Birth Injuries – Master Resource Page

An estimated 4 million children are born in the U.S. every year, according to federal statistics. That makes labor and delivery among the most common reasons for hospitalization.

Although the majority of infants are delivered with few or no physical problems or injuries, others are far less fortunate. On average, an estimated 29 in every 1,000 babies will suffer from some type of birth injury. In most cases, these injuries are preventable and result from physician error or mistakes made by other health care providers.

At Jeffrey Glassman Injury Lawyers, our Boston birth injury lawyers know well the complete upheaval such an incident can have on the lives of all involved. Beyond the initial shock and confusion, there is anger. There is concern about what this is going to mean for the child’s future, and questions regarding how the family is going to cope financially.

Our skilled, compassionate legal team is prepared to carefully analyze the details of your case to determine whether there are grounds for legal recourse. Where our team is successful, clients can recover damages for:

• Medical bills
• Ongoing medical costs
• Lost wages
• Loss of future income
• Loss of life enjoyment
• Physical and mental pain and suffering

Medical malpractice lawsuits are appropriate when there is evidence that:

• The health care professional owed a duty to plaintiff (i.e., a doctor-patient relationship was established);
• The health care professional deviated from the applicable standard of care, thereby breaching the duty owed to patient;
• There was a causal connection between the doctor’s deviation from the applicable standard of care and injury to the patient;
• Patient suffered an injury.

It’s important to point out that a poor health outcome in and of itself isn’t enough to prove medical malpractice. There is very specific proof that has to be established.

However, courts do recognize that in some situations, the injured person filing a lawsuit (known as “the plaintiff”) may have some trouble proving medical negligence. Sometimes, people are harmed in the course of receiving medical care or undergoing treatment, but they can’t cite exactly what caused the injury or illness. In these cases, plaintiffs may cite “res ipsa loquitur,” which translates from Latin to, “the thing speaks for itself.” This doctrine shifts the proof burden from plaintiff to defendant. It requires plaintiff first show:

• Proof of the actual cause of injury is not attainable;
• Injury is not the sort that usually occurs without negligence of some sort;
• Plaintiff wasn’t responsible for his or her own injury;
• Defendant or its agents or employees had exclusive control of the instrumentality that caused injury;
• Injury could not have been caused by any instrumentality other than that which defendant had exclusive control.

With the stakes in birth injury claims enormously high, it’s imperative for plaintiffs to have a Massachusetts birth injury attorney with proven experience, both in trial and in settlement negotiations. Laid out within this resource area are some of the most common issues and questions that arise in the course of filing and pursuing a medical malpractice lawsuit for birth injury in Boston.

It’s difficult to imagine that even with all of our advances in medicine and technology that so much could go wrong in the course of pregnancy and delivery. But it happens.

In Dealing With Birth Injury/ Prevalence and Statistics, we explain more about how birth injuries affect families and how common the problem is.

When we talk about “birth injury,” we are referring to damage sustained during the birthing process. Usually, this occurs as the child is moving through the birth canal.

There are many cases in which infants suffer minor injuries during birth, and these issues may resolve on their own without treatment. However, as a 2003 study in the journal Paediatric and Perinatal Epidemiology noted, 29 out of 1,000 births result in serious birth trauma.

These often involve:

• Head trauma, including skull fractures and intracranial hemorrhage
• Nerve injury
• Perinatal asphysxia
• Broken bones

Some cases may simply require follow-up treatment for a few months or corrective surgery, while others may necessitate a lifelong care plan. Your family should not have to bear this financial burden. We can help.

Because medical malpractice litigation can be prolonged and arduous, parents often take into consideration the extent of the injury and long-term consequences before deciding how best to proceed.

Physicians and other health care providers who specialize in providing treatment to pregnant women, fetuses and newborns are required, at minimum, to ensure they provide care that is on par with what a similarly-qualified professional would give under the same or similar circumstances.

Although there is a national standard of care to which health care professionals must adhere, the locality rule may increase or decrease that standard to some degree. For example, a doctor in a rural area may not have all the resources and knowledge of a physician in a more metropolitan hospital.

There are many stages at which this failure might occur, which is why we differentiate between Prenatal/ Perinatal/ Neonatal Malpractice.

• Prenatal Negligence – Prenatal care is the health care received throughout pregnancy, or prior to birth. Negligence in the course of examinations, health tests, ultrasounds, misdiagnosis or missed diagnosis can result in serious, preventable health complications.
• Perinatal – These are birth injuries that arise as a result of negligence during the labor and delivery process. It could mean failure to detect or manage fetal distress, causing damage with forceps, delaying a Cesarean section or inappropriate administration of medications.
• Neonatal Negligence – Neonatal injuries are injuries are conditions that arise shortly after birth and, if not managed effectively, can result in permanent disability. Some examples of these conditions include neonatal jaundice, hip dysplasia and hypoglycemia.

With so many potential issues that can arise during pregnancy and childbirth, it’s imperative that physicians and other health care professionals be on alert. When Missed Diagnosis/ Failure to Treat results in injury to the mother or fetus, it can be grounds for legal action.

Doctors have been known to misdiagnose issues such as:

• Existence of pregnancy
• Nature of pregnancy (ectopic, uterine, multiple, etc.)
• Pregnancy risks (gestational diabetes, mother’s medical history)
• Calculation of gestational age
• Fetal stress test monitoring
• Maternal infections
• Infant size and position (i.e., too large for delivery or in a breech position)
• Treatment of Preeclampsia
• Jaundice or other conditions of child after birth

Although not every condition or injury is preventable, many are with proper prenatal care and postnatal care.

Birth injuries are always a serious matter. Sometimes, even a mild birth injury can be not only expensive, but result in unnecessary pain and suffering for your baby. In the worst case scenarios, birth injuries may result in lifelong conditions such as paralysis, brain damage and even death.

Parents should recognize there are many Types of Birth Injuries, each with different causes. The most common among these:

• Cerebral Palsy
• Intra-ventricular hemorrhage
• Meconium Aspiration
• Erb’s Palsy
• Spinal Injuries/ Paralysis
• Forceps Injuries
• C-section Injuries (increasing prevalence, elective, failure to perform, etc.)
• Broken Bones
• Infections
• Hemorrhage/ Bleeding
• Eclampsia/ Preeclampsia
• Drug Complications

If you suspect your child has been injured as a result of medical negligence, the best course of action is to discuss these concerns with an experienced injury attorney.

One of the most important decisions to be made after establishing a birth injury has occurred is Choosing a Birth Injury Lawyer.

Recognize that birth injury cases are highly technical, and thus often arduous and prolonged. Although the amount of time it will take to conclude a case will depend heavily on the underlying circumstances in the case, you can be fairly certain you will be working with your attorney for several months, at minimum. Sometimes, though, these cases can take years.

You will need to find a law firm that is established, has ample resources and employs attorneys who are dedicated to fighting tirelessly for you and your child.

Some key questions you will want to ask your attorney are:

• What percentage of your firm’s cases are birth injury cases?
• What is the firm’s record of verdicts and settlements?
• What will the client-attorney communication process be like throughout litigation?
• What depth of knowledge and experience does my attorney have in handling cases involving the types of medical problems I/ my child experienced?

The Boston birth injury lawyers at Jeffrey Glassman Injury Lawyers can help answer any questions or concerns you may have regarding the claims or litigation process.

Every jurisdiction in the country sets limits on the amount of time plaintiffs have to file a claim for legal actions. These are known as the Statute of Limitations.

When it comes to birth injury lawsuits in Massachusetts, a claim for injury or death typically must be filed within three years, per MGL c. 260 § 4. In most cases, the three-year time limit begins to run on the date the injury or death occurred. The injury or death is known as the “cause of action.”

However, there are situations, particularly when it comes to birth injuries, where the cause of action may not be discovered right away. In those cases, the law allows the statute of limitations to be tolled to the time plaintiff discovered – or should have discovered – the injury.

With regard to children in medical malpractice cases, state law allows the same Discovery Rule allowance, which grants a maximum of 7 years from the date of injury from the malpractice. However, if the injury occurred prior to the child turning 6-years-old (which is always the case in birth injury litigation), the case can be filed prior to the child’s ninth birthday.

Understandably, many parents and caretakers with a child who suffered a birth-related injury are overwhelmed by the prospective legal costs of filing a claim. Many believe they simply can’t afford it, given the fact that these cases require many resources upfront.

The good news is, attorneys handling medical malpractice lawsuits in Boston do so on a Contingency Fee basis. What this means is your injury lawyer is only paid if the case is successful, either through a pre-trial settlement or a verdict at trial.

In any contingent fee arrangement, the attorney and client agree upfront to a fixed percentage (usually one-third) of the recovery. The attorney is paid on the final amount awarded to plaintiff. If the case is lost, neither the plaintiff nor attorney will receive money.

Contingency fees allow people who are not wealthy to have equal access to the legal system.

MGL c. 231 §60I states that attorney fees for services rendered in medical negligence cases must be “fair and reasonable.” Although exact fees will depend on the complexity of the case, the law is clear that no attorney can take more than 40 percent of the first $150,000 recovered, 33 percent of the next $150,000 recovered, 30 percent of the next $200,000 recovered or 25 percent more than the amount by which recovery exceeds $500,000.