Brain damage in a fetus or infant can have many causes. Some of these, such as a genetic mutation, are unavoidable. Others, such as maternal infection or physical trauma, could be avoided with diligent medical care. We trust our doctors to do the best they can for us and especially for our children, but sometimes they make mistakes. When that mistake hurts your child, you may choose to file a lawsuit against the doctors or other medical care providers at fault.
Why file a lawsuit?
In general, you file a medical malpractice lawsuit in order to get compensation for a loss. In the case of a birth injury, that compensation may include medical expenses, the child’s future lost earnings, and ongoing therapy and care costs. It may also include intangible elements like pain and suffering. No lawsuit can undo an injury, but the compensation can ease the substantial financial burden associated with birth injuries.
Medical malpractice suits are extremely complicated, so you’ll need to work with an experienced attorney.
Medical Malpractice Suits for Brain Damage
A medical malpractice suit may involve a doctor, a nurse, another medical care provider, a hospital or clinic, or some combination of these. For ease of use, we’ll talk about medical malpractice lawsuits against doctors. Cases filed against other medical care providers and facilities work the same way.
A medical malpractice suit has several elements. First, you’ll have to prove that the doctor had a “duty” to your child. That’s a legal term that means the doctor agreed to take you and the baby on as patients. If the doctor treated you, helped you deliver, or did any testing or monitoring on you or the baby, that’s proof that there was a “doctor-patient relationship” and the doctor had a duty to you and the baby.
Second, you’ll need to show that your child was injured. No matter what the doctor did wrong, you can’t claim compensation if there was no injury. You can use medical records, test results, and the testimony of your child’s care providers to show that your child was actually injured.
Next, you’ll need to show “negligence” on the part of the doctor. In the context of medical malpractice lawsuits, a doctor is negligent when she fails to meet the accepted standard of care. The standard of care is not a concrete set of rules or steps a doctor has to take. Instead, other doctors in the same field of medicine will act as expert witnesses to explain to the court what current best practices are and how your child’s doctor failed to stick to them. This is one of the hardest parts of the case. The standard of care can be difficult to pin down and your doctor will present evidence from other expert witnesses to show that she did, in fact, meet the standard. Some states also have laws to protect doctors who made an error in judgment about a diagnosis or a treatment method.
Finally, you’ll need to show that your doctor’s negligence caused your child’s injury. “Causation” can be difficult to prove, especially in cases related to brain damage. That’s partly because brain damage is very difficult to diagnose. It’s also tough to prove that the brain damage came from the doctor’s actions and not from a genetic mutation, a later physical trauma, an unavoidable medical issue, or some other unrelated cause. An experienced attorney can help show the link between the doctor’s actions and the injury and can rule out other potential causes. Expert witnesses may be called to testify that the doctor’s actions are the most likely cause of the damage.
In a brain damage case, you might show that your doctor failed to get the baby out of the birth canal in time, allowing the baby to asphyxiate. You might show that the doctor failed to run a routine test that would have detected a dangerous infection. You might show that the doctor used forceps improperly and caused physical trauma to the baby’s brain. You might also show that the doctor failed to treat your baby’s jaundice, leading to acute bilirubin encephalopathy.
What To Do
If you believe your child may have suffered brain damage because of the actions of a doctor or other medical care provider, you should speak to an experienced attorney as soon as possible for a case evaluation. Most reputable attorneys will evaluate your case for free.
When you go to speak an attorney, take all of your child’s medical records with you. If you decide to go forward with your case, your attorney will gather other evidence, including more records of treatment and test results. Your attorney will also find expert witnesses to testify about the standard of care and about the link between your doctor’s negligence and your child’s injury. Remember to speak to your attorney about her fees and about how the case will proceed. You can ask about how often you and your child will need to go to court, if at all, and how long the case is likely to take. Take the time to ask all your questions and make sure you understand the answers before you decide whether or not to purse the case.
The law limits the amount of time you have to open a case, so act quickly. This time limit is called the “statute of limitations” and varies by state, but is usually only a couple of years. The statute starts to run when you learn about the injury, so you can still file a suit even if your child didn’t develop symptoms right away.