Having a baby is supposed to be a joyous occasion. For some, this joy turns to pain when the mom or baby suffers an injury during the labor and delivery process. While most birth injuries heal on their own and are not serious, in some cases these injuries are due to medical negligence and can result in painful, chronic complications. If you or your child are injured as the result of medical negligence, you may be able to seek damages in court.
Common birth injuries
During labor and delivery, it is common for medical procedures to be used to help ease the process for mother and baby. If the mother is having difficulty pushing the baby through the birth canal, for example, forceps or suction may be used to extract the newborn. CDC data show the use of forceps have been in decline compared to 1990, although the procedure is still recommended by doctors in certain circumstances. In some cases, labor will be induced to expedite the process if the baby is late, or if the mother is experiencing serious discomfort. These procedures, and others like them, can be helpful but they also increase the risk of birth injury to both mother and baby.
• Brachial Plexus Injuries (BPI)
When damage occurs to the nerves that originate from the spine and spread throughout the neck, shoulders, arms, and hand, the child can become permanently and severely injured. Neuropraxia, which occurs when the nerve is stretched, is the mildest form of BPI. When the nerve roots are completely torn from the spine, however, the child may become paralyzed for life. BPI injuries are more likely with large birth weight babies, but they can also be caused by any type of difficult delivery or mishandling during delivery. The use of forceps increases the risk.
- Bone fractures
When a delivery is long and difficult, the newborn may suffer broken bones. The most common fracture involves the clavicle (collarbone). Fortunately, most bone fractures heal on their own with immobilization and time. In some cases, however, serious bone fractures can result in extreme pain for the child and may even lead to long-term problems.
- Perinatal asphyxia
When the fetus does not receive enough oxygen, perinatal asphyxia may occur. Babies born with this condition often have labored breathing and a pale complexion. In extreme cases, perinatal asphyxia can cause seizures, shock, coma, and even death. This complication can range from mild to severe, clearing up on its own or resulting in permanent damage to the brain.
- Facial paralysis
Fortunately, facial paralysis injuries usually heal on their own with time. However, paralysis can be permanent if nerve damage is significant. This condition typically involves a lack of facial muscle control and is often most visible when the baby cries. Facial paralysis usually occurs due to trauma during the delivery process, often involving the use of forceps.
- Spinal cord injuries
These injuries are often the result of trauma to the spinal cord or surrounding nerves and are generally more serious than other birth injuries. Improper use of forceps is commonly the cause. Spinal cord injuries can result in neurological problems and paralysis.
- Cerebral palsy
Characterized by weak muscles and problems with motor skill development, cerebral palsy is a life-long condition with no cure. About two or three out of every 1,000 children are born with cerebral palsy. Labor and delivery complications may cause cerebral palsy. Potential complications include detachment of the placenta, untreated infection during pregnancy, umbilical cord problems during delivery, and anything that affects the oxygen supply during the delivery process.
What is informed consent?
Informed consent refers to your OB-GYN or midwife’s obligation to provide you with adequate information about care options so that you are able to make an informed decision about the labor and delivery process.
According to Aaron Caughey, M.D., professor of the Department of Obstetrics & Gynecology at Oregon Health & Science University, informed consent is practiced regularly when it comes to C-sections but is often overlooked with vaginal births.
"Informed consent is an ethical concept designed to respect patients’ moral right to bodily integrity by protecting them from unwanted medical treatment or intervention, but giving birth vaginally is a natural physiologic process that by definition is not medical treatment,” Caughey says. "There will be risks associated with any route of delivery, whether a woman has a vaginal birth, an operative vaginal delivery, or cesarean birth. But by the time a woman goes into labor, she should be well-informed of these risks because her OB-GYN will have discussed them with her during her prenatal care visits and, ideally, they will have come up with a plan together that respects her autonomy and is medically in the best interest of her and her baby.”
Know your rights
If forceps were used during the delivery process, for example, and you believe that your child has suffered birth injuries as a result, a lack of informed consent could have a significant impact on the outcome of your birth-injury lawsuit. Even though consent can be implied through cooperation—for example, you offer your arm when the nurse brings an IV—this is not actual consent. If you haven’t previously been provided with adequate information about your treatment options, behavior simply cannot be used as a stand-in for consent.
Seek Legal Counsel Today
If you or your baby has been injured during the labor and delivery process, an experienced birth injury lawyer can help you obtain the compensation you deserve.
“If the child is born alive with significant cognitive and physical infirmities, you’re looking at a lifetime of care that is going to be quite onerous and burdensome to the family, and hugely expensive,” says Andy Groher, an attorney with RisCassi & Davis who has 39 years of experience in medical malpractice and personal injury cases, and recently settled a birth injury case for $6 million. “Oftentimes, if in fact the birth injuries are related to negligence on the part of medical care providers who are handling the pregnancy, labor, and delivery—which obviously is the first step—if you can do that, then you’re looking at the difference between being able to provide your child with good, adequate care, to give your child the best opportunity to have a meaningful life, versus being subjected to the whims of the state and federal government’s benefit programs, which, while they’re a terrific safety net for people, they’re minimum care, not maximum care. Having sufficient funds to supply what your child deserves is critical.”
Along with the potential for financial compensation, bringing your case to court gives you the opportunity to speak for the rights of your child, who will be unable to do so for some years—or, depending on the nature and severity of her injury, may never get the chance.
“As a parent, you’re advocating for your child who’s not in a position to advocate for himself or herself,” Groher says. “You take a child with all the potential in the world before he’s born or she’s born, and then that potential gets snuffed out during the labor and delivery, that’s a significant loss. And your child isn’t in a position to say to the doctor and the nurses and the hospital, ‘you’re accountable,’ that’s the parent who has to do that.”