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Frequently Asked Questions about Birth Injuries

Q: What’s the difference between a birth defect and a birth injury?

A: Birth injuries are generally caused by something that went wrong during delivery itself, while birth defects usually involve harm to a baby that arose prior to birth due to something that happened during or before the pregnancy.

Q: What kinds of situations give rise to a lawsuit for birth injuries?

A: Most of these cases occur when a doctor fails to adequately assess or respond to conditions and/or complications during a woman’s pregnancy or delivery, or when a woman takes a prescription drug during pregnancy that causes harm to the baby.

Q: Will a lawsuit always be successful if a baby is harmed through a birth injury?

A: No. Some birth injuries are unavoidable. The key question is whether medical providers failed to give you or your baby adequate medical care during pregnancy and/or delivery.

Q: What is medical malpractice?

A: Medical malpractice is negligence committed by a professional health care provider — a doctor, nurse, dentist, technician, hospital or hospital worker — whose performance of duties departs from the accepted standard of care of those with similar training and experience, resulting in harm to a patient. The profession itself sets the standard for care by its own customs and practice.

Q: In a lawsuit for a birth injury, how does a jury determine if a doctor’s actions were within the accepted standard of care?

A: A jury will consider testimony by experts — usually other doctors — who will testify whether in their expert opinion, your physician followed standard medical practice or fell below the accepted standard of care. A specialist, like an obstetrician, is held to a higher standard of care than a non-specialist.

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Q: What causes cerebral palsy?

A: Cerebral palsy is the generic term for a number of disorders affecting a baby’s brain function and body movement. Cerebral palsy can be the result of an injury to a baby’s brain in the womb, during delivery or after birth. It also can be caused by a lack of oxygen flow to a baby’s brain during delivery. After the baby is born, cerebral palsy can be caused by trauma to the head from falls, car accidents and abuse.

Q: Who will receive money after a successful lawsuit for a birth injury?

A: If a living child suffers harm due to a birth injury caused by negligence, damages will typically go to the child, sometimes in the form of a trust. In some situations, the parents can receive compensation for emotional distress. In cases where a birth injury led to the death of the infant, the parents may bring a wrongful death lawsuit and may receive damages for loss of companionship, pain and suffering, emotional distress and medical expenses.

Q: What is Erb’s palsy? Is it permanent?

A: Erb’s palsy occurs when the brachial plexus nerves located near the baby’s neck are stretched or torn during birth, resulting in varying degrees of loss of function in the arm, wrist, hand and/or fingers. Usually, the child will regain function in the affected areas, but not always. In cases where the nerves have been completely severed, the child may require surgery to repair the damage.

Q: Is there a limited amount of time to file a birth injury lawsuit?

A: Yes. In general, many states have a two-year statute of limitations on medical malpractice cases, meaning if you fail to file your suit during those two years, you will not be able to bring a lawsuit. The statute of limitations may begin running at the time of the injury or at the time the injury is discovered. An attorney in your area can tell you more about the applicable statute of limitations in your state and how it may affect your birth injury case.

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