At least 1 in every 50 newborn infants will suffer a birth injury, sustaining physical harm before, during or after delivery. While some of these injuries are truly unavoidable, hundreds of babies sustain serious harm due to medical negligence - when healthcare professionals fail to observe the well-established standards of practice.
Every child deserves excellent care, especially during the first moments of life. In New York, medical professionals have an ethical and legal obligation to uphold the established standards of their profession.
After all, there are right and wrong ways to handle pregnancy and birth. When a certain risk factor is identified, there are appropriate ways to mitigate the potential consequences of that risk. When a child suffers brain damage, there are effective ways of limiting the extent of that damage. During long, difficult deliveries, there are appropriate and inappropriate ways to use birth-assistive devices.
Attorneys call the right way to make a diagnosis, or conduct a procedure, the legal standard of care. These standards are well-established in the medical community, and every healthcare professional is bound, both legally and ethically, to follow them.
As medical professionals, obstetricians, nurses and midwives owe the infants and mothers in their care a simple duty - do everything in your power to prevent injury. While we all trust our doctors, some healthcare providers fall short.
Like every other professional, obstetricians can act negligently. In fact, obstetrician-gynecologists (OB-GYNs) stand among the most frequently sued medical specialists in America. The average obstetrician can expect to be sued over medical malpractice almost 3 times during their career. More than 75% of OB-GYNs will be sued at least once, according to a survey from the American College of Obstetricians and Gynecologists. The vast majority of these claims will be related to birth injuries, not gynecological procedures.
As these statistics indicate, the lion's share of birth injury lawsuits are likely filed against obstetricians. That doesn't mean other members of the birth team are allowed to avoid accountability for their negligence. Every medical professional is bound by a standard of care, and lawsuits can also be filed against nurses, midwives, anesthesiologists and pediatricians.
Medical negligence takes many forms. Some physicians are truly incompetent, committing thoughtless mistakes that lead to serious harm. In the delivery room, communication can break down, leaving necessary medical interventions unattempted. Diagnostic tests can be performed incorrectly, allowing significant risk factors to go unidentified.
Other examples of birth negligence include:
Did medical negligence lead to your child's injuries? There's no way for us to answer that question without conducting a thorough review of your family's unique situation. Every birth injury, however, is cause for concern. We urge you to contact our experienced New York birth injury malpractice attorneys today for a free consultation.
Some birth injuries are not caused by medical malpractice. In fact, even some medical errors won't rise to the level of negligence in a court of law. Medical negligence, the concept on which most malpractice lawsuits hinge, has a specific definition:
an act or omission (a failure to act) by a medical professional that violates the accepted standard of care
Practicing medicine is difficult. Pregnancy and childbirth are complex physical processes, and some birth injuries are truly unavoidable. Children can suffer tragic injuries without it being anyone's fault. In some cases, even the most skilled physicians, following the appropriate standard of care, are unable to prevent harm. But that's not always true. Physicians and nurses make careless errors every day. The effects can last a life-time.
To secure compensation in a lawsuit for medical negligence, families will have to prove five interconnected facts:
the defendant - an obstetrician, nurse, midwife or hospital facility - had a duty to care for the safety and well-being of a child during pregnancy, labor or delivery.
relying on the testimony of independent medical experts, parents will have to define the standard of care that should have been followed during the pregnancy, labor or delivery. What would a reasonable doctor, under similar circumstances, have done?
next, families must demonstrate that their own medical professional's actions or failures to act violated the standard of care in some way. Again, expert medical testimony will be crucial in identifying instances of negligence.
families will then have to prove that the healthcare professional's deviation from the standard of care served as a "proximate cause" of their child's injuries. To understand the concept of proximate cause, attorneys often use the "but for" test: but for the doctor's violation, a child's injuries would not have occurred.
finally, parents must show that the doctor's medical negligence had a detrimental effect on their child's health, resulting in financially-compensable damages.
Birth injury lawsuits are often extremely complex, requiring a command not only of legal concepts, but medical issues as well. A team approach is almost always necessary. Malpractice attorneys work closely with experienced medical professionals to define standards of care and identify specific violations of those standards. We also rely on the expertise of life care planners, who help us understand how a child's injuries will affect their development and long-term care needs.
Life care planners are crucial in the task of specifying damages. We want to pursue full compensation, money that can cover both past and future medical expenses, along with occupational therapies and assistive technologies - anything that can help a child live up to their full potential.
Birth injuries can also take a toll on parents. Beyond emotional trauma, many mothers and fathers are required to take time off work in order to care for their child. These losses can also be claimed in a birth injury lawsuit.
New York has a "statute of limitations," which acts as a legal time limit for filing birth injury lawsuits. File after the statute of limitations has run out and you will have almost certainly lost the right to file suit at all.
Medical malpractice lawsuits involving adult victims are normally governed by a 2.5 year (or 30 month) statute of limitations, which begins running on the date of actual malpractice. Cases involving child victims, however, are treated differently.
For birth injury lawsuits, New York's statute of limitations doesn't start running until the victim, who was a minor at the time of malpractice, has turned 18. The statute only begins to run on the victim's 18th birthday. From that day, the child and his legal guardians have an additional 2.5 years to file suit.
At Banville Law, our experienced birth injury attorneys understand that pursuing a lawsuit can seem like a daunting prospect. Caring for a child with special needs is difficult. Money and time are often hard to come by, especially when your resources are devoted to supporting a child who has been hurt.
We don't want financial concerns to prevent any family from pursuing justice. That's why our attorneys only offer their services on a contingency-fee basis. In short, you pay us nothing unless we secure compensation in your case.
Learning more about your legal options also comes at no risk. Contact our birth injury team today for a free consultation. You can find more valuable information at no cost and no obligation.