The birth of a child is often the most joyous time in a parent's life, and thankfully most child deliveries go relatively smoothly. But complications can arise during both pregnancy and delivery, potentially resulting in injury to the baby. In situations such as these where the harm was avoidable, it is important that the legal rights of both baby and parent are fully safeguarded.

The facts of cases involving birth injuries to a baby can differ greatly, but most situations involve one of two general scenarios: either the doctor's failure to assess or respond to conditions or injuries due to prenatal care (including prescription drugs).

In the first scenario, for example, a doctor may fail to recognize pregnancy disorders like hypertension; improper use of medical devices such as forceps or vacuum; failure to perform a necessary cesarean section; or improper assessment of a baby's overall health in the womb. A lawsuit arising from these types of situations will usually include a medical malpracticeclaim against the physicians and other medical practitioners involved, and in some cases a claim against the hospital where the treatment or delivery took place.

In the second scenario, for example, a pregnant woman may have taken a prescription drug under the guidance and supervision of a doctor or pharmacist. In such a situation where the drug causes injury, you may also have a claim against the drug manufacturer and the pharmacist who assisted you with your prescription.

Birth Injury Or Birth Defect?

It can be difficult at first to know if certain complications were caused by a birth injury or were the result of a birth defect. For example, a child born with cerebral palsy may not have been given enough oxygen during labor (making the condition an avoidable birth injury), or the situation may have been caused by an unpreventable birth defect. To help differentiate between the two, an examination of each will be helpful.

Birth Injuries

A birth injury to a baby occurs due to a complication in the labor or delivery process. It has been estimated that, for every 1000 babies born in the U.S., five will be injured during birth. A birth injury can happen because of an obstetrician's use of an improper medical technique during delivery, or through improper use of a medical device such as forceps or a vacuum. The resulting harm to the baby can vary from a lack of oxygen to severe head injuries.

Remember that not all birth injuries will give rise to a successful legal claim. Complications may occur during delivery that, despite an obstetrician's use of reasonable and competent skill, resulted in unavoidable birth injuries.

Birth Defects

While birth injuries are generally caused by something that went wrong during the delivery process itself, birth defects involve harm to a baby that arose prior to birth, usually caused by something that happened during or before the mother's pregnancy.

Estimates are that 7% of all babies are born with a birth defect or irregularity, from very minor to severe.

Birth defects can be caused by a number of factors, including heredity and environment (such as a mother's prescribed or illegal drug use). A chemical or agent that causes birth defects in a child is called a "teratogen." A number of drugs have been found to be teratogens, and many of these were initially meant to aid a woman's pregnancy. These teratogens include: Delalutin, a drug administered to pregnant women for the prevention of miscarriages; Bendectin, a medication given to pregnant women, to fight nausea; and Ortho-Gyno, a spermicide.

It is important to remember that the causes of many birth defects are unknown, and in other cases, a birth defect can be caused by the mother's own actions during pregnancy, such as alcohol or drug consumption. In these instances, your rights to a legal recovery for birth injury may be non-existent or extremely limited.

Proving Your Case

No matter what the particular facts of your case happen to be, in order to recover for a birth injury you will likely need to show that medical providers and/or a pharmaceutical company failed to give you or your baby adequate medical care or medication advice during pregnancy and/or delivery.

Generally, to find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard that will be applied, your attorney will most likely consult with and present the testimony of another medical expert, who is qualified in the same area of medicine as the defendant. This expert will indicate what standard or level of care is commonly met by those recognized in the profession as being competent and qualified to practice. Your attorney will present expert testimony not only as to the applicable standard of care but also testimony establishing that the defendant failed to meet this standard in your case.

In medical malpractice actions, causation is sometimes a challenge to establish. Specifically, your attorney must show that your health care provider's deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes, the health care provider's deviation from the standard of care may not have caused the plaintiff's eventual injury, and vice versa.

Following are some specific aspects of the two main types of birth injury lawsuits. See Responsible Parties in Birth Injury Cases: Who Can be Sued? for more information or learn more on our birth injury legal answers page.

Elements Of A Claim - Caregiver's Malpractice

If you bring a lawsuit against your obstetrician, other caregivers, and/or a medical facility for birth injuries to your child, it will be your attorney's responsibility to show that:

·         Defendant (which can include an obstetrician, physician, nurse, medical facility, the pharmaceutical company, medical device manufacturer) owed a legal duty of care to your baby (and to you, in some cases);

·         Defendant breached that legal duty or standard of care by acting or failing to act in a manner in which a reasonably competent individual would have, under the circumstances;

·         Defendant's breach of the legal duty or standard of care caused harm to your baby (and to you, in some instances).

In order to establish that birth injuries were caused by the defendant(s), your attorney will most likely use expert witnesses to comment on and interpret complex medical procedures and issues in your case, including what to expect during a normal pregnancy and delivery; what could have been expected during the pregnancy in your case; what actually occurred during the pregnancy in your case (including specific description of any complication during pregnancy or delivery); physical and medical evidence of harm to the baby; and opinion as to whether any harm resulted from complication during pregnancy or delivery.

See Birth Injuries: Cerebral Palsy and Erb's Palsy for examples of injuries resulting from caregiver malpractice.

Elements Of A Claim - Mother's Use Of Prescribed Drug

Your claim for a birth injury may be based not on complications during delivery, but on the mother's use of a prescribed drug or medication during pregnancy. These claims are typically brought against pharmaceutical companies, pharmacists, and treating physicians, and are usually based on a theory that the defendant(s) "failed to warn" the mother of the risk of taking the drug in question. If your lawsuit for birth injuries is based on the mother's use of a legally-prescribed drug during pregnancy, you will generally need to show:

·         The mother used the drug in question during pregnancy

·         The mother's use of the drug in question was prescribed by a physician, pharmacist, or other health care provider

·         The birth injury is not likely due to genetics, heredity, disease, or other factors (this is usually accomplished through expert opinion)

·         The drug in question is capable of causing birth defects

·         The drug in question actually caused the birth injury

Damages

If a child suffers harm due to an avoidable birth injury, damages awarded as part of a successful lawsuit will typically go to the child, sometimes in the form of a trust.

Recent legislation has limited the amount of certain kinds of damages that a plaintiff can recover in a medical malpractice case. However, a number of categories of damages are available, and many are not limited to a specific amount. These can include compensation for medical expenses, pain and suffering, and loss of future earning capacity.

Where a child is born with a birth defect, the parent may also bring a medical malpractice action against the obstetrician and/or the hospital at which the delivery occurred. The parent may be able to bring a lawsuit for his or her own emotional distress that arose from the baby's birth defect, above and beyond liability to the child.