- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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Few events are as special and emotional for parents as the delivery of their new baby. Especially when the baby is placed into the mother’s arms for the first time. So much preparation, care, and hope have gone into the arrival of their newborn.
Birth Injuries and Defects
While most children are born healthy, some are born with birth defects. Others can suffer injuries in the birthing process due to medical complications or have been harmed during the babies’ prenatal care.
Birth injuries
A birth injury can result from medical malpractice during the delivery or from the hospital’s care leading up to the delivery. A birth injury can also be from medical malpractice in the baby’s prenatal care stage.
Most of the time, the prenatal and delivery phases are well planned and monitored carefully by the healthcare providers without incident or injury to either mother or child.
Other times, unexpected problems can occur, forcing doctors to make critical decisions under extraordinary time restrictions and pressure. Even when there is an injury to the child, this does not necessarily mean the cause was the result of medical negligence.
Medical negligence
To determine if there was medical negligence in the patient’s medical treatment, the experts must thoroughly review the patient’s medical records, medication history, lab results, sonogram, other forms of imaging, and hospital notes and referrals from the beginning of the pregnancy to the delivery.
Doctor Actions Below Standard of Care
For a medical provider to be found negligent, the treating physician must have, through an act or omission, fallen beneath the generally accepted standard of care and was the legal and factual cause of the injury or death of the patient or child.
The two most common ways doctors are found to be negligent occur by failing to properly diagnose and respond to the conditions presented at the time of the baby’s delivery or by negligence in the mother’s prenatal care.
Near-Concurrent Causes In Birth Injuries
The following are two examples of medical malpractice arising out of a single doctor’s care. The OBGYN physician in the examples below was both managing the mothers’ prenatal care and was the one who performed the delivery.
Negligence at the prenatal stage (Cause #1)
The first instance of medical negligence was the failure to diagnose the mother with gestational diabetes in the second trimester of her pregnancy. Gestational diabetes can result in accelerated and abnormal weight gain of the fetus, particularly during the last trimester of the pregnancy.
Failure to diagnose
Because the doctor failed to diagnose the mother’s diabetes, the doctor did not manage the condition. The doctor was, therefore, unaware there was a substantial risk of the baby growing too large (macrocosmic) to deliver by vaginal delivery.
Had the doctor known of the mother’s diabetic condition and the associated risks of delivering a macrosomic infant by vaginal delivery, the doctor would have and should have scheduled a c-section on the mother. Unfortunately, this did not happen, as you shall see with devastating consequences.
Negligence at the delivery phase (Cause #2)
Delivery was negligent
When the mother’s water broke, she was rushed to the hospital by her husband. The nursing staff notified the doctor that the mother was in labor and dilating.
The doctor arrived two hours later. The patient was fully dilated. The doctor instructed the patient to begin pushing. After about fifteen minutes, the baby’s head was extracted. However, extracting the baby’s shoulders was another matter.
Consequently, after repeated attempts, the doctor was forced to break the baby’s shoulders to extract the upper body, which also failed. Still unable to deliver the baby, the doctor instructed the nursing staff to request access to an emergency operating room and to immediately prep for an emergency c-section.
The patient had to be immediately taken to the emergency room. The doctor then pushed the baby’s head back into the mother and held it there until they arrived at the operating room.
In so doing, the doctor unwittingly forced the baby’s body to press against the umbilical cord, resulting in a prolapsed cord and cutting off the baby’s air supply.
Baby born dead
By the time the baby was delivered by c-section, the baby was born dead.
The parents filed a wrongful death medical malpractice action against the doctor and hospital for the loss of their son. The defendants settled the lawsuit before trial for an undisclosed sum.
Watch Personal Injury Attorney Mike Maxwell Discuss Birth Injuries In Medical Malpractice Cases:
Congenital Disabilities Masked As Birth Defects
Many people associate a birth injury with a congenital disability. However, they are neither the same medically nor legally and need to be distinguished. Even among doctors, differentiating between birth injuries and congenital disabilities can be initially problematic.
Difficult to diagnose
At the time of birth, it can be difficult to conclusively determine if the injuries sustained by the baby resulted from a negligent act during the delivery or were secondary to a congenital disability that may have gone undiagnosed during the prenatal phase.
Atrioventricular Septal Defect
A congenital condition known as an Atrioventricular septal defect occurs annually in over 2,000 babies nationwide. A genetic disorder is a heart defect that affects the valves between the heart’s upper and lower chambers.
The condition can cause severe injury or even death if the baby is subject to a sudden onset of escalating stress levels for a prolonged period, such as a delivery that has gone wrong and causes severe and prolonged stress to the fetus, as described in the above birth injury example of a macrosomic baby.
Congenital birth defects
A congenital disability is a structural abnormality or changes within the genetic composition of the fetus that can manifest even before a baby is born. Genetic mutations can impact virtually any part of the body, often with severe implications for the child’s long-term health.
Frequency of Congenital Disabilities
According to the CDC, each year, congenital defects affect one in every thirty-three babies, about three percent of all babies born in the United States. Moreover, congenital disabilities are the leading cause of infant deaths, accounting for nearly twenty percent of all infant deaths.
In addition, the cause of many congenital disabilities is simply unknown. In contrast, others can be caused by the mother’s own actions or omissions or caused by the doctor’s mismanagement of the mother’s prenatal care.
Environmental and Drug Factors
Congenital disabilities are caused not only by heredity but also by environmental and drug factors, including:
- Certain prescription drugs
- Infection
- Radiation
- Ingestion of chemical toxins in food
- Exposure to environmental toxins in the air
What mothers can do to help prevent birth defects
Not all congenital disabilities can be prevented, yet women can increase their chances of having a healthy baby by managing their health before and during the pregnancy by:
- Avoiding harmful and harmful and questionable substances
- Choosing a healthy lifestyle
- Communicating regularly with their healthcare provider
- Early testing for genetic markers
Medical Malpractice Damages
Recovering general damages limited by law
Your state jurisdiction can limit the types of damages that can be recovered in medical malpractice cases. One such state is California.
The California Medical Insurance Company Reform Act (MICRA) was enacted in 1975. It limited the amount a plaintiff can recover for general damages, primarily pain and suffering, to $250,000.
The apparent role of MICRA was to protect the special interests of healthcare and medical liability insurance companies by artificially capping the amount a plaintiff would otherwise be entitled to recover under general damages.
The law was heavily criticized by consumer and patient rights groups. As a result of public pressure, MICRA was amended.
MICRA Finally Amended In 2022
On May 23, 2022, California revised the MICRA law by enabling two types of caps on general damages, depending on whether a wrongful death claim is involved:
Wrongful death cases
In a wrongful death case, the MICRA cap increases to $500,000. Every year after that, the cap increases by $50,000 until it reaches $1 million.
Non-wrongful death cases
For medical malpractice cases that do not result in wrongful death action, the cap starts at $350,000 and increases yearly by $40,000 until it reaches $750,000.
Personal Injury Attorneys
If you have questions or require additional information about your legal rights and obligations, consult a verified Personal Injury Lawyer with substantial experience with medical malpractice.
