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Why are Birth Injuries Cases Difficult to Prosecute?

By Rheingold Giuffra Ruffo Plotkin & Hellman LLP

Birth injuries present a unique set of problems that many attorneys are ill-equipped to address. Birth injuries, unlike birth defects, are caused by something that occurs during delivery or immediately after. It is due to complications during childbirth or because the doctor improperly used a set of tools, like forceps.

Birth injury suits are complicated for many reasons but primarily because the injured person, the baby, is unable to articulate the nature of the injury, the injuries are difficult to discover, and causation is difficult to establish.

Victims of medical malpractice can articulate their pain, injury and even occasionally identify the person who injured them. Conversely, parents and doctors rely on inference and cries to ascertain if an injury occurred.

Similarly, birth injuries are often difficult to discover. Similar to medical malpractice suits in which a sponge or tool is left inside of a patient, babies feel pain or discomfort but are unable to identify the source or cause. Birth injuries can go months or even years without a proper diagnosis. Not to mention, by the time they are detected, your primary concern is and should be with treatment, not litigation. By the time a lawsuit becomes realistic, it could be years and by then memories fade and records go missing.

Finally, linking a person’s action to your baby’s injury is complicated. In fact, establishing a connection is difficult in most medical malpractice cases.

If you believe your child suffered a serious injury during delivery, you may want to spend a few minutes to speak with an attorney. You do not have time to pursue a lawsuit, but you can at least allow an attorney to conduct an investigation and preserve your right to seek compensation. You may need the money from a trial to pay for the long-term care of your child.

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