The day that your child is born should be among the happiest days of your life. However, a birth injury can turn what should be a celebration into a day of worry and fear. And the complications that stem from those injuries can last for years, or even for a lifetime. If your baby was injured at birth, seeking appropriate and effective medical treatment should be your first priority. However, medical treatment costs money, and the person or institution responsible for your baby's injuries may be liable for the bill. Take a look at a few things that you need to know about suing for birth injuries.
The Difference Between Birth Injuries and Birth Defects
Many people don't understand the difference between birth injuries and birth defects. Essentially, a birth injury is something that happens to your child during the deliver process that caused an injury or a disorder. A birth defect is a disorder that your child is genetically predisposed to. In both cases, your child is "born with" the problem, but in the case of a birth injury, the problem could have been avoided, whereas a defect could not have been avoided.
It's possible that your doctor or the hospital staff will tell you that your child has a birth defect when they really have a birth injury. There are a couple of reasons why this may happen, including simple misdiagnosis – birth injuries and birth defects often share similar symptoms, and it may not be obvious that an injury occurred during the birth. It's unlikely that your medical providers will purposely mislead you, but it's entirely possible for them to be mistaken, so it's important to find out if a birth injury did in fact occur, both for legal purposes and for the purpose of making sure your child gets the correct treatment. Getting opinions from one or more specialists can help you determine the source of your child's disability.
Who is Responsible?
If a specialist determines that your child suffered a birth injury, the next question is who should be held responsible. While it might seem like a no-brainer to hold the delivering doctor responsible for the injury, it's not always that straightforward.
Hospital policies that were harmful to your child may have played a role in the injury, in which case, you may have a case against the hospital instead of, or in addition to, the delivering doctor. If the injury was caused by a piece of medical equipment that was defective, or a drug that was tainted or that had unexpected dangerous side effects, then you may have a case against the medical device manufacturer, the drug manufacturer, or the pharmacist that supplied the drug. Nurses and hospital staff can also be held liable for injuries if it was their mistake that caused harm to your child.
In some cases, you may even have a lawsuit against your HMO. This is called a vicarious liability claim, and it's applicable when the doctor is an employee of the HMO, rather than the independent contractor. Essentially, a vicarious liability claim alleges that the HMO is responsible for the injury because they hired the doctor that caused the injury. Your lawyer can help you determine who should be named as a defendant in your birth injury lawsuit.
Don't Compromise Your Lawsuit
If you think that you may have a birth injury claim, there are a few things that you can do to keep from jeopardizing any potential legal claim. First of all, document everything – your child's symptoms, the events of the birth as you remember them, and the memories of any witnesses who were on hand, such as the child's other parent. Keep a file with all of the bills and medical records from the hospital and any doctors that your child sees.
Next, use caution when speaking with any representatives of the hospital, and especially any representatives from the hospital's insurance company. Preventing lawsuits and legal judgements is part of their job, and anything you say to an insurance company representative or hospital lawyer may be used to invalidate your claims later on. If you're approached by one of these representatives, politely ask for time to speak to your own lawyer first.
Contact a lawyer who specializes in medical malpractice as soon as you have reason to suspect that your child was injured during birth. In most cases, these consultations are free, and the attorney will be able to assess your case and give you guidance for your next steps. Click here for more information about finding an attorney to help with your case.