The legal rights of families dealing with birth defects such as seizures and much more

Article provided by Barry D. Lang M.D. and Associates
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What is a birth injury?

A birth injury is an injury that happens to a baby during the birthing process. The majority of birth injuries are minor and will heal on their own within the first few weeks after delivery. For example, minor birth injuries include the bruising, swelling and minor nerve damage that may occur as the baby moves through the birth canal.

Other birth injuries, however, are more severe and may cause long-term damage to the child. For example, if the baby is deprived of oxygen for even a short period of time, the child could develop cerebral palsy. Cerebral palsy is a condition that occurs when there has been trauma to the brain, affecting the development of the child's ability to control and coordinate movement. Cerebral palsy can cause seizures, vision and hearing problems and mental retardation. It is estimated that 5% of cerebral palsy cases are linked to birth injuries.

Erb's palsy is another serious condition that can occur as a birth injury. Erb's palsy occurs when the nerves in the neck and shoulder are stretched or torn, resulting in weakness or paralysis in the arm. The nerves can be stretched during a difficult delivery, either through the natural birth process or if the physician has to use force to deliver the baby. In the majority of cases, the effects will be temporary. But in cases where the nerves were torn, the damage can be long-term or even permanent and may require surgical repair.

Other examples of birth injuries include:

• Facial paralysis
• Fractures
• Soft tissue injuries of the scalp (caput succedeneum)
• Broken blood vessels in the eyes (subconjunctival hemorrhage)
• Hypoxia (lack of oxygen to the baby)
• Cuts/scrapes from use of forceps and/or vacuum

What causes birth injuries?

Birth injuries may be caused by a number of factors, such as:

• Difficult and/or prolonged labor
• Premature birth
• Large-baby birth
• Breech position or other abnormal birthing position of the baby
• The size and shape of the mother's pelvis

Birth injuries often are associated with large babies because of the increased risk of a difficult labor. The physician may have to use extreme measures to deliver the baby, such as using forceps or a vacuum. Using either one of these devices can cause injury to the infant. If these measures do not work, then the physician may have to resort to an emergency cesarean section (C-section) to remove the baby, which poses an increased risk of injury to the mother and child.

Birth injuries and medical malpractice claims

Sometimes birth injuries are caused by the acts (or the failure to act) of the obstetrics team responsible for delivering the child. Like other medical malpractice claims, a successful birth injury case must show that the doctor or other health care provider acted negligently. To prove negligence, the plaintiff must be able to show that the health care provider failed to provide the accepted standard of care during the birth of the child and that this failure was the cause of the child's injury.

A number of circumstances may point to a physician's negligence as the cause of the birth injury. For example, during labor the physician must monitor the heart rate and oxygen levels of the mother and baby. If these levels go too low or too high, it may be an indication that the baby is in distress and that the physician needs to take immediate action. If the physician fails to take the appropriate steps to remedy the situation, the baby could suffer from oxygen deprivation (hypoxia), putting it at risk of developing cerebral palsy or suffering another type of serious brain injury.

Medical organizations like the American College of Obstetricians and Gynecologists (ACOG) have established specific standards for monitoring statistics during delivery. It is important that doctors, nurses and others on the obstetrics team follow these guidelines to protect the safety of the mother and child ? and not merely rely on their "gut" feelings. When medical standards are not followed and an injury to the child results, the physician and other health care providers may be liable for medical malpractice.

Birth injuries vs. birth defects

Birth injuries are different from birth defects, which happen during the pregnancy. Birth defects may be due to a genetic condition, such as Down syndrome. Birth defects also may be caused by external conditions to which the mother is exposed during pregnancy, like harmful toxins. In addition, birth defects can be caused by bacteria or other substances in food, like high concentrations of mercury in certain types of fish or listeria in lunchmeats. Some medications, such as the acne medication Accutane, that mothers have taken during pregnancy have been connected to birth defects.

Depending upon the factual circumstances, a medical malpractice case also may be appropriate in birth defect cases if the health care provider's negligent acts caused the defect.

Getting help with your claim

If you believe your child's birth injury is the result of the negligent acts of your physician, you may be able to bring a medical malpractice claim against him or her for your child's injuries.

Birth injuries can have devastating physical, mental, emotional and financial consequences for the child and parents. An experienced medical malpractice attorney can review your claim and help you determine if pursuing legal action is in the best interests of you and your child. There is a limited amount of time to file a medical malpractice claim for a birth injury in Massachusetts. For more information, speak with an attorney.