Legal options available to parents of children with a birth injury
While childbirth is supposed to be joyous, for some families, that joy is marred by a birth injury. Some of these injuries can be minor. However, in some cases, injuries sustained by a child before, during, or shortly after birth can result in a permanent disability or other serious medical issues. Unfortunately, many of these injuries are due to the negligence of a hospital, doctor, nurse, or another medical professional.
This is why it's important for parents dealing with a birth injury in Ohio to understand how and why such injuries occur. It's also critical for parents to talk to an attorney about their legal rights and potential legal options. That way, they can get the financial support and assistance their family needs for their child and hold the negligent parties accountable.
What is a birth injury?
An estimated 7 out of 1,000 babies are born with a birth injury, according to data compiled by the Centers for Disease Control and Prevention (CDC). Ohio's infant mortality rate (the rate of death during the first year of life) is also 7 out of 1,000 live births, which is 24 percent higher than the national average.
A birth injury describes a wide range of injuries and medical conditions sustained by a child. One way to categorize birth injuries is based on when the child sustained the injury:
- Prenatal birth injuries – Injuries sustained by a fetus during pregnancy.
- Neonatal birth injuries – Injuries sustained by a newborn during delivery or soon after birth.
What are common birth injuries?
While children can be born with a wide range of injuries, certain birth injuries are more common than others. Some of the most common and most serious birth injuries include:
- Brain Injury – Injuries to the brain sustained before or during birth often occur due to a lack of oxygen in the infant's brain. Hypoxic-Ischemic Encephalopathy is a type of brain damage caused a lack of oxygen (hypoxia) during childbirth. An estimated 2 out of 1,000 children are born with Hypoxic-Ischemic Encephalopathy. Brain injuries can also result from birth trauma if the baby’s head is injured during delivery, for instance by misuse of forceps.
- Shoulder Injury – Bone fractures, nerve damage, and other types of shoulder injuries may occur during pregnancy or delivery. One of the most common shoulder injuries sustained by newborn infants is a brachial plexus injury, which involves nerve damage to the shoulder area, often during delivery. An estimated 2 out of 1,000 children are born with a brachial plexus injury. Erb’s palsy is a type of brachial plexus injury that involves nerve damage in the shoulder and spine near the C5 and C6 nerves.
- Spinal Cord Injury – Many newborn children sustain injuries to the spine, often during delivery. Depending on the severity of the damage and where the injury occurred, ghd victim might not be able to move parts of their body below the location of the injury (paralysis). Paralysis may be partial or complete depending on the severity of the injury.
- Cerebral Palsy – A type of muscle disorder that affects a child's ability to move, as well as their muscle tone and/or posture. An estimated 3 out of 1,000 children are born with cerebral palsy (CP). There are several different types of cerebral palsy. The most common type of CP is spastic cerebral palsy, which affects a child's movements due to stiff muscles. Approximately 70 to 80 percent of children with cerebral palsy have spastic cerebral palsy. Other types of CP include dyskinetic cerebral palsy and ataxic cerebral palsy.
- Bell's Palsy – A medical term for facial paralysis in which the victim cannot move certain facial muscles. A child with Bell's Palsy often experiences facial paralysis on one side of their face. Bell's Palsy sometimes only lasts 48 hours. However, other children might experience permanent facial paralysis depending on the severity of the underlying injury.
Why do birth injuries happen?
Birth injuries can occur due to medical malpractice by hospitals, doctors, surgeons, pediatricians, and other medical professionals. Medical malpractice is a legal term for mistakes that should not have occurred if medical professionals had followed standard medical procedures. Examples of medical malpractice that can cause a birth injury include:
- Misdiagnosis of a medical condition during pregnancy.
- Delay in diagnosis of a severe or life-threatening medical condition.
- Mistakes that medical professionals make during delivery. Examples include delaying delivery and misuse of forceps or extractors.
- Medical mistakes that are made shortly after the child's birth, such as failing to promptly intervene to mitigate the effects of brain damage.
Common birth injury warning signs
Medical professionals must carefully monitor the health of both the mother and fetus during pregnancy and delivery. This includes conducting regular checkups during pregnancy and considering any pre-existing medical conditions, such as high blood pressure or obesity.
Doctors should also carefully monitor the position of the fetus during pregnancy by taking regular ultrasound images. Abnormal fetal positioning is a common cause of many serious birth injuries during delivery.
Once a child is born, doctors and other medical professionals need to monitor the child's development closely. This starts with a child's APGAR score minutes after birth. APGAR refers to a child's appearance, pulse, grimace response, activity, and respiration.
Afterward, doctors should continue to look for any developmental delays, meaning the child does not reach certain standard milestones for children at a particular age. The CDC has many standard milestones for measuring a child's development until age 5.
Compensation for a birth injury
If your child sustained a birth injury due to the negligence of a medical professional or facility, you may be entitled to compensation for related costs and losses.
Any compensation you receive should include the cost of all medical care related to your child's injury. This includes all future anticipated medical care, including follow-up surgery and future doctor's appointments for severe medical conditions. Other expenses may include:
- Physical therapy.
- Daycare for children.
- Medical equipment, such as a wheelchair.
- Modifications to the home, such as installing a wheelchair ramp.
- In-home medical care or assistance, if a birth injury resulted in a permanent disability.
- Pain and suffering in certain circumstances.
How much is my birth injury case worth?
The financial impact of a birth injury can be substantial because many birth injuries result in a permanent disability expected to last a child's entire life.
However, there is no way to estimate the value of a birth injury case without first examining all the relevant details. As such, you should consult with an attorney to determine an accurate estimate of the potential compensation for your case.
Legal options available for families in Ohio
Most birth injury cases are resolved by a negotiated settlement with the defendant doctor or hospital. Others require filing a birth injury lawsuit against the at-fault party. Ultimately, only an attorney can advise you of whether it’s in your interest to accept a settlement offer or file a lawsuit. It depends on the specifics of your situation.
Remember, once you agree to accept a settlement offer—that's it. Your legal case is closed, and you cannot ask for any additional money, even if expenses related to your child's birth injury increase more than anticipated in the future. As a result, you may be required to pay for such costs out of pocket. It’s in your interest to not accept a settlement without discussing it with your attorney first.
Who can parents in Ohio sue for a birth injury?
If a medical professional made a mistake that resulted in your child's birth injury, you can file a lawsuit against the at-fault party. At-fault parties may include:
- Obstetricians responsible for monitoring a woman's health during pregnancy.
- Lab technicians responsible for conducting standard tests during pregnancy.
- Anesthesiologists, doctors, surgeons, nurses, or other medical professionals involved in delivery.
- The hospital or medical facility where the child was born or received medical care before, during, or shortly after the birth.
What is the deadline for filing a birth injury lawsuit in Ohio?
The deadline (known as the statute of limitations) for taking legal action in response to a birth injury differs from many other injury-related cases in Ohio. In general, the clock does not start until the child turns 18 years old, according to Ohio Revised Code (ORC) § 2305.16. Afterward, the statute of limitations for most medical malpractice cases is one year. So, practically speaking, you usually have until the child’s 19th birthday to file a birth injury lawsuit.
However, different deadlines can apply in different circumstances, and only an attorney can tell you which deadline applies in your individual case. Moreover, while the law may allow you to wait a long time to file a lawsuit, as a practical matter, it’s best to take legal action as soon as possible before evidence is lost and witnesses’ memories fade.
Is there a cap on damages for birth injury cases in Ohio?
There is no limit on economic damages in a birth injury case in Ohio. Economic damages are monetary losses that can be tied to a specific dollar figure, such as medical expenses and lost future earning capacity.
However, Ohio law does limit the amount of non-economic damages (such as pain and suffering or mental anguish) that can be sought in birth injury cases. The non-economic damages are generally capped at either three times the economic damages, or $250,000, whichever is greater, with an overall maximum of $350,000. This cap can be increased to $500,000 for certain permanent or catastrophic injuries. Again, only an attorney can tell you which caps apply in your situation.
How can an Ohio birth injury lawyer help?
Birth injury claims and lawsuits are complicated legal cases. This is because there's a lot at stake, and the at-fault party often denies responsibility. Unfortunately, rather than accepting responsibility, medical professionals and institutions often take legal action to defend their actions.
An experienced Ohio birth injury lawyer can help level the playing field. They can gather evidence in support of your injury claim or lawsuit. They can consult with medical experts to gather evidence of wrongdoing.
Once they gather the facts, experienced attorneys know how to skillfully negotiate with malpractice insurance companies and anyone else responsible for financially compensating you. And if they don't cooperate, your lawyer can file a birth injury lawsuit on your behalf in the appropriate Ohio jurisdiction.
If your child sustained a birth injury in Ohio, it’s in your interest to get legal advice as soon as possible. Contact a birth injury attorney in your area today.
