Fault In Birth Injury Cases

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Although a baby's birth injury can occur naturally, i.e. not as a result of the action or inaction of another person, there are other injuries that are as a result of the mistakes or negligence of others. If this is the case, the individual is entitled to compensation after filing a medical malpractice lawsuit.

Fault During Pregnancy

In these types of cases, a doctor or obstetrician may fail to assess or respond to conditions or disorders experienced during the pregnancy or a doctor or pharmacist could prescribe a pregnant woman drugs that cause the birth injury. In this case, you may be able to claim compensation from the medical professional who prescribed the medication to you, as well as from the manufacturer of the drug.

Fault During Birth

This is the most common situation in which a birth injury can occur. This may involve negligence in the form of misjudging the severity of a condition, or the size of a baby, failing to recognize when the fetus is in distress, or delaying a c-section delivery, amongst other things.

Fault with Neonatal Injuries

The hours and days after a baby is born are crucially important to an infant's survival. A newborn child has a weak immune system and requires special care, especially if injuries or illness has been identified; on other occasions medical staff fail to recognize the illness or problem either early on or at all. This type of failure by medical personnel can worsen an existing injury or in the most severe cases contribute to or even cause the death of the child.

How is Fault Established?

This will undoubtedly depend on in-depth analysis of the type of injury and being able to demonstrate how it was caused. It will be necessary to prove that the medical professional has provided a standard of care that falls far below that which you would expect of a reasonable professional in the same circumstances.

In order to prove this, your attorney is very likely to consult one or more medical experts who will explain the difference between the standard you received and the level of care that would ordinary be expected of a diligent and competent professional in the same circumstances. The defendant will also have their own expert who will seek to disprove your claim.

What can be claimed?

The damages that can be claimed in a birth injury lawsuit are wide-ranging and include:

  • Economic damages, which are for costs related to the injury such as nursing and other medical and rehabilitative care, as well as for any special educational needs;
  • Non-economic damages which are generally awarded for pain and suffering (both physical and mental), and loss of enjoyment of life.
  • Punitive damages are intended to ‘punish' the defendant and are difficult to obtain because proof is required that the medical professional(s) involved were acting with malicious intent or recklessness.

The laws relating to birth injuries vary widely from state to state and there are strict timescales within which you need initiate your claim. Some states also limit the amount of non-economic damages that can be awarded in birth injury claims; for example, the limit in California is $250,000. If you suspect that your baby was injured during birth seek medical attention first, and take advice from a specialist medical malpractice attorney as soon as possible.

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