When Is a Birth Injury Compensable

The law provides a remedy for many types of harm incurred as a result of someone else’s negligence. If another person breaches their duty of care to you by acting in a certain way or omitting certain actions, you may be entitled to compensation for any damages you receive as a result.

This applies to many areas of medical malpractice as well, which are technically under the category of negligence. If you or your baby suffers an injury before, during, or shortly after delivery, you might be entitled to compensation for those damages.

But when exactly are birth injuries compensable? And how do you initiate legal action?

Types of Birth Injuries

There are many types of harm that could qualify as birth injuries. If you or your baby is harmed in some meaningful, measurable way because of some medical provider’s actions or omissions, you might qualify for compensation. For example, if a doctor makes a mistake and your infant suffers from deprivation of oxygen before, during, or after birth, they may develop complications related to hypoxic-ischemic encephalopathy (HIE), which can in turn cause cerebral palsy for life.

There are many categories of birth injuries, which can apply to both you and the baby. However, all of them share in common the idea that some doctor or medical provider breached their duty of care and deviated from what a reasonable medical provider would do.

When Is a Birth Injury Compensable?

Birth injuries, under negligence law, are compensable when you can prove the following elements:

· Duty. First, you must establish that your medical provider had a duty to you. This should be the easiest piece of the puzzle to prove, as we expect doctors and medical providers to do no harm.

· Breach. Second, you must prove that there was a breach of that duty. In other words, you need to show that this doctor or medical professional acted in a way incongruous with how a reasonable person in this discipline would act. This is often the most difficult piece of the puzzle to prove.

· Harm. You also need to show that there were meaningful, calculable damages. What other medical expenses did you accrue? What kind of pain and suffering did you experience? There are many categories of damages that you can seek, but you still must show what those damages are.

· Causation. And, of course, you must show that there’s a causation link between the medical provider’s negligent actions and the damages for which you seek compensation.

Ultimately, that means you have to prove:

·Error. You have to show that your medical provider made a significant mistake, and a legally relevant one.

·Damages. Proving compensatory damages is often the hardest part of the equation. You must be able to substantively show the exact amount of damages that you’re claiming.

·Causational link. You must also prove a causational link between the medical error and the damages, showing that the damages wouldn’t have happened if it weren’t for the breach of duty.

How to Initiate Legal Action

How do you initiate legal action if you suspect birth injury as a result of medical malpractice?

·Talk to a lawyer. First, talk to a lawyer as soon as possible. Lawyers specializing in medical malpractice and birth injuries can evaluate your case, determine your odds, and help you decide whether it makes sense to move forward with a complaint. Most lawyers will meet with you for an initial consultation without charging you a penny.

·Bring a claim. If you and your lawyer decide it makes sense to move forward with legal action, you’ll bring forth a claim. That typically means filing a complaint with the court and beginning the discovery process.

·Gather evidence. During discovery, both you and the opposing side will begin gathering evidence. The more evidence you have to show the extent of damages and the causational link between the medical error and those damages, the stronger your case will grow.

·Negotiate. The vast majority of medical malpractice claims are settled out of court. That’s because going to trial is extremely expensive, time consuming, and stressful for both parties. Ideally, you and your medical provider will reach a settlement that is mutually acceptable. Note that this process can take many weeks, months, or even years in complex cases.

·Go to trial. If you’re unable to reach an agreeable settlement, you may end up going to trial.

Not all birth injuries are compensable. However, under negligence law and the doctrine of medical malpractice, it’s possible to get damages for injuries you or your child sustained as a result of a medical mistake. If you suspect medical malpractice leading to birth injury, contact an attorney as soon as possible.