At Silberstein, Awad & Miklos, P.C., one of the most commonly asked questions we hear is, “Can you sue a hospital for traumatic birth?” The short answer is “yes,” but there are a few things you ought to know.
Experts define traumatic birth as a structural or functional impairment of a newborn due to trauma experienced during labor and delivery. The birth trauma rate in the U.S. is relatively low—about 1.9 newborns suffer trauma out of every 1,000 live births. Depending on your child’s injuries, your child might need physical, mental health, and occupational therapy, and you have the right to pursue injury compensation. In most cases, you will pursue a medical malpractice claim on your child’s behalf.
Traumatic birth includes trauma to both the mother and child during labor and delivery. The trauma can take many forms, including:
Medication administered to the mother can affect the child. These adverse drug events can cause the child’s heart rate or blood pressure to drop. The lack of oxygen to the brain can lead to anoxic injuries.
Anoxic injuries happen when the baby’s brain does not receive enough oxygen. Anoxic injuries can happen when the umbilical cord wraps around the baby’s neck during labor or birth. These injuries can also happen when the mother hemorrhages during delivery. Anoxic injuries can cause permanent brain damage. According to the Centers for Disease Control, some cases of cerebral palsy result from anoxic injuries before, during, and after birth.
Rough handling by doctors and nurses can physically injure the baby. Physical injuries can also result from the use or misuse of instruments. Physical injuries can include broken collarbones, broken arms, and forceps lacerations.
Nerves carry signals between the body and the brain, the brain to the muscles and organs, and the sense organs to the brain. Sadly, doctors cannot repair nerve damage. Symptoms may include:
Erb’s palsy is an example of nerve damage resulting from birth trauma. The brachial plexus is a nerve bundle in the shoulder. When a doctor pulls too hard on a baby’s arm during delivery, the nerves in the brachial plexus get stretched. As a result, the baby might have a weak or paralyzed arm.
Medical providers must treat you with reasonable care. Medical malpractice happens when a healthcare provider fails to provide the care that a reasonably prudent provider in the same situation would have provided. You can sue anyone who owes you the professional duty of care. This can include:
Importantly, you do not need to choose who to sue. Each entity involved in the birth may bear liability for its role in causing birth trauma.
To identify the grounds for suing a hospital, you must understand the hospital’s role and its relationship to the people responsible for the birth trauma. In a typical case, your claim against a hospital will allege that the hospital knew or should have known of the risk to you and your baby but failed to take reasonable steps to prevent it. Some possible grounds for suing a hospital for a traumatic birth include:
An employer is liable for the injuries caused by its employees. If employees commit negligence while carrying out their job duties, they usually do not bear personal liability for the injuries. Instead, the liability falls on the employer. This liability falls on the employer regardless of the employer’s knowledge of the employee’s actions. Instead, it happens automatically. The theory is that the employer benefits from the employee’s efforts when things go well. When things go poorly, those burdens also fall on the employer.
Separate from the employer’s vicarious liability, the employer might have committed negligence for which it bears its own liability. A hospital must screen job candidates before hiring them. And if the employer finds out about problems with employees, it must fire them. When a hospital hires someone it should not have hired, it may bear its own liability if something happens. Similarly, when a hospital fails to fire someone it should have fired, it bears liability for any resulting injuries.
When a hospital fails to train and supervise its employees, it might bear liability for any injuries its employees cause. But you must show that reasonable training and supervision could have prevented the birth injury.
Malpractice cases are rarely simple. They require a careful review of your medical records and other documents before filing a lawsuit. If you are a New York resident, the state’s statute of limitations imposes a deadline to initiate a medical malpractice claim. This deadline is normally 30 months after the alleged malpractice occurred. But, even 30 months is not much time when it comes to investigating and building a successful medical malpractice case.
If you believe your child suffered as a result of traumatic birth in New York, contact our team at Silberstein, Awad, and Miklos today for a free, no-obligation consultation with one of our medical malpractice attorneys.
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