Childbirth is often a time filled with excitement, anticipation and anxiety. Parents are eager to meet their child but understandably concerned about labor and delivery. One of the concerns is that the baby will be born with a brain injury. Occasionally, a brain injury is an unavoidable, yet tragic, consequence of childbirth. However, many times a childbirth brain injury could have been avoided and the injury occurs because a doctor, nurse or hospital committed medical malpractice.
While parents mourn the life that their child could have had but for the medical negligence that caused the brain injury they must also prepare for the reality of their child’s future. Their child’s lifetime care and expenses may be greater than the family can afford and the family may want to hold the people who caused the injuries responsible so that other children are not hurt in the future.
In most jurisdictions, the parent of a child who suffers a brain injury during childbirth has standing to sue on the child’s behalf. Every jurisdiction has a statute of limitations and the lawsuit must be filed in court before the expiration of the statute of limitations. Therefore, it is important to seek the counsel of an experienced medical malpractice attorney as soon as possible after you learn of your child’s injuries.
In order to recover damages in a medical malpractice lawsuit, a plaintiff must be able to prove that:
- The defendant had a duty of care to the child. A doctor, nurse, midwife, hospital or birthing center has a duty of care to your child when you use their services for childbirth;
- The defendant breached the duty of care to the child. A defendant breaches its duty of care to the child if the defendant fails to act like a reasonable person would have acted given the circumstances. For example, if a reasonable obstetrician would have performed a Cesarean section and your doctor did not do so and lacked a medical reason for not doing so then the obstetrician may have breached his duty of care to your child;
- The defendant’s breach of the duty of care caused the child’s injuries: Your child’s injuries must have happened because of the defendant’s actions (or inactions). In other words your child would not have suffered the brain injury but for the defendant’s actions; and
- The plaintiff is entitled to damages pursuant to state law: If you are successful in proving the above three elements of medical malpractice then you are likely entitled to damages pursuant to state law.
Possible damages in a childbirth brain injury medical malpractice lawsuit include compensation for past and future medical bills, pain and suffering, rehabilitation costs, projected living expenses for the child who is unlikely to be able to support himself in adulthood because of the injuries and lost income if a parent is unable to work due to the demands of caring for a child with a brain injury. In some cases, courts may also award punitive damages against the defendant.
Childbirth brain injuries forever change the life of a family. While damages cannot undo the harm that was caused nor give the child the opportunities that the child may have had if he or she had not been injured, financial damages can give a family the resources to provide the necessary care for the child and hold the defendant accountable for medical malpractice.