When Your Child Sustains a Brain Injury at Birth
When a child sustains a brain injury at birth, it’s a tragic event that disrupts the child’s and new parents’ lives in ways none of them can predict. In the absence of a prenatal diagnosis that warns of potential complications, parents rarely anticipate bringing home a newborn who will have to cope with a lifetime of pain and profound disabilities. Unfortunately, that’s what happens when medical negligence causes a pediatric brain injury.
A brain injury at birth is a tragic blow for families expecting a healthy child. Families who know about their child’s potential deficits ahead of time can make plans for managing care issues and disabilities. In stark contrast, birth injuries allow no time for new parents to make emotional adjustments or practical preparations.
When a physician’s negligence derails your child’s future, your family will likely need supportive resources and help with protecting your legal rights. While you may not wish to think of your child’s injury in terms of financial compensation, you will also probably require financial assistance for a lifetime of medical bills, services, and unexpected costs. A Tampa Bay childbirth injury attorney can help protect your rights and helps you recover the compensation you need and deserve. These things might not seem important when coping with a disability is a new experience, but financial resources will help you handle your new life of medical and financial challenges. For more information, contact the experienced and compassionate childbirth injury attorneys at Dolman Law Group today at (727) 451-6900.
Why Do Brain Injuries Occur at Birth?
The simple answer to this question is human error. But, anyone who has suffered through an injury to an infant knows nothing about that tragedy seems “simple.” Although childbirth has overall become far safer for mother and child over the years, constant changes and updates in technology and birthing techniques do not always reap immediate benefits. In the short term, reliance on new devices and interventions may complicate more than they help.
For example, digital monitors reduce the need for human monitors, which can save money but also risk tragic errors when monitors fail or hospital staff experience information overload and fail to recognize a critical condition. Vacuum extractors used during difficult deliveries reduce reliance on necessary surgical interventions, which is a net benefit, but these devices can also harm an infant if used incorrectly. Anesthesia reduces a mother’s pain and natural discomfort, but drugs may have unintended and unexpected side effects on mother and child. In short, although technical and technological “progress” in obstetric medicine represents a positive and necessary evolution, it can also increase the opportunity for human error along the way.
Human error causes birth injuries, and to be clear, birth injuries are not the same as birth defects. Birth injuries don’t occur genetically or spontaneously. They happen before, during, or after childbirth because a medical professional committed a negligent act or didn’t provide a required standard of care. Unfortunately, medical negligence is often difficult to prove. Childbirth is exceedingly common (obviously), and most medical facilities use the same techniques and devices for every case, creating an appearance of standardized care that can mask human errors and omissions.
For example, hospitals have increasingly shunned 100 percent visual monitoring of fetus and pregnant mother, opting instead for reliance on digital readouts that can alert a medical team to fetal and maternal distress. Medical professionals use forceps and vacuum delivery devices when they deem them necessary. They administer strong anesthesia which diminishes pain to an extent that mothers have no measure for monitoring their own distress. When hospitals use these devices and techniques for every delivery, it can hide the inappropriateness of using them in specific cases. Life-altering tragedies and injuries to newborns have occurred when medical professionals:
- used vacuum extraction devices when surgery might have been a more reasonable option;
- relied on digital monitors instead of putting a set of eyes on their pregnant patients; and
- exercised poor judgment during labor and delivery.
Labor and delivery can be a long process. Medical professionals have multiple opportunities to identify and prevent adverse conditions from advancing. The following active and passive human failures can allow and promote brain injuries to children at birth:
- Inappropriate delivery procedures
- Failure to monitor anesthesia complications
- Inadequate fetal heartbeat and maternal monitoring
- Inappropriate forceps delivery
- Inappropriate vacuum-assisted delivery
- Delayed vaginal deliveries
- Poorly executed C-sections and other procedures
Types of Brain Injuries That Can Occur at Birth
When a doctor commits medical negligence during childbirth, the following types of devastating injury may occur.
Cerebral hypoxia can occur when a newborn doesn’t receive enough oxygen during birth. It’s also known as hypoxic encephalopathy or anoxic encephalopathy. The condition usually only affects the cerebral lobes but it causes significant damage. When the brain lacks oxygen, damage occurs rapidly. Brain tissues begin dying in as little as five minutes. Cerebral hypoxia can cause comas and vegetative states, diminished breathing capacity, no pupil response to light, and other serious conditions.
When a newborn lacks oxygen before, during, or after the birth process, it’s sometimes called birth asphyxia. This condition occurs when the mother has low blood oxygen because of heart or respiratory problems or from anesthesia. Other birth distresses such as problematic placenta functioning and umbilical cord compression cause this condition as well. Birth asphyxia can cause brain, heart, lung, and other disorders.
Jaundice and Kernicterus
Medical professionals can easily detect jaundice in newborns. A buildup of excess bilirubin in a child’s system causes the condition. Before birth, the mother’s liver keeps the problem in check. If a child’s liver isn’t well developed after birth, bilirubin becomes a problem and causes jaundice. If medical professionals don’t treat a newborn’s jaundice in time or treat it improperly, however, the condition sometimes transitions into other serious conditions.
As the Centers for Disease Control and Prevention explain, No baby should develop brain damage from untreated jaundice. When a physician pays attention to a newborn and follows standard protocol, detection and treatment are simple. Physicians traditionally test a newborn’s bilirubin levels after birth. Even if they don’t conduct the test, the trademark yellow skin and eye color render the condition highly noticeable. The jaundice skin color change isn’t always noticeable in children with darker skin tones. This known fact requires that medical personnel monitor darker-skinned children more closely.
Doctors can easily resolve jaundice with special light treatments and educate parents about jaundice as postnatal hospital stays are usually brief. Doctors often prescribe home light-bed treatments and home healthcare follow-up. If a jaundice condition goes untreated, however, it can cause a brain condition called kernicterus. This, in turn, causes dyskinetic or athetoid cerebral palsy, hearing loss, learning disabilities, and problems with teeth and vision.
Birth defects, brain infections, and other brain issues can cause cerebral palsy, but it also occurs because of oxygen shortages during childbirth and from kernicterus. The condition affects critical brain and nervous system functions. It limits a child’s movement, hearing, sight, thought processes, and learning abilities. Children usually manifest symptoms by age 2. They include weakness, pain, abnormal movements, tremors, and other problems. These manifestations affect one or both sides of a child’s body.
Cerebral palsy is incurable. Disabilities from the disease vary but the symptoms last throughout the child’s life. Treatment is expensive and may eventually include long-term care.
Medical Malpractice Lawsuits
If your child sustained a brain injury during the labor and delivery process, you may be entitled to take legal action for medical malpractice against the medical professionals whose errors or omissions caused the injury. An experienced childbirth injury attorney can help you protect your legal rights.
Florida law does not make it easy to sue a medical professional for malpractice. Before you file a lawsuit you and your lawyer must:
- Conduct a Pre-suit Investigation. (In other words, you can’t file a case and obtain evidence for your claims through discovery. You must develop the evidence on your own, first.)
- Determine that reasonable grounds exist showing a potential medical defendant was negligent in providing medical care.
- Issue a notification of intent to initiate medical negligence litigation.
- Include with your notice a verified written medical expert opinion that confirms your reasonable grounds.
This pre-litigation process can seem daunting—and in our experience, it can also force families and their lawyers to act quickly to preserve evidence and investigate the causes of a child’s tragic injury. Pre-litigation investigation and case-preparation is never easy. It often takes a skilled, compassionate, sophisticated attorney—like the ones at Dolman Law Group—to identify the practitioners and processes involved in an incident of medical malpractice.
Florida malpractice statutes also set out similar pre-litigation requirements for medical professionals named as defendants. A defendant or his/her insurer has their own pre-litigation process. A potential defendant’s investigative efforts must concentrate on disproving the plaintiff’s allegations.
These requirements bring a medical professional’s insurance company into the medical malpractice process. (Had the medical professional or hospital previously reported the incident as a claim, their insurance carrier could have been involved all along.) As with the plaintiff’s initial notification requirement, a defendant must also submit an expert’s opinion. Their medical brief must show that reasonable grounds do not exist for the plaintiff’s malpractice suit.
As with all Florida negligence cases, timing is critical. The statute of limitations for medical malpractice cases is two years instead of the four years customary in other negligence cases, although a statute of repose provides that the clock starts running on the statute of limitations from the moment plaintiff discovered or should have discovered the injury under reasonable circumstances. Even so, the medical malpractice statute of limitations is a maximum of four years after the childbirth injury occurred.
Florida’s Alternative Injury Compensation System
Florida law establishes and governs an alternative compensation scheme for families of brain-injured newborn, administered by the Florida Birth-Related Neurological Injury Compensation Association (NICA). NICA oversees a plan that constitutes a compensation alternative to allow families of brain-injured newborns forego litigation. The plan provides benefits for families anticipating their birth-injured child’s lifetime medical and disability expenses. Participants have a 5-year post-birth application deadline, making NICA is an important consideration for families who may have missed the statute of limitations for filing legal action.
NICA provides benefits for families and children with birth-related brain and spinal cord injuries. The Florida Legislature created the plan in 1988 because it considered obstetrics physicians valuable community assets, but also recognized the devastating toll childbirth brain injuries take on families. The statute also acknowledged that obstetricians and hospitals are at high risk for medical malpractice claims and high malpractice premiums. All Florida obstetricians and hospitals must participate in the plan. NICA aims to stabilize obstetrician and hospital medical malpractice premiums.
When a child sustains a neurological injury at birth, NICA may be available to pay benefits for a lifetime without regard to the physician’s fault. If accepted into the program, participants relinquish certain legal rights. They can’t file a malpractice suit except for cases involving …bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property. Families may also file a lawsuit if the plan doesn’t approve them for compensation.
An administrative law judge administers the NICA plan. Families pay a $15 application fee and must prove their claim with available medical documentation. Families of children accepted into the NICA may also qualify for a one-time cash award of up to $100,000, a death benefit of up to $10,000, attorneys fees and reasonable claim-filing expenses. If a family files a lawsuit under one of the acceptable conditions, they no longer qualify for cash awards under the plan.
NICA pays lifetime benefits for these and other covered expenses:
- Hospital costs
- Therapy and training
- Residential or custodial care
- Equipment and facilities
- Transportation expenses
NICA is a valuable system for families with brain injuries from malpractice at birth. As plan participation requires that families relinquish certain legal rights, families are well-advised to consult with an experienced Florida birth injury attorney before applying to the plan and committing to its requirements.
If your child sustained a brain injury at birth, the complications will likely change your life. You may need financial support if you hope to provide the quality care your child deserves.
Protect your and your newborn’s legal rights by seeking the advice of a skilled, compassionate childbirth injury attorney. At Dolman Law Group, we’ve recovered millions in settlements and judgments for clients suffering through the tragedy of an unexpected childbirth injury. Call us at (727) 451-6900 or complete our online contact form to schedule a free, confidential consultation with a member of our team.
Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765