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BIRTH INJURY AND MEDICAL MALPRACTICE

Many parents of children born with disabilities often feel overwhelmed when first learning of their child's condition. During this time, parents are faced with myriad emotions and many difficult decisions. Given the emotional upheaval experienced during this time, it is hard to think beyond what is clearly the most important issue for your family: your child's health and getting the services needed to minimize or prevent further impairment and to accomplish full realization of potential.

There is, however, another issue that some parents of children born with disabilities need to explore. That issue is determining whether their child's disability was caused by errors by their physicians or other health care providers.

While not a factor in most situations, medical malpractice happens far too frequently in our country and is responsible for countless birth injuries nationwide each year, resulting in conditions ranging from erb's palsy to cerebral palsy and mental retardation. The impact of such conditions are often far reaching and affect not only the injured child, but the whole family, often creating a situation where the overwhelming needs of the injured child must be balanced against the needs of the entire family.

How do you know if your child's condition was caused by medical malpractice? How can you find out if it was? And, most importantly, what steps do you need to take to seek justice if substandard medical care during the birth process did indeed cause your child's disability?

WHAT EXACTLY IS MEDICAL MALPRACTICE?

Medical malpractice is, in reality, more than just bad medicine. In some cases, medical malpractice may occur when a physician or health care worker fails to perceive a risk, thereby not making a timely diagnosis. In other cases, medical malpractice occurs when physicians or health care workers fail to properly act upon a risk that a reasonable person in his/her position would act upon by initiating treatment. Medical malpractice also occurs when physicians and health care workers, in effect, make mistakes in diagnosis or treatment that cause subsequent harm to a woman and/or her unborn child. In all cases of medical malpractice, whatever the cause, the common thread is that the medical care received is below the accepted standard of care -- resulting in significant avoidable injury and unnecessary suffering.

Not every case of delayed diagnosis or improper treatment constitutes medical malpractice, which is defined as negligence or error that causes harm. Simply stated, a person considering initiating a medical malpractice case must ultimately prove that if their physician or health care professional had acted properly, the outcome would have been different.

HOW DO I KNOW IF THERE WAS MALPRACTICE?

Given our culture, we are often loath to consider whether a medical professional caused us harm. The sad reality is that although medical malpractice occurs everyday, only a limited number of those affected by that malpractice ever do anything about it. There are a number of reasons why people may fail to act, including feelings of guilt associated with getting a doctor in trouble or feelings of friendship developed with a physician. Still others are too nervous or frightened to become involved in the civil justice system.

Whatever the reasons, two things remain clear: 1) acts of malpractice unfortunately do occur both before, during and after birth and cause neurological injuries resulting in a variety of disabilities including cerebral palsy; and, 2) it is okay to do something about it. In fact, bringing birth-related malpractice issues to light provides a benefit for other families -- only when a negligent doctor is held accountable can others be warned of the actions of such negligent doctors and the proper standards of care which should be applied to all patients.

How do you know if medical malpractice occurred during your pregnancy and/or delivery and resulted in your child's birth injury? The following are some examples of areas where physicians can make diagnosis/treatment errors -- and which may indicate medical malpractice:

* Failing to properly monitor a woman's condition during pregnancy;

* Failing to perform and/or order specialized tests during pregnancy;

* Reading or analyzing test results incorrectly;

* Failing to refer a woman with high-risk pregnancy symptoms to an obstetrician specializing in high-risk pregnancies;

* Failing to diagnose and/or treat premature rupture of the membranes (bag of
waters);

* Improper use of the labor-inducing drug Pitocin;

* Failing to note and respond to changes in the fetus' condition during labor or
delivery;

* Allowing too much time to elapse between the rupture of membranes and delivery;

* Failing to diagnose and/or treat infection;

* Failing to take appropriate steps to prevent or delay premature delivery;

* Failing to perform a c-section when fetal distress occurs;

* Improper/excessive use of vacuum extraction or forceps during delivery;
* Failing to prevent and/or respond to umbilical cord entrapment

* Failing to timely diagnose and/or treat placenta previa or placental abruption;

* Failing to stop premature labor with labor-arresting drugs;

* Performing a traumatic delivery;

* Failing to act upon signs of oxygen deprivation in the fetus;

* Failing to properly resuscitate a newborn.

If you experienced any of these situations or any similar situation either before, during or after the birth of your child, you may have been the victim of malpractice. No list of possibilities can cover every scenario, thus the most important consideration is whether you suspect your care may not have been handled appropriately. A qualified, experienced malpractice attorney can help you make that determination, and advise you on a course of action.

BUT HOW DO I KNOW IF MY CHILD'S CONDITION
WAS THE RESULT OF MEDICAL MALPRACTICE?

There are a number of factors surrounding the birth of your child that may indicate that birth injuries -- and medical malpractice -- occurred. Birth injuries can be caused by oxygen deprivation, infection or direct trauma to the infant during the birth process.

There are, of course, certain things one should be aware of in deciding whether or not to suspect malpractice. If your child was floppy at birth with a bluish skin tone, or if he/she had trouble breathing and needed resuscitation upon birth, there is a possibility that medical errors contributed to a birth injury. Other signs that a birth injury may have occurred include an infant having trouble sucking after birth and the onset of tremors or seizures soon after birth. In addition, if your child was born with meconium in the amniotic fluid of his/her body at the time of delivery, there may have been medical errors that impacted upon the health of your baby.

Some of the conditions that result from injuries sustained before, during or right after birth include:

Cerebral Palsy Mental Retardation Erb's Palsy Cognitive Impairment Motor Impairment Developmental Delay