Overview of your legal options if your child is injured during labor and delivery
Birth injury rates have steadily declined over the last few decades. Nevertheless, nearly 3 out of every 1,000 children sustain a birth injury. While this might not sound like a lot, it can totally change your life if you happen to be one of the parents raising a child with a birth injury.
If your healthcare provider is responsible for something that went wrong during your child's birth, you may be able to receive compensation to help cover the costs of treatment.
Let's take a closer look at birth injuries in Tennessee.
What is a birth injury claim?
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.
Birth injuries can be minor (for example, facial bruises or broken blood vessels) or significant (for example, permanent brain damage or nerve damage).
Common examples of
birth injuries
- Brachial palsy occurs when the group of nerves that supplies the arms and hands is injured. Depending on the severity of the damage, loss of movement can be permanent or last for just a few months.
- Brain damage can occur when the baby doesn't receive oxygen for some time.
- Bruising or swelling can occur when the child has trouble passing through the birth canal. In most cases, bruising heals quickly with little or no treatment.
- Fractures of the clavicle or collarbone may occur when there's trouble delivering the child's shoulder or during a breech delivery.
- Subconjunctival hemorrhages occur when the small blood vessels in the eyes of a baby break. The injury is common and usually heals on its own within 10 days.
Birth injuries occur during labor and delivery, whereas birth defects occur as a result of genetic or environmental conditions while the baby is developing in the womb. Because birth defects aren't typically someone's fault, they don't typically lead to litigation.
Infographic courtesy of BrownTrialFirm
How to prove a birth injury claim in Tennessee
To receive compensation for a birth injury, you have to prove that someone else's carelessness caused your child's injury.
Specifically, you have to prove that:
- A healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare professional in the same profession, and
- The failure was the cause of your child's injury.
To establish that your healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare professional in the same profession, you'll need to retain medical experts who will testify and provide reports in support of your claim. The need for medical experts is one of the reasons why birth injury claims tend to cost more to litigate than other personal injury claims.
Common examples of actions that might lead to a birth injury lawsuit include:
- Failure to diagnose or misdiagnosis
- Failure to monitor the baby
- Misreading or ignoring test results
- Unnecessary surgery
- Surgical errors
- Premature discharge
- Failure to order proper testing
- Failure to recognize symptoms
But tragically, this is exactly what happened.
Kelly sued the hospital alleging that doctors failed to consider her prior medical history when managing her labor and delivery. Kelly alleged that, had the hospital reviewed her medical history, they would have found that she suffered from placental insufficiency (a disorder where the placenta fails to provide sufficient oxygen to the fetus). As a result, they would have likely performed a cesarean section and her child wouldn't have suffered brain damage.
Judge Aleta A. Trauger of the U.S. Court for the Middle District of Tennessee agreed with Kelly and, after a lengthy trial, awarded her child $15.1 million for future medical care, lost earnings, pain and suffering, and loss of enjoyment of life.
Wrongful death claims
If the unthinkable happens and your child suffers a fatal birth injury, you can file a lawsuit against the responsible healthcare provider. The type of claim that you'll file is called a wrongful death claim.
To establish a wrongful death claim, you'll need to prove liability the same way you would have to had your child lived.
If your claim is successful, you can recover compensation for funeral expenses, as well as compensation for your loss of care and affection.
What compensation can you receive for a birth injury?
Tennessee allows plaintiffs to recover economic, non-economic, and punitive damages:
- Economic damages represent the monetary losses associated with the birth injury (medical expenses, future lost wages, etc.)
- Non-economic damages represent the non-monetary damages associated with the birth injury (pain and suffering, etc.)
- Punitive damages are meant to punish the defendant and are available in cases where the defendant's actions were malicious, fraudulent, or reckless.
Birth injury damage limits ("caps")
Non-economic damages are capped in the amount of $750,000. In cases where the child suffers "catastrophic injuries," the cap is increased to $1 million. Catastrophic injuries include:
- Spinal cord injuries
- Amputation of 2 hands, 2 feet, or 1 of each
- Third-degree burns over 40% or more of the body
- Wrongful death
Additionally, Tennessee places a cap on punitive damages in the amount of $500,000—or twice the amount of the compensatory damages awarded, whichever is greater.
How long do you have to file a birth injury claim?
All states limit the amount of time a plaintiff has to file a lawsuit. This time limitation is called the statute of limitations.
The reason for the statute of limitations is two-fold:
- It encourages plaintiffs to sue while the evidence is still fresh, and
- It prevents plaintiffs from threatening defendants with litigation indefinitely.
Tennessee has one of the strictest statutes of limitation in the country.
What steps should you take immediately after a birth injury?
After a birth injury, there are several steps you, as the parent or guardian of the injured child, should take in order to improve your chances of recovering damages down the road.
- Focus on your child's health. Your priority should be your child's health. If it's safe to do so, seek treatment somewhere other than the hospital where the birth injury occurred.
- Document everything. It's never too early to start keeping track of all the expenses related to the injury. Keeping good medical records can help ensure you receive all the damages you deserve down the road. Consider using our expenses/damages worksheet and pain journal form to help stay organized.
Damages/Expenses Worksheet
Damages worksheet to track expenses for your injury claim (medical treatment, property damage, lost wages, prescriptions)
Download in PDF format
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
Download in PDF format - Contact an attorney. Once you've sought treatment for your child, contact an attorney who has experience handling Tennessee birth injury cases. Your lawyer can help determine whether you have a valid claim and can advise you with respect to the next steps you should take.
- Get support. Parents who experience a birth injury can benefit from more than just medical and legal help. During this emotionally-trying time, it's a good idea to reach out to family and to support groups in your area.
Did you know that medical malpractice law varies by state?
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