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Frequently Asked Questions About Birth Injuries

If a baby suffers a serious injury at birth, it is one of the most heartbreaking things a parent can go through. A birth injury may mean the child will never be the person he or she could have been. He or she may face a painful struggle growing up and, in many cases, limited opportunities as an adult.

Birth injuries also mean significant ongoing expenses for medical care, special education and other costs and losses.

Kraft & Associates, P.C., pursues medical malpractice cases on behalf of families throughout North Texas whose lives have been upended by birth injuries caused by an avoidable medical error.

Below are some frequently asked questions lawyers with our firm often answer for prospective clients. For answers to your individual questions, please contact us for a free legal consultation. Phone us at (214) 999-9999, complete our online form, or email kraftlaw@kraftlaw.com.

Is there a difference between a birth injury and a birth defect?

There is a specific difference in what should be called a birth defect and what should be considered a birth injury. When medical malpractice lawyers discuss birth injuries, we mean harm to a child during birth that is caused by preventable medical error.

The Centers for Disease Control and Prevention says birth defects are serious conditions that involve changes to the structure of one or more parts of the body. Most birth defects are thought to be caused by a mix of factors, such as the parents’ genes and behaviors (such as smoking, drug or alcohol use during pregnancy), and things in the environment.

Some common birth defects include:

  • Cleft lip or cleft palate.
  • Congenital heart defects.
  • Down syndrome.
  • Spina bifida.
  • Upper and lower limb reduction defects.

Birth injuries are caused by external trauma to a baby before, during or soon after birth. The Medscape website refers to “mechanical forces (i.e., compression, traction)” during the birth process as meeting the definition of birth trauma. Forces that result in a lack of oxygen to the baby’s brain (asphyxiation) also cause traumatic birth injuries.

Some common birth injuries include:

If a birth injury has been caused by negligence on the part of the obstetrician, obstetric nurse or other medical personnel, the parents and child may be eligible for compensation for medical expenses and other losses.

How do birth injuries occur?

The primary causes of birth injuries are rough handling of the infant during delivery and a lack of oxygen to the child’s brain before the baby can breathe on his or her own. In most cases, these types of traumatic birth injuries are preventable.

In some cases, a child assumes an unnatural position in the birth canal, such as in a breech birth. This requires the doctor (obstetrician) to either try to reposition the child, deliver the child despite the awkward position, which often includes the use of use forceps or vacuum devices, or opt to deliver the child by Caesarian section (C-section), which is a common surgical procedure.

Too much pressure or twisting of the child’s body can cause traumatic injury, such as a brachial plexus injury, nerve damage (particularly in the face, head or neck), broken bones, internal bleeding, bruising or lacerations.

If the baby is deprived of oxygen, this can quickly cause brain damage, including cerebral palsy or mental retardation. Compression or traction during delivery can crush the umbilical cord, which supplies oxygen to the baby prior to birth. The umbilical cord may also become wrapped around the baby’s neck and strangle the child.

Obstetric doctors and nurses are expected to monitor a baby’s and mother’s vital signs and recognize when the child is in distress. Doctors are also expected to understand how to deal with complications during delivery without injuring the child. Many birth injuries occur because a doctor is slow to make a decision or to act, and the baby remains in the birth canal for too long.

A medical malpractice lawyer experienced in birth injury cases, like ours at Kraft & Associates, can help parents of a child who may have been injured because of medical negligence and error. The parents and child may be able to obtain compensation for the child’s injuries and ongoing needs.

Who could be held accountable for my child’s birth injury in a medical malpractice lawsuit?

Anyone who was involved in the medical care of the expectant mother and child during delivery, birth or shortly afterward (neonatal care) may be held responsible for a birth injury if they were negligent. In some cases the medical institution (hospital, birthing center, medical practice etc.) may be held accountable.

Medical professionals have a duty to provide care that meets accepted standards. If a deviation from the accepted standard ­– acting or not acting as a reasonable professional would under similar circumstances – causes harm, the attending obstetrician, obstetric nurses, technicians and other medical personnel may be legally liable for their negligence.

If the policies, procedures, equipment, etc., of the hospital or medical center where your child was born contributed to an error that harmed your child, the institution may be held liable as well. Medical institutions may also be held responsible for the actions of their employees or associates.

In a medical malpractice lawsuit over a birth injury that was caused by an avoidable medical error, a child’s parents could seek compensation on behalf of the child, as well as for their expenses and mental anguish.

A medical malpractice lawyer’s investigation of your child’s birth injury would identify how your child was injured and who should be held accountable. At Kraft & Associates, we believe any significant harm a child suffers during birth or neonatal care calls for an independent investigation and legal accountability for anyone discovered to have been negligent or reckless in the child’s birth.

What kind of compensation could I be able to obtain with a birth injury medical malpractice claim?

A medical malpractice claim in a birth injury case seeks two types of compensation: economic damages for quantifiable expenses caused by the injury, and noneconomic damages for qualitative (quality of life) losses. Because a birth injury may cause lifelong expenses and losses, they must be fully calculated as a malpractice claim is developed.

Economic damages are sought in a malpractice claim to repay the claimant for direct monetary losses, such as for medical expenses and lost wages. Especially in a birth injury case, a lawsuit’s economic damages must include projections for future expenses.

A child who has a significant birth injury, such as severe cerebral palsy or brachial plexus injury, will require physical therapy, medical treatment and assistive devices throughout childhood and into adulthood. They may require special education beyond what public schools can offer. As an adult, their occupational opportunities may be limited, resulting in future lost wages that should be accounted for in a claim.

In cases of full disability, development of a legal claim should include working with expert consultants to prepare a life-care plan for the child. A life-care plan is a detailed projection of a disabled person’s needs and their costs.

Noneconomic damages include compensation for physical pain and suffering, mental or emotional pain or anguish, disfigurement, physical impairment, inconvenience, loss of enjoyment of life and any other nonmonetary losses. Again, the parents of a severely injured child would seek substantial noneconomic damages, as would the injured child in his or her lawsuit.

Economic damages are a reimbursement for costs and are not limited (capped) in Texas. However, Texas caps noneconomic damages in medical malpractice cases, as follows:

  • Up to $250,000 from a single healthcare provider or each single provider in a claim.
  • Up to $250,000 per defendant that is a hospital, medical center, clinic, etc., for a maximum of $500,000 per claimant.

Texas lawsuit caps in wrongful death claims also limit compensation to a maximum of $500,000 in economic and noneconomic damages based on 1977 dollars. Adjusted for inflation, the cap on damages in wrongful death claims exceeds $1.5 million.

Our child was recently diagnosed with cerebral palsy. We think it is due to complications during birth. Is it too late to consider a birth injury claim?

Cerebral palsy is usually diagnosed after a child misses milestones for physical development. It is probably not too late to pursue a birth injury lawsuit, but Texas does impose strict deadlines for filing medical malpractice claims. It is always best to begin the work required to develop a malpractice claim as soon as possible.

The motor development delays found in a child with cerebral palsy are likely to be initially diagnosed at 18 to 30 months of age, the Centers for Disease Control and Prevention says.

Texas medical malpractice law imposes a statute of limitations that requires claims to be filed within two years of the injury in most cases, but the law is different for children. If a child who has been injured by a medical error is 12 years old or younger, the child’s parents or representative have until the child turns 14 to file a malpractice lawsuit.

It is also important to understand that in addition to a statute of limitations, Texas law includes a statute of repose, which requires a plaintiff to file a medical malpractice claim within 10 years after the act that may have injured him or her, regardless of when the injury came to light. In other words, it may be too late to pursue a birth injury claim for a 12-year-old.

We urge anyone who may have a birth injury claim to obtain legal assistance as soon as possible because it can take a considerable amount of time to develop a malpractice lawsuit.

A malpractice investigation may require obtaining extensive medical records and having multiple medical consultants review them and provide analytical reports of their findings. This may be followed by contacting and interviewing medical professionals and others involved in the case. This work can easily be delayed, particularly if records are old or those who could be responsible are not cooperative.

If you think you may have reason to pursue a birth injury claim in Texas, please contact Kraft & Associates today for a free legal consultation about your case.

We don’t know how we could pay for a lawyer to handle a birth injury claim. How much does it cost?

You don’t pay anything upfront for the legal services of a birth injury lawyer. When we pursue birth injury lawsuits, we do so under agreement that we will retain a specific percentage of any compensation we obtain for you. This contingency-fee arrangement makes a lawsuit a joint undertaking – we don’t get paid unless you do.

If we can pursue a birth injury claim for you and you agree to move forward, we will enter into a retainer agreement. This is a contract that spells out our duties to you as well as our legal fees and certain expenses you will be required to pay to develop and process the suit.

We will not seek any payment until we obtain a settlement or court award for you. Then, our fees and expenses will come out of the check received from the defendants. No money comes out of your pocket.

All of our work begins with a free legal consultation about your case. From there, if we see a potential claim, will work with you to obtain medical records and have them reviewed by our medical consultants. If we can pursue a lawsuit on your behalf, we will do so aggressively.

If you believe your child has suffered a birth injury that was caused by a preventable medical error, please contact Kraft & Associates in Dallas at (214) 999-9999 or online today to set up a free, no-obligation legal consultation.

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