increase the risk of a birth injury?
According to the Stanford Children's Health Hospital, birth injuries are more common when:
- The baby is large
- The baby is not head-first in the birth canal
- The baby is born prematurely
- The size or shape of the mother's pelvis or birth canal makes it difficult for a normal vaginal birth
- Labor is difficult or very long
- The mother is overweight
- Cesarean delivery is necessary
- Devices, like a vacuum or forceps, are used to deliver the baby
Birth defects can be minor or severe, but they generally don't give rise to litigation because they're usually caused by genetics or some other factor beyond the healthcare professional's control. However, birth defects might give rise to litigation if the healthcare professional did something during the pregnancy to cause or increase the likelihood of the defect, such as prescribing the wrong type of medication to the mother.
Common birth defects include:
- Missing limbs
- Malformed heart
- Cleft lip
- Neural tube defects
- Congenital heart defects
- Anophthalmia
- Down syndrome
When is a healthcare professional liable for a birth injury in Indiana?
Healthcare professionals are not liable for every birth injury that occurs. Some birth injuries are necessary to avoid greater harm. For example, a doctor may fracture an infant's clavicle to free the infant from the birth canal before the infant suffocates.
In order to establish a medical malpractice claim based on a birth injury in Indiana, you need to prove that:
- Your healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare provider in the same profession, and
- The failure was the cause of your infant's injury.
In a medical malpractice case, the main focus of the lawsuit is generally on what the healthcare professional should have done in a specific set of circumstances. Lawyers for the plaintiff will attempt to persuade the judge or jury that the healthcare professional acted reasonably, while lawyers for the defendant will attempt to persuade the judge or jury that the healthcare professional acted unreasonably. These arguments are generally made by presenting testimony from experts in the field.
Lisa and Kevin Ort filed a lawsuit on behalf of their son alleging that doctors at Lutheran Hospital of Indiana committed medical malpractice during his birth. The lawsuit alleges that doctors failed to adequately monitor their son's condition and failed to timely respond to persistent changes in his fetal heart rate.
Lisa and Kevin Ort's child was not diagnosed with any abnormalities after his birth, but he was diagnosed with spastic diplegia (a mild form of cerebral palsy) at 4 years old.
A medical review panel determined that doctors failed to meet the appropriate standard of care, and an out-of-court settlement was reached.
What damages are available in an Indiana birth injury case?
In Indiana, you can receive economic and non-economic damages in an Indiana birth injury case:
- Economic damages are the objectively measurably monetary losses that stem from the injury. Economic damages include medical expenses and lost wages.
- Noneconomic damages are the subjective non-monetary losses that stem from the injury. Noneconomic damages include pain and suffering.
However, the Indiana Medical Malpractice Act limits the amount of damages you can recover in a medical malpractice lawsuit.
The maximum amount of damages (or "cap") allowed for a medical malpractice claim changes every couple of years, but the current cap is $1.8 million.
Additionally, Indiana prohibits attorneys in medical malpractice cases from receiving more than 15% in fees.
How do I file a birth injury claim?
Indiana requires plaintiffs to follow a strict procedure when filing birth injury claims.
In short, plaintiffs must file a complaint with the Indiana Department of Insurance and have their case evaluated by a medical review panel before they can file a civil lawsuit.
Here's how the process works:
- The parent files a complaint on behalf of the child with the Indiana Department of Insurance and submits a $5 filing fee.
- The Indiana Department of Insurance forwards a copy of the complaint to each named defendant and their insurers.
- The injured patient or any of the named defendants must request the formation of a medical review panel.
- The medical review panel (made up of 3 physicians) reviews the following information: medical charts, x-rays, lab tests, excerpts of treatises, and testimony from witnesses and the parties.
- Within 180 days of receiving the complaint, the medical review panel drafts a report concluding whether, in the panel's opinion, any of the defendants committed malpractice.
- The parents decide whether to file a medical malpractice lawsuit in civil court. If the parent decides to file a medical malpractice lawsuit, the panel's report is admissible in court but is NOT considered conclusive.
How long do I have to file a birth injury lawsuit?
Every state has a statute of limitations that determines how long you have to file a lawsuit. In Indiana, the statute of limitations for most birth injury lawsuits is 2 years from the date of the malpractice.
However, filing a complaint with the Indiana Department of Insurance will "toll" the statute of limitations for 90 days. In other words, once you file the complaint, the statute of limitations clock pauses for 90 days before resuming.
Did a healthcare professional you trusted let you down? Use our free legal directory to get in touch with an experienced Indiana birth injury attorney today.
Did you know that medical malpractice law varies by state?
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