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The birth of a child is an exciting time for a family. It is devastating when this excitement turns to tragedy due to a birth injury. Many birth injuries cause permanent neurological damage to the child, necessitating special medical care for the rest of their lives.
A birth injury is the last thing that should concern a parent when having a child. Unfortunately, every year there are thousands of birth injuries in hospitals throughout the United States. There are numerous injuries associated with childbirth. Some are relatively minor and heal quickly, while other injuries cause long-term neurological damage to varying degrees.
If your child was injured during birth, you need the services of an experienced attorney to pursue the often substantial compensation you and your family deserve. The birth injury lawyers at Colling Gilbert Wright & Carter have both the experience and the passion for protecting the rights of injured children. Call (407) 712-7300 today for a free evaluation of your claim.
Approximately 6 out of every 1,000 births involve some level of birth injury. Some injuries are discovered right away, while others may not present themselves for months or even years.
Some of the details you need to know about birth injury claims include:
- Types of Birth Injuries
- Causes of Birth Injuries
- Symptoms of Birth Injuries
- Obstetrical Malpractice
- Cerebral Palsy
- Erb's Palsy & Brachial Plexus Injuries
- Brain damage
- Failure to Notice Fetal Distress
- Birth-Related Neurological Injury Compensation
- NICA and Litigation Options
- How Our Birth Injury Lawyers Can Help
Types of Birth Injuries
Birth injury victims may require a lifetime of expensive medical care, which can be extremely taxing on the whole family. Birth injuries that occur during childbirth can have serious mental and physical consequences. Some of the most common birth injuries are:
- Cerebral palsy: This birth injury is caused by a lack of oxygen to the brain. Cerebral palsy causes many different problems including poor motor skills, breathing difficulties, seizures, poor sense perception and poor bowel or bladder control. Cerebral palsy is a permanent disability.
- Erb’s palsy: Erb’s palsy is a birth injury that is caused by damaging the brachial plexus nerve near the shoulder. The brachial plexus nerve controls arm movement and sensation. Serious forms of Erb’s palsy can be permanent, resulting in upper body paralysis, lack of arm movement, limpness and lack of muscle control.
- Hypoxia: Hypoxia is the medical term for a lack of oxygen reaching the brain. Leaving the head in the birth canal too long or improper use of vacuum devices can cause hypoxia. Like cerebral palsy, hypoxia can have permanent effects on the victim’s life. Hypoxia can cause serious medical problems including death, coma, seizures, breathing problems and brain damage.
- Kernicterus: Kernicterus is a type of brain damage that can affect newborn babies who have jaundice.
Causes of Birth Injury
The leading cause of birth injury is hypoxia or lack of oxygen to the brain. The extent of the damage is proportional to the length of time that the brain is starved for this vital element. In some cases, a mechanical problem with the delivery or obstetrical malpractice may contribute to nerve damage to the extremities.
Problems that result in neurological complications include:
- Improper use of extraction devices, forceps or vacuum
- Failure or delay in diagnosing and responding to fetal distress
- Failure to properly read fetal monitoring data
- The administration of too much Pitocin
- Failure to perform a C-section for birth complications
Surprisingly, many birth injuries occur in large hospitals with adequate staff and space.
Symptoms of Birth Injuries
Parents should watch for common symptoms of a potential birth injury including:
- Poor coordination
- Lack of depth perception
- Poor balance
- Delayed motor development
- Muscle spasms
A birth injury can result in a lifetime of prescription drugs, medical attention and special care.
Obstetrical malpractice occurs when your OB/GYN deviates from the standard of care expected from other physicians under the same or similar conditions. If your obstetrician didn’t follow these standards and your child was injured during labor and delivery, the medical provider may be liable for obstetrical malpractice.
Some of the injuries caused by obstetrical malpractice include:
- Brain injury. If your baby was stuck in the birth canal and the umbilical cord was compressed, your infant may have been injured by a lack of oxygen to the brain. If a cesarean section (C-section) was delayed, it could have resulted in brain damage to your child.
- Cerebral palsy. This injury often occurs during childbirth when your infant does not receive enough oxygen during delivery, resulting in a brain injury. The name "cerebral palsy" refers to loss of muscle control, but in addition to these physical limitations, your child may also suffer from mental retardation.
- Nerve trauma. Physicians must take great care to deliver the baby safely and avoid causing nerve damage that could result in Erb’s palsy. Erb’s palsy occurs when your baby experienced a very difficult or extremely long delivery and your infant’s brachial plexus region was injured. Medical malpractice could have happened if your doctor failed to maneuver your baby properly before continuing a vaginal delivery. Proper use of the 16 or so maneuvers to free your baby from being trapped can prevent the nerve injury that causes Erb’s palsy at birth.
- Shoulder dystocia. This occurs when a baby’s shoulder becomes trapped against the pelvic bone during birth. Obstetrical malpractice may have occurred if your physician didn’t execute the proper prenatal examinations and tests to recognize your child’s risk for shoulder dystocia. These risk factors consist of:
- A previous child with shoulder dystocia
- Gestational age of the fetus is over 41 weeks
- Gestational and/or maternal diabetes
- Prior delivery of a baby weighing over 4,000 grams
- Macrosomia (estimated fetal weight over 4,000 grams)
- Maternal obesity
- Second stage labor, which lasts over two (2) hours
- Your doctor could have taken certain measures to prevent birth injuries when your baby is at risk for shoulder dystocia. These include:
- Performing a C-section if you are non-diabetic and your baby had an EFW of over 4,500 grams.
- Performing a C-section on you if you are diabetic and your baby had an EFW of over 4,000 grams.
- Following a structured plan for management of shoulder dystocia if it occurs during labor and delivery.
In obstetrical malpractice cases, time is of the essence in collecting evidence for your case such as examining, evaluating and obtaining the relevant details like medical records.
A cerebral palsy diagnosis can encompass multiple disorders or disabilities caused by damage to the brain when it is still developing. The trauma often occurs during pregnancy or birth. Many children with cerebral palsy suffer developmental delays in infancy and early childhood. Symptoms can vary significantly but might include:
- Difficulty with walking, crawling, standing or sitting up, and other movement
- Abnormalities in muscle tone
- Motor skill impairments
- Spastic reflexes
- Poor balance and posture
- Speech problems
- Trouble eating or swallowing
- Intellectual and developmental disability
Patients with cerebral palsy might also suffer from chronic pain in addition to these physical and mental challenges. Because the diagnosis of this condition usually comes early in life and there is no cure, cerebral palsy often represents a lifetime of hardship for patients and their families.
Causes of Cerebral Palsy
There are a variety of factors that could increase the likelihood of cerebral palsy. Tragically, preventable medical malpractice can account for many of these factors, including:
- Oxygen deprivation during birth
- Untreated infection in the mother
- Delay or failure to perform a C-section
- Insufficient monitoring of the fetus
- Failure to respond appropriately to breech birth, multiple fetuses, and other complicating events
- Misuse of forceps, vacuum extractor, and other birthing equipment
- Prolonged or difficult delivery
More than one of the medical providers who cared for a mother and child before, during, and after birth could be liable for these errors. Our Orlando attorneys will investigate all of the staff members involved, including doctors, nurses, obstetricians, and others, in order to build your case.
Damages in a Cerebral Palsy Case
The hardships a family faces after a child is diagnosed with cerebral palsy can be immense. The amount of compensation you and your loved ones could recover will depend on the specific nature of your case. Generally, families impacted by cerebral palsy might be entitled to damages such as:
- Medical bills and long-term care costs
- Modifications to the home, family vehicle, and adaptive devices
- Pain and suffering
- Loss of anticipated income
- Diminished relationship between child and parents (loss of consortium)
If you suspect your child suffered harm as a result of negligence during birth, our Orlando attorneys can provide not just qualified legal guidance but compassionate counsel through every stage of your case.
Erb's Palsy & Brachial Plexus Injuries
The bundle of nerves that transfers signals from the spinal column to the shoulder, arm, and hand is called the brachial plexus. Even the slightest traction on your infant’s head can cause damage to the brachial plexus area, resulting in the nerve injury known as Erb’s palsy. In the vast majority of cases, Erb’s palsy is the result of trauma to a nerve network that extends from the spinal cord into the arms. If a baby sustains injury to the shoulder area while passing through the birth canal, it can result in severe Erb’s palsy and other trauma. Despite the similarity in names, Erb’s palsy is different from cerebral palsy because it doesn’t involve injury to the brain.
Brachial plexus injuries can vary in severity. When the nerve damage occurs due to birth injury, it can lead to severe, lifelong weakness in a baby’s arm. In some cases, the arm is even rendered non-functioning because of the trauma. However, injury to the brachial plexus can affect anyone, not just newborns. Potential causes include contact sports, inflammation and tumors. Symptoms of brachial plexus injury include:
- Numbness in the affected arm and hand
- Muscle weakness
- Shooting pain in the arm
- Inability to move the arm
- Abnormal arm posture at the elbow
The most common cause of Erb’s palsy is shoulder dystocia, an obstacle encountered during birth where the baby’s shoulder is caught beneath the mother’s pubic bone. Other potential causes include a feet-first presentation (breech birth) or a baby of above-average size.
When circumstances like these arise, you expect your doctor, obstetrician, and other medical personnel to make intelligent, informed decisions to keep you and your baby safe. Unfortunately, if the professionals in the delivery room fail to respond appropriately, the baby can be injured by the staff’s negligence.
If medical personnel don’t properly relieve shoulder dystocia during delivery, the brachial plexus is at risk of damage from:
- Excessive force to the shoulders or twisting as the baby exits the birth canal
- Misuse of forceps, vacuum and other equipment
- Improper vacuum extraction
- Inappropriate traction—obstetricians should use acceptable maneuvers for alleviating shoulder dystocia
- Failure to identify and anticipate potential risk factors suggesting a difficult or abnormal birth
The impact on a child’s ability to use his or her arm and hand will depend on the extent of the injury to the brachial nerves. Types of damage associated with these injuries and the treatment usually required include:
- Stretching: Nerves typically heal independently within three to 12 months; development of scar tissue could stall or partially halt recovery.
- Tearing: Requires surgical repair of ruptured nerve tissue.
- Avulsion: Nerve root is torn completely from spinal cord, resulting in paralysis of the arm; damage irreparable, though some function could be restored through nerve transfer.
Our lawyers will thoroughly review medical records of your child’s birth to identify what might have caused the development of Erb’s palsy, as well as potentially liable parties. The compensation your family might stand to recover in a birth injury case will depend on the severity of your child’s condition. Prospective damages could include Medical expenses, including surgery, physical therapy, lost wages and impact on future earning ability.
Kernicterus is a type of brain damage that can affect newborn babies who have jaundice. Most infants have some degree of mild jaundice after they are born; diagnosing and treating this condition is standard procedure. However, if a baby’s bilirubin levels rise too high and the jaundice becomes severe, the baby’s brain and neurological system can suffer serious damage.
Failure to diagnose and treat jaundice can result in serious harm to your child.
The most common indication that a baby may be at risk for kernicterus is the yellowing of their skin. Other symptoms of kernicterus include:
- The whites of the child’s eyes turning yellow
- Extreme lethargy (the child is difficult to wake)
- Abnormal bladder and bowel function
- High-pitched, shrill crying
- The child appears limp or weak
- The child’s body arches upward when they are lying on their back
Children who suffer from kernicterus because of excessive jaundice are most likely victims of medical negligence. Logically speaking, there is no reason a child should suffer from kernicterus if they are being properly cared for. Doctors are obligated to monitor an infant’s bilirubin levels carefully in the first 24 hours after birth so they can take immediate action if the baby’s jaundice appears excessive.
If a doctor neglects to properly monitor a child’s bilirubin levels, or if they fail to take action after noting excessively high levels, they can and should be held accountable.
Severe cases of kernicterus can result in the child’s death, but even babies who survive kernicterus are often left with a debilitating disorder such as:
- Cerebral palsy
- Mental retardation
- Hearing and vision loss
- Developmental impairments
Failure to Notice Fetal Distress
Fetal distress is an extremely important issue because if the medical personnel involved in your labor and delivery failed to detect your infant’s distress early enough and did not take emergency measures, your child may have suffered a severe birth injury. Such an outcome may have been prevented if your obstetrician had noticed the fetal distress and remedied it in a timely manner by either fixing the underlying problem or delivering your baby promptly (usually by emergency C-section).
Failure to notice fetal distress is one of the leading causes of birth injuries, and it is an act of negligence by healthcare providers that is often cited in medical malpractice cases.
Some signs of fetal distress should be evident to a doctor well before labor. Indications that a mother may be at risk for a complicated delivery include:
- Maternal diabetes
- Maternal high blood pressure
- Excessive maternal weight gain during pregnancy
- Adverse cervical positioning
- Breech fetal positioning
Other issues that may cause fetal distress include:
- Inadequate oxygen
- Shoulder dystocia
- Placental abruption
- Umbilical cord prolapse
- Failure to perform a C-section
Just as doctors have an obligation to watch for certain complications prior to labor, medical personnel have a duty to monitor the health and vitals of both the infant and mother during delivery. When healthcare professionals fail to provide or deviate from accepted standards of care and injury or death results, you have a right to hold them accountable and seek damages through a medical malpractice lawsuit.
Many birth injuries that result from a failure to notice fetal distress lead to permanent disability.
Birth-Related Neurological Injury Compensation
The Neurological Injury Compensation Plan (NICA) was created by the Florida legislature in 1988 as an alternative to medical malpractice claims for birth-related neurological injuries such as cerebral palsy. This plan was created to benefit your injured infant as well as your family in the event of a neurological birth injury. This no-fault alternative to litigation for compensation after a catastrophic neurologic birth injury has more restrictive benefits than tort law remedies, but you are not required to prove medical malpractice when you file your claim.
This is the only remedy available for cases in which your delivery or post-delivery services were provided by a NICA-participating doctor or nurse-midwife. Participating physicians and nurse-midwives must pay an annual assessment to be covered by NICA. One issue that arises in cases to determine whether you are required to file for benefits under the plan is whether the mother was properly notified regarding the plan.
However, nonparticipating licensed physicians pay into the NICA fund also—in these cases you may pursue damages through NICA as well as with a medical malpractice claim.
Another issue that may cause you to seek assistance under NICA is the push to lower C-section rates by attempting vaginal birth after C-section. This is a risky attempt to keep cesarean section rates low because it seems to increase the frequency of catastrophic birth injuries.
Our birth injury lawyers in Orlando can help you to understand your rights under laws like NICA.
NICA and Litigation Options
Litigation is frequently started by the family to try to collect compensation for neurological injuries caused by medical negligence to offset long-term expenses. Traditionally, the only recourse for collecting compensation for birth injury is to file a medical malpractice lawsuit.
Typically, these cases take a long time to work through the court system and may not always result in adequate compensation. It also puts a strain on families suffering from the devastation of injury.
In order to help mitigate lawsuits, Florida established the Neurological Injury Compensation Association (NICA). Eligible families may be able to get assistance through NICA rather than go through lengthy court proceedings.
NICA helps eligible families obtain compensation more quickly and with less stress than filing a lawsuit. Medical care for the child continues on an ongoing basis at approved medical facilities. To qualify, your child must meet the following criteria:
- Baby must be born alive.
- The child must have suffered a brain or spinal cord injury.
- The injury must have been caused by oxygen depravation or mechanical problem during birth.
- Birth must have occurred in a hospital.
- The child must be permanently damaged.
The benefits of the program include medical care and hospitalization, rehabilitation and other related expenses. When signing up with NICA, you waive the rights to file a claim against the responsible parties.
How Our Birth Injury Lawyers Can Help
Colling Gilbert Wright & Carter have decades of combined experience in dealing with birth injury cases. We understand how devastating these circumstances can be for the parents of an injured infant. Our lawyers will help you through the claim process and fight for you and your child to receive the compensation you deserve for the birth injury and any long-lasting damages you may incur.
If your infant sustained an injury at birth, call our lawyers in Orlando today at (407) 712-7300 to schedule your FREE case evaluation. Colling Gilbert Wright & Carter fights for justice on behalf of clients in Orlando, Florida and nationwide.