Who can sue and what damages may be recovered in a birth-related medical malpractice claim?
More than 50,000 babies are born in South Carolina every year. The vast majority of these babies are born happy and healthy, but a fraction (roughly 2.9%) are born with birth injuries that range from minor bumps to severe brain damage.
Let's take a look at birth injuries and the legal options that exist for parents in the Palmetto State.
What is a birth injury?
A birth injury is an injury to a newborn child that occurs as a result of some action or inaction during the process of labor and delivery.
Birth injuries may give rise to birth injury claims. A birth injury claim is a type of medical malpractice lawsuit filed against a healthcare provider on behalf of a newborn child who was injured during the process of labor and delivery.
Common birth injuries that may give rise to a birth injury claim include:
- Cerebral palsy
- Brain damage
- Bruising of the head
- Bleeding underneath 1 of the cranial bones
- Breakage of blood vessels in the eyes
- Nerve injuries
- Fractures of the clavicle or collarbone
- Respiratory problems
- Shoulder dystocia
How do I hold a healthcare professional liable for a birth injury in South Carolina?
Healthcare professionals are not liable for every birth injury that occurs. Some birth injuries are unavoidable. Other birth injuries are necessary to avoid some greater harm. For example, a doctor may fracture an infant's clavicle to free the infant from the birth canal before the infant suffocates.
To establish a medical malpractice claim based on a birth injury in South Carolina, 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 South Carolina, expert testimony is required to establish causation. In other words, you must retain a medical expert to testify that the healthcare provider's actions or inactions were the cause of your child's injuries.
What is an affidavit of merit?
In South Carolina, birth-related medical malpractice claims must be filed along with something called an “affidavit of merit.” In short, an affidavit of merit is a document signed by a qualified medical expert stating that:
- The expert reviewed the relevant evidence,
- The expert believes you have a legitimate case, and
- The expert believes the defendant is likely negligent
The affidavit of merit is intended to reduce the number of baseless birth injury claims filed in South Carolina courts.
What damages are available in a South Carolina birth injury case?
Birth injuries can be minor injuries, such as a bruised scalp or a fracture of the clavicle, which typically require minimal treatment, or significant injuries, such as traumatic brain damage, which may require life-long care.
The good news is that South Carolina allows the recovery of economic, non-economic, and punitive damages in birth injury cases:
- Economic damages represent the monetary losses caused by the birth injury, such as medical expenses and future lost wages.
- Non-economic damages represent the non-monetary losses caused by the birth injury, such as pain and suffering.
- Punitive damages are intended to punish a defendant and are only available in cases in which the defendant's conduct was willful, wanton, or reckless. “Willful,” “wanton,” and “reckless” are legal terms that describe actions that are not just careless, but intentional or done with a complete disregard for others' safety.
The bad news is that non-economic damages in birth injury cases (and all other medical malpractice cases in South Carolina) are capped at $350,000 per defendant and can't exceed $1.05 million for all defendants.
As a practical matter, when a parent files a birth injury lawsuit on behalf of their child, any judgment awarded will be placed in a court-controlled trust so that the court can make certain the money is used for the benefit of the child.
How long do I have to file a birth injury lawsuit in South Carolina?
Every state limits the amount of time a plaintiff has to file a lawsuit after suffering an injury. In South Carolina, the statute of limitations for medical malpractice claims is 3 years. However, when the injury is sustained by a minor, the clock is tolled (i.e., the clock does not start ticking) for 7 years.
If you fail to file a birth injury lawsuit within the statute of limitations, your claim will be forever barred and you will not be able to recover any damages.
The statute of limitations is one of the reasons why it's important to talk to an attorney as soon as possible if you think you have a birth injury claim.
Do I need to hire an attorney for my birth injury case?
Birth injury cases are typically more complex than other types of personal injury cases. Typically, several medical experts are needed to testify as to whether the healthcare provider acted appropriately under the specific set of circumstances.
What's more, expert witnesses may be needed to testify as to the appropriate amount of damages.
Finally, birth injury lawsuits tend to name multiple defendants—all of whom have the money and resources to fight tooth and nail.
What if I can't afford an attorney?
It's important to recognize that most South Carolina attorneys handle birth injury cases on a contingency fee basis. This means that the lawyer takes a percentage of the settlement, verdict, or jury award. In other words, the lawyer only gets paid if their client recovers damages and there are typically no upfront charges.
If you're still concerned that you can't afford an attorney, you can talk to a lawyer through the South Carolina State Bar. Keep in mind that these attorneys require clients to meet certain financial conditions (usually their household income must be less than 125% of the federally recognized poverty level).
Did you know that medical malpractice law varies by state?
How to find a personal injury lawyer
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