Albuquerque Birth Injury Attorneys

Statistics suggest that close to 30,000 babies suffer birth injuries each year in the United States.   In most of these cases, the injuries are minor and the baby fully recovers.  However, in far too many cases, babies suffered serious injury or death.  As experienced Albuquerque birth injury lawyers, we know how heartbreaking this can be to parents.

Birth injuries are preventable in many cases.  Many cases of birth injury involve medical negligence or medical malpractice.   The most common causes of birth injuries include inadequate prenatal care, undiagnosed prenatal complications, Ob/Gyn errors, negligent delivery, and obstetrical errors.

Proof of Medical Malpractice is Difficult

Where medical negligence or medical malpractice caused the birth injury, the doctor or medical provider is liable for the damages caused by the negligence.  Like all medical malpractice claims, the medical provider or doctor’s care must have fallen below the standard of care in the medical profession.

Again, like most medical malpractice claims, birth injury cases can be difficult to prove.  These cases require the assistance of medical experts that can clearly establish that the doctor’s medical care did indeed fall below the standard of care customary in the profession.  The medical provider will argue that the birth injury was unavoidable and that nothing could have been done differently to prevent the injuries.  It will up to your medical expert to prove otherwise to a jury.

Injuries and Damages Often Enormous

Birth injuries are devastating to the baby, new parents and the family.  The injuries are often permanent causing life-long suffering for the parents and the child.  In the case of permanent injuries or the death of a newborn child, the harm to the child, parents and family are unimaginable and hard to quantify.  Unfortunately, that is what must be done.  The injuries and damages to the child, the parents, and the family must be quantified, and the negligent medical professionals and medical facility must be held responsible.

Like all personal injury cases, the injured parties are entitled to damages.  These include compensatory, loss of consortium, future medical costs, and loss of income both for the parents and for the child.  It may seem odd to suggest lost earnings for a baby, but in case of palsy or brain damage, the lost wages over a lifetime of lost earnings can be enormous.

Injuries and Damages Must be Quantified Which is a Complex and Difficult Task

Though it is hard to put a dollar figure on such an incomprehensible injury, it must be done.  The process can be long and emotionally draining, but it is the only way to hold the negligent medical provider, doctor or medical facility responsible for the harm they have caused to you, your child and your family.

To quantify them, it is necessary to get an array of experts including medical experts, mental health experts and economists to name just a few.  Others are often required depending upon the situation.

4 Maternal Health Conditions Increase Birth Injury Risks

There are a number of maternal conditions that can lead to difficulties during the pregnancy and/or labor. These are all very well established risk factors.

Because they are so well established there is duty to monitor them to avoid or at least minimize harm to the baby.  Failure to monitor and protect against them could indicate birth injuries as a result.

Health Conditions of the Mother Causing Birth Injury Risks

There are 4 relatively common health conditions that are obvious indicators of possible dangers to come during the pregnancy and birth. As such, medical providers should determine if they exist, monitor them if they do, and take precautions to protect the mother and baby to the degree possible.

  1. High Blood Pressure
  2. Diabetes
  3. Obesity
  4. Preeclampsia

These are often overlapping and/or related. Each can contribute to very difficult labor with undue and sometimes dangerous stress on the baby during the delivery process.

These are readily detected. There is no excuse for a failure to identify these issues and then to take the actions necessary to minimize the risks to the baby.

Stress on Baby During Delivery Can Result in Birth Injuries

Each of these conditions can lead to very difficult births. In addition, the conditions themselves can severely stress the baby during birth. The most serious risk is oxygen deprivation to the baby. This can and often does lead to cerebral palsy along with a spectrum of other birth injuries related to difficult labor and delivery.

Fetal Heart Monitoring

It is fundamental to delivery that the baby be monitored throughout the birth. This is done by fetal heart monitoring.

It is inexcusable yet far too common that the fetal heart monitor is not closely tracked or improperly tracked. When these errors occur, the consequences can be catastrophic leading to cerebral palsy or even death.

If your child was born with cerebral palsy, it is important to determine the cause. Specifically, it is important to know if medical malpractice was the cause.

It is particularly important to determine if the risk factors were properly identified and whether proper monitoring of the baby occurred during birth.

From there it must be determined if there was medical malpractice. Finally, it must be shown that the medical malpractice was the cause of the cerebral palsy and not something else.

Step #1 in a Cerebral Palsy Birth Injury Case: Collect All Medical Records for Expert Review

There are few things more harmful to a child and a family than cerebral palsy. Cerebral palsy birth injuries are rare but when they occur they are devastating.

Cerebral palsy birth injuries are not always or even most of the time related to medical malpractice.  However, even one case of medical negligence leading to cerebral palsy is too many.  One instance is not just a statistic.  It is a child and a family irreparably harmed.

Many Possible Links in the Chain of Medical Care

These providers include a host of possible culprits from doctors, nurses, physicians’ assistants, midwives to many possible providers in the course of care. The negligence is often overlapping and cumulative.

The existence of medical malpractice must first be determined which is not as easy as one might think.  From there, it is then necessary to determine who all was negligent in the line of care of the mother and child.

Review by Medical Expert is Absolutely Essential

All medical malpractice claims, including cerebral palsy claims, require an expert medical review. Without one, the case does not get out of the gate.

In cases were medical malpractice is suspected as a cause of a child’s cerebral palsy, it is important to have the medical records reviewed by a medical expert. This will serve both to determine if medical malpractice was to blame and to identify each and every medical provider that played a role.

Without an expert review and the proper experts willing to testify in court, the case gets dismissed summarily by the court by the defendants’ Motion for Summary Judgment. It cannot be stressed enough how important experts are in these cases.

Most often due to the expense of obtaining an expert, the medical records review will begin with an attorney who can both conduct the initial review of the records and then if merited identify appropriate and credible experts for a more extensive review of the records.

Catastrophic Harm to Child and Family

There will a lifetime of physical, mental and financial harm to the child and the family

The injuries and other harm in a cerebral palsy case can be catastrophic to the child and the family both emotionally and financially with a lifetime of care, medical expenses, rehabilitation, therapy, limited job opportunities and more.

In fact, the medical expense alone over the course of lifetime will typically be in the millions and in the high millions in case of very serious cases. These are determined based upon a review of the medical records with both medical experts and economists. They will help to create a life-care plan that will insure that the child is properly cared over a life-time of treatment, rehabilitation, physical therapy, speech therapy, mental health services and the list goes on.

The future medical and related costs will constitute the bulk of financial damages. However, in many cases there can be other financial consequences as well such lost earnings due to the need of the parent(s) to provide care to the child. All told, the financial harm can be enormous and the negligent medical providers and hospitals should bear the financial responsibility of the harm that they have caused, not an innocent child and family.

Get ALL Medical Records

The first step is to gather all medical records including prenatal, birth and post birth records. In cases where cerebral palsy is the result, the fetal heart monitoring strips are absolutely essential. It is shocking how often these are neglected or misused during the delivery process. It is then essential to have those records reviewed by an independent medical expert.

It is best to obtain the records yourself due to the reduced delay and expense. However, there are times when it can be very difficult and expensive to obtain them.

Seek the Guidance of an Experienced Medical Malpractice Attorney

CP is extraordinarily difficult for a family. An experienced attorney can shoulder the legal aspects so the family can focus on more important things.

Everything about cerebral palsy cases is extraordinarily difficult on the family. Parents may be overwhelmed as it is just trying to care for their child without having to deal with possible legal claims. These cases have enormous stakes for the child and the family. It is highly advisable to seek the guidance of an experienced medical malpractice attorney.

It is important to act on these as soon as you know your child has been harmed and you believe it was the result of medical malpractice. There are extended deadlines on personal injury claims for children. However, the length of the extension is dependent upon whether the medical provider(s) was a private doctor, a qualified healthcare provider (CHP), a free clinic or a governmental facility.

More importantly, the extension of deadlines for the child’s claims do not apply to the personal injury claims of the parents who are bound by the standard guidelines applying to medical malpractice claims.   Even these will vary again depending upon the nature of the medical provider; private, CHP, governmental or free.

Recoverable Damages in a Cerebral Palsy Birth Injury Lawsuit

The damages to a child and the family in a cerebral palsy birth injury case are almost incalculable.  It is hard to quantify the harm to a child and the family of a lifetime of physical and mental disability.  It is harder still to reduce to numbers the lifetime of emotional and financial stress on the family that these cases will cause.

In a recoverable damages, how these cases result in what some might view as rather staggering settlements and verdicts.

When viewing the actual harm and financial costs associated with cerebral palsy birth injury cases, it is clear that these cases if anything are often under-compensated leaving the costs to taxpayers through Medicaid and Medicare.

Each element of harm along with the resulting recoverable damages of cerebral palsy medical malpractice cases merits a discussion of its own.  To get started, here is an abbreviated list of the possible damages taken from the New Mexico Uniform Jury Instructions.  These recoverable damages should be considered in pursuing a cerebral palsy birth injury case against a doctor, hospital or other medical provider.

Medical expenses which include past and future expenses can easily exceed $10 million over a lifetime of care in very serious cases.

Lost wages over a lifetime can also run into the millions.  This is a very difficult and contentious issue since the injured child will obviously have no earnings history and it is hard to predict a healthy child’s earnings potential over a lifetime of work.

Non-medical expenses can be huge over a lifetime for a host of expenses such as in home care, counseling, occupational therapy, alterations to the home, special vehicles, equipment and so on.

These cases also involved permanent and irreparable damages which fall under the New Mexico Jury Instruction 13.806 which allows for damages based upon the “nature, extend and duration” of the injuries.  Additional damages may be awarded for disfigurement under this jury instruction.

Pain and suffering damages are recoverable for these cases.  The lifetime of pain and suffering to an injured child and family resulting from these types of cases defies calculation.  However, it must be done and it is then left to the jury to decide.

Loss of consortium damages are available to the parents for the loss of society and companionship between the parent and child.  Again, this is a very difficult calculation since the relationship between a parent and child is priceless.

Punitive damages may be awarded in rare cases of where the actions of the medical providers were “malicious, willful, reckless or wanton.”  Most of these cases involve simple medical negligence which would not result in punitive damages.  However, there will be cases where the actions or inactions of the medical providers is so outrageous that punitive damages are merited

Case Evaluation and Medical Document Review in Cerebral Palsy Birth Injury Cases

Like all medical malpractice claims, a careful review of the medical records is required to determine whether medical negligence is the cause of a cerebral palsy birth injury. Again as with other cerebral palsy birth injuries claims can be quite challenging.

Birth Injury Case Evaluation Can Take a Long Time

With many cases of medical malpractice, the discovery and evaluation process can be extensive taking a very long time. The evaluation of a cerebral palsy will often move more quickly than many determinations of medical negligence.

The chief cause of cerebral palsy birth injuries is oxygen deprivation. Oxygen deprivation may result from a number of causes unrelated to medical negligence. However, oxygen deprivation during the birthing process is generally avoidable. There are clear standards of care associated with avoiding oxygen deprivation during the birthing process.

To facilitate the evaluation of a cerebral palsy birth injury case, it is important to obtain as quickly as possible a number of medical records. First, and foremost, the hospital records from the time the mother is admitted to the hospital to the time that both the mother and the baby have been released. In particular, an evaluation will be looking at the labor process with careful attention to the fetal monitoring during that process to determine the stress levels of the baby during labor and delivery.

Helpful to Have All Medical Records and History

These records will be very helpful in the evaluation of medical negligence. However, other causes must be ruled out as well. In addition, there may be post birth medical practices that contribute to or worsen the cerebral palsy of the child. As such, it would be very helpful for a case evaluation to have the mother’s medical history, prenatal care records, and all medical and hospital records related to the pregnancy. It will also be necessary to view all of the baby’s medical records including the hospital stay, the NICU (neonatal intensive care unit) records, post hospital care, and all the baby’s follow up care records (well-care records).

Complete Medical Records from Outset Will Speed Evaluation Process

The more information and medical documentation that can be provided to the attorney up front, the sooner the case can be evaluated. There are several important deadlines on medical malpractice claims that must be met. Missing a deadline can bar the claim completely. So it is important to provide these records to an experienced personal injury attorney as quickly as possible to avoid missing a critical deadline.

Placental Cerebral Infarction – A Serious and Sometimes Avoidable Birth Injury

Few experiences in life are more emotional than the birth of a baby. We all hope that our children come into this world happy and healthy. Unfortunately there are many different conditions that can impact your baby‘s development both during your pregnancy as well as during the labor and delivery process.

One very serious condition is called Placental Cerebral Infarction or PCI. Placental Cerebral Infarction affects the blood flow going to the fetus from the placenta. PCI is a form of cerebral hypoxia or a decrease of blood flow and oxygen to the baby‘s brain.

There are a number of developmental causes for PCI including:

  1. Maternal diabetes.
  2. Preclampsia, which is high blood pressure in the mother during pregnancy.
  3. Fetal anemia.
  4. Lung malformation.
  5. Cardiac disease.
  6. Congenital fetal infections.
  7. Blood flow problems to the placenta

Placental Cerebral Infarction can also occur if the doctor must perform an operative procedure during pregnancy or a Caesarean section. These types of procedures can cause the placenta to bleed or even rupture which affects the supply of oxygen to the baby‘s brain. If this occurs the doctor must respond to the situation quickly so that no harm results to the baby. However, if the doctor fails to respond promptly, and the baby‘s brain is without adequate oxygen for too long, serious birth injuries can result.

The types and seriousness of the injuries caused by cerebral hypoxia are largely dependent upon which portion(s) of the brain are denied adequate oxygen, as well as the severity of the hypoxia. In cases where the lack of oxygen to the brain is mild, the brain injury, if any, will be less serious. Such injuries can include short-term memory loss and/or difficulty mastering complicated tasks. In the most severe cases of cerebral hypoxia, coma and brain death can result.

In serious cases of PCI, another common result is cerebral palsy birth injury. Cerebral palsy can lead to brain damage of varying degrees causing moderate to sever learning disabilities, mental retardation, seizure disorders impaired mobility and other injuries.

In situations where it appears that PCI was caused by medical negligence you may be entitled to file a medical malpractice claim to recover for damages to your child, including medical expenses (past and future), lost earnings (over a lifetime), and pain and suffering.

If you suspect that medical negligence is the cause of your child‘s PCI, it is very important that you contact an strict and unique deadlines associated with New Mexico medical malpractice claims. Failure to file your claim within these time frames will result in your inability to bring the claim at all.

High Burden of Proof in New Mexico Birth Injury Lawsuits

Injuries sustained by an infant during the labor and delivery process can lead to a lifetime of special needs and care. The services and supplies needed to bring some sort of normalcy to the injured child can quickly deplete even the most financially stable of families.

Compensation for birth injury lawsuit

In attempting to obtain a legal remedy for a birth injury related to medical malpractice, it is the duty of the plaintiff, the one bringing the suit, to prove the injury resulted when the medical professional breached their responsibility to provide reasonable medical care. This seems like a fairly strait forward statement on the surface; yet, differing interpretations of the terms “duty,” “breach” and “reasonable” can complicate proving one‘s claim.

Defining the standard of care can also present a major obstacle for the plaintiff. The standard of care can differ from medical facility to medical facility, as well as from physician to physician when faced with the same medical event. The standard of care usually must be explained by an expert witness, who describes their opinion regarding the proper response to or method used during the injuring event in question. Both the plaintiff and the defendant are allowed to introduce experts, and these experts can and often do present contradictory positions regarding the proper standard of care, particularly in situations involving a judgment call.

Causation is another factor that can diminish the plaintiff‘s case, as the defense may allege other possible reasons for the birth injury, like fetal developmental issues, maternal complications or genetic defects. The presence of any of these potential causes may limit or negate the responsibility of the medical professional in the eyes of a judge or jury even where there was medical negligence.

Defense counsel may also rely on how foreseeable a birth injury may or may not have been, given all the data and diagnostics a reasonable physician has at the time of delivery. If risk factors for certain birth injuries are not known beforehand, a medical provider may be able to successfully argue that he was not able to foresee the possibility of birth injury and thus, he did not breach his duty to provide reasonable medical care.

There may be many other defenses that can be alleged to challenge a medical malpractice claim involving birth injuries. Due to the huge level of damages in many birth injury cases, these cases are fought very hard by medical professionals and facilities. The costs and stress of a suit can be significant on the family. It is therefore important that the case be properly evaluated from the outset by an experienced personal injury attorney.

Statute of Limitations on Personal Injury Cases Involving Children

The New Mexico personal injury cases involving children is quite a bit different than for adults.  They also differ depending upon the nature of the defendant and the nature of the case.

The rules can be pretty confusing, so if you are unclear on the statute of limitations for your child’s personal injury case it is extremely important to seek the guidance of an attorney.  Missing the statute of limitations will bar your child’s claim completely.

General Rule for Personal Injury Cases Against Private Individuals or Private Entities

The standard statute of limitations for personal injury claims against private individuals or private entities is 3 years.  For children, the statute of limitations is extended to varying degrees depending upon the nature of the defendant.

For most private defendants, the statute of limitations runs when the child turns 19.  There are much shorter deadlines in medical malpractice cases involving qualified healthcare providers which will be discussed below.

In most personal injury cases against private defendants, under New Mexico law (NM Stat §31-1-10), a child has until his or her 19th birthday to file a personal injury lawsuit.  Presumably, this extension of the deadline is to allow a child to file on his or her own in the event that a parent fails to do so.

Of course, it is highly advisable to file much sooner so if the parent will not file for whatever reason, the child can seek the appointment of a guardian ad litem for the purposes of initiating the lawsuit if the child cannot obtain legal representation on his or her own.

Claims Against the Government

As is always the case, the statute of limitations is shortened in cases involving governmental defendants.  This would include any government-operated entity, facility, hospital and so on.  It would also include suits against governmental employees.

Typically, the statute of limitations on suits against the government is 2 years.  The statute is extended for cases involving children.  However, it is not extended to the same degree as in cases involving private defendants as discussed above.

In personal injury cases involving child victims against governmental entities, the statute of limitations is extended to the child’s 9th birthday by NM Statute 41-4-15(A) which reads:

“Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death, except that a minor under the full age of seven years shall have until his ninth birthday in which to file. This subsection applies to all persons regardless of minority or other legal disability.”

The statute is somewhat confusing. Specifically, it applies to children and other legal disabilities.  Moreover, a child of 7 is facing the same 2-year statute of limitations as an adult.

This provides some relief but seems completely arbitrary with no real protection for the child but is instead simply a tool to shield the government from suits.  There is a New Mexico Court of Appeals case from 2007 (Jaramillo v. Heaton) that found this limitation to violate a minor’s due process rights.  However, this case should be relied upon only as a last recourse in the event that you have missed the deadline set forth in the Act. It is far better to get the suit filed before the 9th birthday so you are not faced with challenging the constitutionality of the Act.

Medical Malpractice Claims Have Special Rules

The statute of limitation in medical malpractice cases depends upon whether the defendant is a governmental provider, a qualified healthcare provider or medical provider that falls in neither of these categories.

In medical malpractice cases against the government, the rules above apply.  The rules involving qualified healthcare providers are similar to the rules in cases against the government.

In cases involving qualified healthcare providers, the child has until his or her 9th birthday under the New Mexico Medical Malpractice Act at NM Stat § 41-5-13.  The language is very similar to the language in the Tort Claims Act for suits against the government.  The language in relevant part states:  “a minor under the full age of six years shall have until his ninth birthday in which to file”.

As you can see, like the rules in government claims, a 6-year-old child will be held to the 3-year statute of limitations like any adult, again, with the deadline being the child’s 9th birthday.

And again, this rule makes absolutely no sense for the protection of children.  It is simply a way to shield doctors from responsibility for their negligence.  After all, can a 9-year-old child really be expected to understand the statute of limitations and file the lawsuit on time?  Under the Medical Malpractice Act, apparently this is the expectation.

Cerebral Palsy Birth Injuries

Cerebral palsy can be caused by a number of factors.    Typically, the causes relate to oxygen deprivation.  These include umbilical cord problems, cardiac complications, oxygen deficient blood flow, acute maternal hypotension, placental deficiencies and numerous other problems affecting blood oxygen levels.  Medical negligence is only one of the possible causes.

Estimates Vary Widely on Medical Malpractice as a Cause of Cerebral Palsy

Depending upon who you ask, it is estimated that anywhere from 4% to 25% of cerebral palsy cases are caused by medical malpractice.  The low end comes from studies conducted in the United States in what some would say is an effort to protect doctors from liability.  Just as the low end is understated, the higher end is probably overstated.

Expert Legal and/or Medical Review is Essential

Each case requires careful analysis of the medical records to determine if medical malpractice was the cause of the newborn’s cerebral palsy.  In order to effectively evaluate a claim, it is necessary to obtain an expert medical review of the prenatal, hospital and birth records.

Oxygen Deprivation is Leading Cause of CP in Medical Negligence Cases

Oxygen deprivation during birth (Intrapartum Asphyxia) is a leading cause of cerebral palsy.   Interestingly, it is most common in full term pregnancies.  As such, it is very important to examine the fetal monitoring strips and the APGAR to determine if the baby was deprived of oxygen during the birthing process.

CP May Result from Birth and Postpartum Medical Errors

Typically, cerebral palsy resulting from medical negligence will occur during the birthing process.  However, it can be caused by postpartum events as well.  As such, it is necessary to review the baby’s hospital records and NICU (neonatal intensive care unit) records as well.

A careful review of these records should indicate whether a medical malpractice claim is suggested.  Again, there are many causes of cerebral palsy.  Medical negligence is not always the root cause.  The numbers suggest that at most 25% of cases are the result of medical malpractice.

Strict Deadlines on Medical Malpractice Claims

There are strict deadlines associated with personal injury claims with especially short deadlines on claims against the government which will apply in cerebral palsy cases involving public (local, county, state) hospitals or clinics.

Common Forms of Birth Injuries

Good prenatal medical care is one way to help insure a healthy infant.  Yet, even the most diligent and cautious parents may face the possibility of complications during delivery.  In the U.S., there is an average of 6-8 birth injuries per 1,000 live births each year. The most frequent forms of birth injuries to infants involve the brain, the nerves and the bones.

Brain injury during birth typically comes from perinatal asphyxia, or a loss of oxygen.  Some of the causes for this type of injury include compression of the umbilical cord, extreme meconium aspiration, narcotics administered during labor and birth trauma.  Perinatal asphyxia can lead to intellectual impairments, seizures, speech and language issues, behavior disorders and movement disorders, like cerebral palsy.  While a child can learn to compensate for impairments, the damage is usually permanent.

Intracranial hemorrhage, or bleeding in or around the brain, is another way the brain can be damaged.  Ruptured blood vessels create swelling that can kill brain tissue by disrupting blood supply.  Intracranial hemorrhage can happen in the event of a prolonged delivery, an instrumental assisted delivery (forceps or an extraction device), and a breech delivery.  It can cause many of the same long-term issues found with perinatal asphyxia, but may also include vision impairment and infantile esotropia, or a crossing of the eyes.  As in perinatal asphyxia, a child can learn to cope with the issues that result from an intracranial hemorrhage, yet the damage is most likely permanent.

An infant’s nervous system is another area commonly affected by birth injury.  Facial nerve damage resulting in paralysis is the most common and typically comes from pressure on the nerve while in utero.  However, damage can also occur during a prolonged pregnancy, a forceps delivery, or when epidural anesthesia or oxytocin is used during labor.  Damage is usually evident when an infant cries and only one side of the face is engaged.  It can also affect the eyelids and lips.  This damage can be temporary or permanent.

The brachial plexus can be injured during delivery as well.  This is a network of nerves that sends messages from the spine to the arm, as well as the shoulder and hand.  Damage can result from the stretching that occurs to the infant’s shoulder during the birth process.  If paralysis is found in the upper area of the shoulder and elbow, it is known as Erb-Duchenne palsy.

If paralysis occurs in the lower area of forearm and hand, it is called Dejerine-Klumpke palsy.  Consequences of this damage may include a limp or paralyzed arm, a lack of sensation in the arm or hand, or a lack of muscle control in the arm or hand.  Like facial nerve damage, brachial plexus damage can also be temporary or permanent.

As for an infant’s bones, factures can occur during delivery and can lead to additional birth injuries already discussed.  Depressed skull fractures can result from the use of equipment, like forceps, and can cause additional complications like intracranial hemorrhage.  Fractures of the clavicle or humerus due to difficult deliveries can lead to brachial plexus conditions.  Other bone fractures normally heal quickly and without added complications.

Statistics suggest that close to 30,000 babies suffer birth injuries each year in the United States.   In most of these cases, the injuries are minor and the baby fully recovers.  However, in far too many cases, babies suffered serious injury or death.

Birth injuries are preventable in many cases.  Many cases of birth injury involve medical negligence or medical malpractice.   The most common causes of birth injuries include inadequate prenatal care, undiagnosed prenatal complications, Ob/Gyn errors, negligent delivery, and obstetrical errors.

Proof of Medical Malpractice is Difficult

Where medical negligence or medical malpractice caused the birth injury, the doctor or medical provider is liable for the damages caused by the negligence.  Like all medical malpractice claims, the medical provider or doctor’s care must have fallen below the standard of care in the medical profession.

Again, like most medical malpractice claims, birth injury cases can be difficult to prove.  These cases require the assistance of medical experts that can clearly establish that the doctor’s medical care did indeed fall below the standard of care customary in the profession.  The medical provider will argue that the birth injury was unavoidable and that nothing could have been done differently to prevent the injuries.  It will up to your medical expert to prove otherwise to a jury.

Injuries and Damages Often Enormous

Birth injuries are devastating to the baby, new parents and the family.  The injuries are often permanent causing life-long suffering for the parents and the child.  In the case of permanent injuries or the death of a newborn child, the harm to the child, parents and family are unimaginable and hard to quantify.  Unfortunately, that is what must be done.  The injuries and damages to the child, the parents, and the family must be quantified, and the negligent medical professionals and medical facility must be held responsible.

Like all personal injury cases, the injured parties are entitled to damages.  These include compensatory, loss of consortium, future medical costs, and loss of income both for the parents and for the child.  It may seem odd to suggest lost earnings for a baby, but in case of palsy or brain damage, the lost wages over a lifetime of lost earnings can be enormous.

Injuries and Damages Must be Quantified Which is a Complex and Difficult Task

Though it is hard to put a dollar figure on such an incomprehensible injury, it must be done.  The process can be long and emotionally draining, but it is the only way to hold the negligent medical provider, doctor or medical facility responsible for the harm they have caused to you, your child and your family.

To quantify them, it is necessary to get an array of experts including medical experts, mental health experts and economists to name just a few.  Others are often required depending upon the situation.

Oxygen Deprivation at Birth: Cooling Blankets Becoming Standard Treatment

Oxygen deprivation during the birth process can result in serious injuries to the newborn. Studies have found that oxygen deprivation can result in death rates as high as 60%, and of those newborns that survive many sustain brain damage that often results in cerebral palsy, cognitive impairments or hearing and vision loss.

While many newborns that suffer from insufficient oxygen during birth may not experience detectable brain damage they remain at a higher risk for learning disabilities, language delays and memory deficit.

Fortunately, The National Institute of Child Health and Human Development Neonatal Research Network has discovered a method that has been shown to reduce the rate of death and disability caused by insufficient oxygen and decreased blood flow to the newborn‘s brain at birth. This new procedure involves reducing the “whole body temperature” of newborns with brain injuries during the hours immediately after birth.

To do this, specially designed cooling blankets are used to lower the whole body temperature of the newborns to 92.3 degrees Fahrenheit for 72 hours immediately after birth. By providing this whole-body cooling immediately after birth the effects of oxygen deprivation and lack of blood flow are slowed down. This reduces the detrimental effects that usually result from oxygen deprivation. Initial studies found that this cooling process significantly lowered the risk of death and disability by more than 15 percent.

Researchers have learned that brain injuries resulting from insufficient oxygen and blood flow during birth generally occur in two phases. The first phase happens during the birth process when the baby is deprived of sufficient oxygen due to inadequate blood flow supplying oxygen to the baby‘s brain. The second phase happens in the hours just following birth and is due to a secondary energy failure. When the brain and body are cooled, less energy is needed for the brain to function and this minimizes the brain injury.

In order for this to be effective the cooling blanket must be used within the first six hours after birth. The cooling blankets induce hypothermia and minimize the damage. In some cases this prevents the baby from experiencing the second phase of brain injury. It is hoped that this new treatment will significantly decrease the damages caused by oxygen deprivation.

Inducing whole body hyperthermia is now becoming the standardized treatment for oxygen deprivation in brain injured newborns. Neonatal departments around the world are adopting this cooling technique to reduce the risk of death and disability among infants showing signs of brain injury indicating oxygen deficiency.

Researcher have also noted that this hypothermia therapy is useful for treating adult patients who experience oxygen deprivation and is being used to treat adults that have suffered from of heart attacks, strokes, spinal cord injuries and other forms of trauma that cause injury to the brain due to oxygen deprivation.

experienced personal injury attorney to determine if you have a possible medical malpractice claim.

Elevated Body Temperatures Associated with Epidurals Can Lead to Birth Injuries

Approximately 4 million women give birth in the U.S. each year, and more than 60% of them receive epidural anesthesia during labor. Epidural anesthesia is a process where pain management medication is injected near the nerves in the mother‘s lower back. And, while this process may ease pain and discomfort for the mother, it can in some circumstances create a greater risk of injury to the baby.

Epidural anesthesia has been found to increase a mother‘s temperature. While the link between epidural anesthesia and fevers is not well understood, one belief is that an inflammation response is triggered, generally in the fetal membranes and placenta. Other studies suggest that epidural anesthesia may decrease the mother‘s ability to dissipate heat at a time when she is expending energy due to the labor process.

Dr. Scott Segal at Tufts Medical Center in Boston, a teaching hospital, explains that this rise in temperature is not seen with other types of pain control or drug-free labor. Nor is there an effective, safe method for preventing maternal fever from epidural. He also cites that maternal fever in general is known to complicate up to 1/3 of all deliveries.

According to a recent study published in Pediatrics, a possible link has been found between birth injuries and women with elevated temperatures who received epidural anesthesia. The study suggests the higher the mother‘s temperature, the greater the likelihood the infant would experience problems at birth. These problems included breathing difficulties, poor muscle tone and even seizures.

The study documented that 19.2% of the women who received an epidural developed temperatures above 100.4 degrees. If the fever was over 101 degrees, the infant had a 2-6 fold increase in the risk for problems. Interestingly, the study revealed there was no difference in an infant‘s outcome for women who did not develop a fever after epidural injection versus those who did not have an epidural at all.

Many infants who experienced problems after a delivery involving a maternal fever overcame the issues associated shortly after birth; however, others did not. Maternal fever has been linked to infant brain injury resulting in cerebral palsy, muscle atrophy and learning disabilities.

And, while other factors could be at work, namely, intrauterine infections, maternal fever is certainly a risk factor that should be discussed with one‘s physician before delivery. Even if a mother has no plans to rely on epidural anesthesia, plans can change once labor sets in. It is best to know the risks ahead of time without the added pressure of making decisions while in the grips of a painful contraction.

These are all issues that should be discussed between an expecting mother and her physician. Only through understanding can a patient make informed decisions in the midst of delivery.

Court Protections for Minors in New Mexico Personal Injury Settlements

If a minor is injured in an automobile accident or other incident that gives rise to another person‘s liability, and a claim is brought before the child reaches age 18, the insurance company paying the settlement generally wants a judge to approve the settlement terms. The request is intended to protect the minor, but it also provides protection to the insurer.

The reason that the insurer is protected is because the minor has until one year past his 18th birthday to bring a lawsuit, assuming the statute of limitations period ran when he was a minor. If the minor‘s parents bring an action while he is a minor, and the court approves the settlement, the minor will have difficulty bringing an action himself after he is 18, because a court has already entered an order that states that the settlement amount is fair.

To obtain court approval, the insurance company, after reaching a settlement agreement with the minors‘ parents or the minor‘s attorney, will hire an attorney to seek approval. This involves filing a lawsuit with pleadings that are either a Petition for approval or an actual Complaint for Damages. The pleadings are agreed upon by the parties involved and are not of the usual adversarial nature of a lawsuit. There are many terms for the minor settlement proceedings depending upon the location of the action including “minor settlement”, “infant compromise” or “friendly settlement.”

The pleadings filed to initiate the lawsuit briefly set forth the facts of the accident, the parties involved and the amount of the settlement. A hearing is requested so that the attorneys may present the facts to the judge so that the judge can determine if the settlement is in the minor‘s best interest. In addition to the pleadings that petition the court for approval, generally the attorney for the insurer asks for the appointment of a guardian ad litem for the child.

The guardian ad litem (GAL) is an attorney who is retained to review the settlement and to advise the court of the settlement facts which include the minor‘s injuries, treatment, medical bill amount, whether further treatment is needed and, of special importance, where the money is to be placed until the minor reaches age 18 at which time the minor is legally entitled to receive the funds.

Obviously the judge wants to make sure that the money paid to the parents on behalf of the injured child is held for the child until he reaches age 18. The judge wants to know that if the money is invested, it is done so safely. Consequently, judges generally don‘t want the money invested in the stock market. They prefer safe, conservative investments such as certificates of deposit or annuities, both of which guarantee a return. Unfortunately, conservative investments with guaranteed returns do not offer a great deal of growth.

Sometimes, if there is a particular need that the minor presently has, such as a computer for school, and the judge believes it is in the minor‘s best interest, the judge may allow use of a certain amount of the settlement funds immediately. However, the judge will want to make sure that the purchase or use of the funds solely benefits the minor, and is not a purchase for the rest of the family to enjoy. The judge will not allow use of the funds by the parents to satisfy any of the obligations they have as parents to provide care and support for the child such as food, shelter, clothing and basic necessities.

In short, the Courts are very protective of children in personal injury settlements. To insure the protection of the child, if the attorneys do not agree to and appoint a GAL for the child, the Court will make the decision for them appointing an experienced Guardian Ad Litem.

Cerebral Palsy Risk Factors and the Duty of Care of Medical Providers

There are numerous well-established and widely known risk factors for cerebral palsy in newborns.  It is important to understand a few things about these.  First, any that are not readily apparent to the medical providers should be reported.  Second, failure to properly monitor the baby when these risks factors are present may constitute cerebral palsy birth injury is the outcome.

In cases where there were clear risks factors in advance of delivery, and cerebral palsy occurred, it may merit the review of the case by an experienced medical malpractice attorney.  Collins & Collins, P.C. can be reached at (505) 242-5958.

Cerebral Palsy is Often Beyond the Control of Medical Providers but Patients Have a Right to Know Whether Their Child’s CP Could Have Been Avoided

It should be noted that cerebral palsy birth injuries are more often than not beyond the control of medical providers.  In those cases, there would be no claim for medical malpractice.

On the other hand, most parents do not have the knowledge to determine this for themselves.  In fact, most attorneys can only take an educated guess.  Instead, the medical records must be reviewed by a medical expert to determine if medical negligence occurred and if the negligence was the cause of the cerebral palsy.  Both negligence and causation are required.

To begin the process of understanding what happened and whether it was avoidable, most patients must begin with an attorney due to the high costs of an expert medical review of the file.  The attorney will review it and then if it looks like something is there, send it on to an expert for a much more thorough and professional medical review.

Risks Factors for Cerebral Palsy

The Centers for Disease Control (CDC) has identified numerous risks factors for cerebral palsy.  They are by no means all related to medical negligence.  On the other hand, the existence of the risk factors suggest a heightened duty of care on the part of the medical providers involved in the pregnancy, labor and delivery.

Heightened Duty When Risk Factors are Present

One thing that should be apparent from the list above is that many of the risk factors are not entirely within the control of the medical provider.  However, when those risk factors are present, there is a higher duty of care to monitor the risks factors, the pregnancy and the birth so that every precaution is taken to protect the baby from unnecessary injuries.

Again, most cerebral palsy is not the result of medical malpractice, but it in light of the devastating consequences to the child and family, it makes sense to investigate the causes of cerebral palsy in your own child.

Retinopathy of Prematurity

For parents who have experienced a premature birth, it is very important to understand the risks of retinopathy of prematurity in preterm births.  The bottom line is that is a very strong and established relationship between the two.  Parents in this situation should keep a very close eye on the child’s development progress with vision and make sure that their pediatrician is doing the same.

For parents with children suffering retinopathy of prematurity, it is important to know that retinopathy of prematurity is preventable and therefore when it does happen, medical malpractice may be to blame.  It is equally important to understand the rules, laws and personal injury claims on behalf of children generally.

Retinopathy of Prematurity Defined

The American Academy of Pediatrics provides a description of retinopathy of prematurity (ROP) as a “disorder of the developing retina of low birth weight preterm infants that potentially leads to blindness in a small but significant percentage of those infants.”

Premature Births Growing

The CDC estimates that there are 500,000 premature births each year in the United States.  That represents 1 of every 8 births.

Preterm birth is the leading cause of death in infants.  It is also the leading cause of lasting disabilities such as retinopathy of prematurity (ROP).  Unfortunately, there is an increasing upward trend toward with premature births and the consequent harm such as ROP.

The CDC reported an 1/3 increase from 1980 to 2006.

Blindness Associated with Retinopathy of Prematurity is Avoidable

It has been clearly established that there are medical precautions that can be undertaken to avoid ROP associated blindness in many cases.  However, medical providers must be aware of the risks, symptoms, monitoring, and treatment guidelines to avoid permanent vision impairment.

The fact is that the ROP associated blindness is avoidable in a significant percent of cases.  This strongly suggests the need for heightened medical diligence in guarding against ROP in preterm births.

Medical Negligence and Retinopathy of Prematurity

There are many cases of blindness or severe vision impairment that will not be avoided even where the medical standard of care in screening and treatment are met. However, a large percentage of ROP cases can be treated to avoid partial or total blindness.

In fact, the medical malpractice insurance industry has recognized that there are many preventable factors that can be utilized to improve the treatment and care of ROP.  The most obvious recommendation is that all relevant medical professionals such as ophthalmologists, neonatologists, and pediatricians are aware of ROP screening and treatment guidelines.

These recommendations are made for these professionals to avoid medical malpractice claims associated with ROP.  On the flip side, the recommendations suggest that it is the case that failure to meet these well-established guidelines will give rise to medical malpractice claims against the offending medical providers.

Bringing a Claim for ROP Associated Medical Malpractice

There are very important deadlines in New Mexico medical malpractice cases.  The most important are the Tort Claims Notice Requirements and the statue of limitations.

Because ROP strikes children, the deadlines are a little bit more confusing but no less enforceable on medical malpractice claims on behalf of the child.

The deadlines on New Mexico medical malpractice claims are rigid and harsh.  Missing an applicable deadline will bar the claim completely.

Seek Legal Guidance

If your child has suffered partial or total blindness associated with ROP, it is extremely important to contact an attorney for an evaluation of your child’s medical malpractice claim immediately upon suspicion of medical negligence.  As unfair as it is, missing a deadline even in the case of a child will bar any recovery for your child’s injuries

Shoulder Dystocia Can Cause Serious Birth Injuries to Newborns

Shoulder dystocia refers to the condition that occurs when a baby‘s head is delivered but the shoulders get stuck inside the mother‘s body. The word “dystocia” actually means slow or difficult labor or delivery. In most cases, once the baby‘s head is delivered the rest of the baby‘s body follows easily.

In some instances where the baby‘s shoulders and chest are larger than the baby‘s head, the shoulder may become lodged behind the mother‘s pelvic bone. It is estimated that shoulder dystocia occurs in anywhere from 1 to 8 out of every 1000 births.

In most cases where shoulder dystocia is handled appropriately by the healthcare providers the baby and the mother do not sustain any permanent birth injuries. However, if the healthcare providers responsible for the labor and delivery of the baby do not react quickly and appropriately shoulder dystocia can lead to serious and permanent injury to the baby.

These injuries include 1) damage to the sensitive nerves in the baby‘s neck, commonly referred to as a brachial plexus injury, 2) low oxygen levels leading to brain damage and cerebral palsy, and 3) bone fractures caused by the force used to dislodge the shoulder.

While there are risk factors for shoulder dystocia, healthcare providers generally cannot predict or prevent shoulder dystocia from happening.

Some risk factors include the following:

  1. A very large baby.
  2. A mother with diabetes.
  3. Being pregnant with more than one baby.
  4. Obesity in the mother.
  5. Delivery of the baby after the baby‘s due date.
  6. A previous history of delivering a baby with shoulder dystocia.

Yet it should be remembered that shoulder dystocia can occur when there are no risk factors at all.


Doctors can take steps to prevent injuries caused by shoulder dystocia. This often includes repositioning the mother and/or the baby during delivery to allow the baby to pass while using gentle pushing and pulling techniques. More serious procedures may include breaking the mother‘s pelvic bone or the baby‘s collar bone or performing an emergency cesarean section.

Medical Negligence

If the doctors and/or nurses responsible for the delivery of the baby fail to recognize signs of shoulder dystocia or fail to respond in an appropriate manner they may constitute medical negligence. When the healthcare providers are found to be negligent they can be held responsible for any injuries caused to the baby as a result of their unreasonable conduct.

Medical malpractice claims are quite complex. It is to contact an experienced personal injury attorney to conduct a careful review of the medical records and determine whether the baby‘s injuries were caused by the negligence of the medical providers.

There are numerous unique deadlines and other requirements that must be considered. So it important to make these determinations as soon as possible if you suspect medical negligence. Delay can result in a missed deadline which may bar your claim completely

Left Untreated, Severe Jaundice Can Be Very Harmful to Newborns

Hyberbilirubinemia, commonly called jaundice, is a condition that occurs when there is too much Bilirubin in the blood. It is not uncommon in newborns. Typically, it will cause no lasting harm to a child. However, it can in rare situations be very harmful to a newborn.

Jaundice causes a newborn‘s skin and the whites of their eyes to look yellow. As mentioned, Jaundice is usually not a serious problem, but in some cases too much Bilirubin in the blood can cause cerebral palsy, brain damage, hearing loss, mental disability and behavior problems among other injuries.

Bilirubin is made when your body breaks down old red blood cells. Normally Bilirubin is removed from the body through the urine and stool. When you are pregnant your body removes Bilirubin from your baby through the placenta. However, after birth the baby‘s body must get rid of the Bilirubin on its own. Jaundice occurs when your baby‘s body has more Bilirubin than it can get rid of.

Your baby‘s doctor can diagnose jaundice by doing a physical exam and getting a complete medical history about your baby. The medical history will include such things as whether your baby was born full-term, your baby‘s eating and elimination habits, and whether your baby has gained or lost weight since birth. Tests may be done if your doctor thinks that a health problem is causing too much Bilirubin in your baby‘s blood. A blood test for Bilirubin may also be necessary to determine if your baby needs treatment.

In most cases, no treatment is needed for jaundice and it will usually go away on its own. However, more serious cases must be treated medically in a timely manner. Left untreated in these cases, jaundice can cause very serious harm to a baby. As such, it is extremely important to immediately report any symptoms to your medical providers.

When jaundice is left untreated, it can lead to a specific kind of brain damage known as Kernicterus. Kernicterus can lead to permanent conditions like cerebral palsy, which is a chronic and permanent condition that affects a child‘s development and motor skills. A child with irreversible brain damage or cerebral palsy faces a lifetime of physical challenges.

It is very important that your baby‘s doctor monitor your baby for signs and symptoms of jaundice. If your doctor fails to recognize the symptoms of jaundice and/or fails to provide proper treatment, your baby could suffer serious and irreparable injuries. If your baby is harmed as a result of a failure to diagnose and treat jaundice, you may have a claim against the doctor, medical provider, or facility for medical malpractice.

unique deadlines associated with medical malpractice claims in New Mexico.

As such, you should contact an experienced medical malpractice attorney as soon as fully protect your rights and the rights of your baby. Delay could in some cases be very harmful to your claims and as a general rule is never a advisable.

Cesarean Sections: An Essential Tool in Prevention of Cerebral Palsy

The twentieth century saw a 99% reduction in the risk of death associated with pregnancy, One technology that played a major role in this reduction is the appropriate use of the cesarean section when the unborn baby shows signs of fetal distress.

The medical team taking care of the mother and baby are responsible for monitoring the progress of the labor and delivery for signs of fetal distress, and when appropriate, performing a cesarean section.

Many things can happen during birth that cause fetal distress and the need for a cesarean section. A few include: an infant that is too large to pass through the birth canal; labor not progressing because the cervix has stopped dilating; and/or the infant is in a breech position, with its feet coming out first instead of the head.

Monitoring of the fetal heart rate is one of the important ways that the medical team monitors the baby during labor and delivery. Changes in the fetal heart rate are an indicator of fetal distress and that the infant is not getting sufficient oxygen. This is referred to fetal hypoxia. When this situation arises, a decision to perform a cesarean section may be critical to the health of the infant. An infant suffering from hypoxia during delivery can develop cerebral palsy.

Cerebral palsy is a crippling condition that affects the brain and central nervous system. The symptoms of cerebral palsy can be mild in some cases. In severe cases, cerebral palsy can cause uncontrollable reflex movements, intellectual disabilities, seizures, vision and hearing problems and other very serious physical injuries and permanent disabilities.

Cerebral palsy is one of the most common causes of permanent disability in children. However, not all children with cerebral palsy will suffer from the same problems. Some will have more severe problems while others may only experience mild difficulties.

The National Institute of Health recently published a statement concluding that the appropriate use of cesarean section when there are signs of fetal distress has reduced the number of cases of cerebral palsy even though the overall rate of cerebral palsy has not decreased. The NIH explains this anomaly by pointing out that cesarean sections have also increased the overall survival rate of newborns.

The healthcare providers caring for the mother and infant during the labor and delivery process owe the mother and the baby a legal duty of care. If the healthcare providers do not respond to an emergency situation, such a fetal distress/fetal hypoxia, in accordance with the accepted standard of care, the healthcare provider has violated this duty of care.

When this happens and the mother or infant are injured the healthcare providers may be liable for recoverable damages associated which in the case of severe cerebral palsy can be extraordinary.

If you believe your child has suffered birth injuries as a result of the failure to provide a timely C-section, an experienced personal injury lawyer can review the circumstances of your case with you and ensure that your legal rights and the rights of your child are protecte

Brain Damage and Immediate Cord Clamping

In birth injury cases, a lack of oxygen is the most common cause of damage to an infant‘s brain. Oxygen deprivation can come in the form of asphyxia, a blockage to the airways, or hypoxia, a blockage of oxygen-rich blood to the brain. While a lack of oxygen can occur for many reasons, one cause may be due to a common medical practice: immediate cord clamping (ICC).

ICC generally occurs right after an infant‘s delivery. The umbilical cord that unites mother and child is clamped then cut, typically within 30 seconds after the baby has emerged. The process is thought to prevent hemorrhaging in the mother and allow the infant to be quickly transferred to a resuscitation station for further evaluation.

Recent studies suggest that clamping and/or cutting the cord too soon may lead to massive blood loss into the placenta. This reduces the nutrient-rich blood and oxygen supply a child needs when taking its first breaths.

Certain infants are more susceptible to problems from this decrease in oxygen and blood, leading to a possibility of brain hemorrhage or breathing difficulties. Both of these risks can result in brain damage and a wide range of long-term disabilities.

Some experts, including the World Health Organization, recommend that three minutes should pass before cutting the umbilical cord. This will allow blood from the placenta to flow to and nourish the newborn, while the baby establishes a proper breathing pattern and starts to depend on its own bodily systems. It is advised that all signs of pulsation within the cord should cease before the cord is clamped and cut.

Experts believe the amount of blood transferred through the cord may amount to 30-50% of an infant‘s eventual blood volume. Studies show that infants have a built-in reflex system that will shut off the flow of blood from the cord once they have received the optimal amount. And, this nutrient-rich blood could impact the health of the infant long past birth, reducing the chance of iron deficiency in children as old as 8 months.

Traditional treatment of an infant displaying a lack of oxygen has been to re-oxygenate their systems. Unfortunately, they may be in need of blood volume replacement instead, something that is typically not addressed. Interestingly, rates of oxygen deprivation are much lower in deliveries involving professional midwives. Often, midwives delay the cutting of the umbilical cord until delivery of the placenta.

Dr. George Morley, MB, ChB, FACOG, a board certified OB/GYN states emphatically that “Perinatal and neonatal care is less successful in saving brains than saving lives.” He also believes that the cause of oxygen deprivation in newborns has been misdiagnosed, leading to no real decline in cerebral palsy rates, despite intensive interventions.

While this is just one theory involving infant brain damage, expectant parent should discuss ICC with their medical providers. Many physicians may simply be following current trends in obstetric medicine by practicing ICC, without being fully aware of the possible risks this procedure may present.

The statute of limitations on New Mexico personal injury claims is rigid.  There are very few and extremely limited exceptions. The statute of limitations is no less rigid in cases filed on behalf of children.

The statute of limitations on personal injury claims, including medical malpractice claims, is 3 years on claims against private medical providers and 2 years on claims against governmental providers.

Missing these deadlines will bar the claim completely.  This is so in all personal injury claims, including those on behalf of children.  However, children do get some relief in the terms of when the statute of limitations will begin to run.  Unfortunately, depending on the type of medical provider, the relief can be grossly inadequate for the protection of an injured child.

Statute of Limitations Deadlines Extended for Retinopathy of Prematurity

As suggested, the statute of limitations is extended on personal injury claims filed on behalf of children.  This holds true for medical malpractice claims as well. By definition, retinopathy of prematurity strikes children.   As such, the statute of limitations is extended on medical malpractice claims related to retinopathy of prematurity (ROP).

The duration of the extension will depend on the type of medical provider.   The limitations will differ depending upon whether the medical provider is a private provider, a governmental provider, or a qualified healthcare provider.  We will address each in turn.

Medical Malpractice Claims Against Private Medical Providers

There are two types of private medical providers: qualified healthcare providers and non-qualified healthcare providers.  To be a qualified healthcare provider, the provider must simply comply with some fairly nominal insurance provisions under the New Mexico Medical Malpractice Act.

For those that do not opt into the insurance program and do not qualify for qualified healthcare provider status, the statute of limitations for medical malpractice claims made on behalf of children runs when the child turns 19.

This provides some protection for children who have suffered injuries from medical malpractice, including injuries associated with retinopathy of prematurity.  Some wrongly assume the statute of limitations is 3 years from the 18th birthday.

Though this would seem to make sense, it is absolutely not the case.  A misunderstanding of the law will not provide any relief.  Missing the statue of limitations will bar the claim.

Medical Malpractice Claims Against Governmental Medical Providers

As with all personal injury claims against governmental entities, there are unique statute of limitations rules for medical malpractice claims made on behalf of children.

Under the New Mexico Tort Claims Act, NMSA §41-4-15, the statute of limitations on claims against a governmental medical provider for a child under the age of 7 is extended until his or her 9th birthday to file a claim.

Essentially, the 2-year statute of limitations begins to run when the child turns 7.  This means the statute of limitations remains 2 years for children 7 or older.

This is ridiculous since a child cannot possibly bring a claim when they are 9, 10, 11…  They are completely reliant on their parents.

Medical Malpractice Claims Against Qualified Healthcare Providers

The New Mexico Tort Claims Act is intrinsically unfair to those harmed by governmental negligence, including medical malpractice on the part of governmental doctors or other medical providers.  The New Mexico Medical Malpractice Act is equally unfair in the case of the negligence of qualified healthcare providers.

There are many aspects of the New Mexico Medical Malpractice Act that are highly detrimental to the rights of injured patients.  We will discuss only the statute of limitations here.

The New Mexico Medical Malpractice Act, NMSA § 41-5-13, extends the statute of limitations for a child under the age of 6 to the child’s 9th birthday.  Again, the magic number is 9, as if a 9 year old could bring a medical malpractice claim.

And again, the only relief comes to those under the age of 6.  For all other children, the 3-year statute of limitations will apply.  Naturally, it makes sense to protect negligent medical providers at the expense of innocent children harmed by medical malpractice.

Early Warning Signs of Cerebral Palsy

Albuquerque Personal Injury Attorneys » Early Warning Signs of Cerebral Palsy

injury to the brain.  Signs that a child may have the disability may not be apparent at birth.  In fact, signs may appear as late as age five in some children; however, there are some early warning signs that parents should watch out for.

Depending on the type of damage done and the part of the brain affected, the warning signs can be quite varied from child to child.  One child may be very physically rigid while another may seem loose or floppy.  Yet, the most common early warning signs involve developmental delays.  When a child misses certain key milestones at a typical age, such as rolling over, sitting unassisted or crawling, there may be cause for concern.

At 2 months of age, parents can watch for issues when they pick up their child, like difficulty in controlling the head or stiff legs that “scissor” or cross.  At 6 months, parents should continue to watch for head controlling difficulties, as well as the favoring of one hand over another or an inability to roll over.  By 10 months, an inability to sit without assistance or dragging one side of the body while crawling are warning signs.  And by 12 months, there is definite concern when a child is not crawling or able to stand without assistance.

If you suspect your child may have a developmental delay, it is best to contact a healthcare provider for early screening and evaluation.  A physician can test motor skills and reflexes, review the family’s medical history, and even use specialized diagnostic tools to view the brain, such as an MRI or CAT scan.  Medical professionals may also detect abnormalities that parents may not see, such as unusual muscle tone or posture.

If you see these indicators in your child, you should alert the child‘s pediatrician at once.  The child‘s doctor should be informed as some of these signs may not be readily apparent during a routine checkup.

Types of Cerebral Palsy

Cerebral Palsy is actually a broad term for neurological impairment that creates mobility difficulties.  Just as broad are the variety of possible symptoms and effects experienced by each individual.

4 Main Categories of Cerebral Palsy

Yet, Cerebral Palsy can be broken into four main types:  “spastic”, “athetoid”, “ataxic” and “mixed”.  Medical professionals identify the type of Cerebral Palsy according to the primary type of movement disorder present.

Spastic Cerebral Palsy involves tight, contracted muscles, particularly in the back, arms or legs.  This type makes movement stiff and awkward, often causing the legs to turn in or scissor as a child tries to walk.  It can also lead to limb or joint deformities due to the stress on the body and the persistent contracture of muscles.  Spastic Cerebral Palsy occurs in approximately 50 to 75 percent of all Cerebral Palsy cases.

Athetoid Cerebral Palsy can also be called “dyskinetic” Cerebral Palsy, which affects the entire body’s ability to move.  This disorder manifests in low muscle tone, creating uncontrolled movement that makes it hard to sit up straight or walk.  It can also affect the facial muscles, making it difficult to feed properly.  Excessive drooling, grimacing or speech impairments can also be present.  Athetoid Cerebral Palsy is found in 10 to 20 percent of all cases.

Ataxic Cerebral Palsy includes symptoms of poor depth perception, coordination and balance.  This type also creates difficulty in fine motor skills, like writing or typing.  It also may cause posture problems and the use of a wide, irregular gait while walking.  Ataxic Cerebral Palsy affects approximately 5 to 10 percent of all cases.

Mixed Cerebral Palsy is some combination of  the prior types, including both tight and loose muscle tone which creates stiffness in some muscles and involuntary movement in others.

Subtypes Within Cerebral Palsy Categories

There are also sub-types within each main type, depending on which part of the body is affected by Cerebral Palsy.  Pentaplegia affects both the arms and legs, as well as the torso and facial muscles, while quadriplegia only includes the arms and legs.  Hemiplegia affects the arm and leg on one side of the body, diplegia affects only the legs and monoplegia is involved with only one limb.

Though there are many causes of cerebral palsy unrelated to experienced personal injury attorney can assist you in that process.

Types of Brain Damage Found in Cerebral Palsy Patients

Cerebral palsy is primarily a neurological condition that affects mobility.  It is caused by either malformation of the brain or damage to the brain before, during or after birth.  Medical experts have discovered four main types of brain damage involved .  These are classified according to the type and timing of the injury received during brain development.

Cerebral dysgenesis is a type of brain damage that involves abnormal brain growth.  This results in a brain that did not fully develop or has portions missing.  This type of damage can occur any time during fetal development.  Risk factors for developing cerebral dysgenesis include fever, infections and trauma during pregnancy among others.  In addition genetic mutations may cause damaged cells to reproduce during fetal development.

Periventricular leukomalacia (PVL) is damage to the white matter of the brain tissue.  This damage results in death and decay of brain cells, which leaves empty areas within the brain that fill with fluid.  This can interrupt the transmission of nerve impulses and can cause impaired brain function and spasticity.  It is believed that intrauterine infections, which deliver toxins to the membranes surrounding a developing fetus, are a primary cause of PVL.

The third type is intracranial hemorrhage (IVH) CP related brain damage.  This damage is caused by bleeding in the brain which is either arterial, involving blood from the heart, or venous, involving blood returning to the heart.  IVH most often occurs within the first 48 hours after birth.  It can cause localized swelling or hematomas, which can damage or kill brain tissue by compressing it or reducing its supply of blood.  IVH can come from an infant’s own blood clotting abnormalities or malformed blood vessels, a mother’s hypertension or infection, placental blood clots, shaken baby syndrome or head injury.

The type is hypoxic-ischemic encephalopathy (HIE), also known as intrapartum asphyxia or a lack of oxygen to the brain.  Studies have shown that only 9% of CP cases are directly related to HIE.   However, HIE is the leading cause of severe impairment or death in infants, and is most common in infants that have reached full-term.  It also the type that is most commonly associated with medical malpractice.

Oxygen deprivation can come from many sources including umbilical cord complications, uterine rupture, acute hypotension or hemorrhage in the mother, as well as a host of other situations. Many, of the causes of oxygen deprivation to the unborn child are unrelated to medical negligence.  However, medical negligence is a significant cause and should not be ruled out without further investigation.

It is important to identify the causes of cerebral palsy. There are many causes of cerebral palsy and many factors that would lead to oxygen deprivation so it should not be assumed that medical negligence caused the birth injuries.  On the other hand, it should not be assumed that it is not. An experienced personal injury attorney can assist in making that determination

New Techniques to Fight Cerebral Palsy in the Womb

Doctors at Monash Medical Centre in Melbourne, Australia announced a new medical trial that will use melatonin in an effort to prevent prenatal cerebral palsy. The trial will involve 20 women and will go on for 12 months. Even though results are not expected until 2013, there is reason to be cautiously optimistic.

According to the Centers for Disease Control (CDC) one in every 303 children in the U.S. suffers from cerebral palsy. Cerebral palsy describes a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. However, in a large majority of cerebral palsy cases, the damage occurs during pregnancy.

Whatever the cause, cerebral palsy greatly inhibits a child‘s development and quality of life. The severity of symptoms can range from moderate to severe. Many children with cerebral palsy require life-long, around-the-clock care.

The Monash study builds on previous research by its scientists and doctors who have found a link between intrauterine fetal growth restriction (IUGR) and injuries to the developing brain of the fetus. According to the specialists at Monash Medical Centre, one in 20 pregnant women exhibit IUGR, a situation where the placenta does not provide sufficient nutrients and oxygen to the developing fetus‘ brain. IUGR is responsible for a large number of cerebral palsy cases, but currently there is little doctors have been able to do in the way of treatment. The Australian study represents new hope in this field.

The doctors and specialists at Monash Medical Centre have spent the last five years studying and observing the causes of brain injuries and IUGR. Their research has established that the brain injury is caused by oxidative stress, where an excess of free radicals causes tissue damage. Free radicals are highly reactive chemicals associated with cell damage.

According to the doctors and scientists at Monash, doses of melatonin could prevent oxidative stress by protecting fetal brain cells. Melatonin is produced by the pineal gland, and besides regulating important functions in the body, such as the wake-sleep cycle, it is also a powerful antioxidant. With its ability to easily cross cell membranes and from blood to brain cells, scientists at Monash hope that melatonin will prevent oxidative damage to cells caused by free radicals.

The Monash study will include 20 pregnant women who will be administered melatonin orally in tablet form if they exhibit IUGR. Research at Monash has already shown that free radical levels in cord blood of IUGR births are higher than in normal births. The trial will also test the cord blood of babies who were given melatonin for free radical levels to see whether the treatment was successful. If successful, a second trial will include 100 women and two- and three-year follow-up exams of babies to test for development of cerebral palsy.

The trial, if successful, could represent major progress in prenatal treatment and hopefully prevent cerebral palsy in some children. There will still be those instances of cerebral palsy caused by medical negligence. The study does not address those cases. If your child has been the victim of medical negligence, then it is important to seek the counsel of an unique deadlines associated with medical malpractice claims.

Obstetrics Medical Malpractice Suits Avoidable Through Training, Preparation and Communication

Malpractice insurance premiums for obstetricians are often higher than for any other medical profession. Perhaps it is because the average payment in an obstetrical medical malpractice suit is around $947,000, more than double the payment for other medical malpractice suits.

CRICO Strategies, a Massachusetts-based medical risk management company, released a study in June 2010 of 800 obstetrics-related malpractice cases between 2005 and 2009. The study focused on the top reasons for medical malpractice claims against obstetricians and identified the risks that lead to these suits.

The study found that the top claims in obstetric malpractice suits involved substandard medical judgment or judgment errors (77%), miscommunication (36%), technical error (26%), and inadequate documentation (26%). Other claims included administrative failures and inadequate supervision.

The study also found that 65% of obstetric medical malpractice cases entail “high severity” injuries, which include the death of the mother, the child or both. The three most common allegations within these cases dealt with delay in treatment of fetal distress, improper performance of vaginal delivery, and improper pregnancy management.

A routine delivery can turn into a life-and-death situation for both mother and child in a matter of seconds. In emergency situations the attending obstetrician and medical team must be aware of countless factors in order to make the correct decision and act accordingly. Unfortunately, healthcare providers sometimes lack all of the pertinent information or are too caught up in managing the constantly changing situation to recognize signs of fetal or maternal distress in time to remedy it.

Communication between team members during critical times of problematic and emergency deliveries is paramount. However, since labor complications are infrequent, many healthcare providers lack the necessary communication skills and structures to make decision-makers aware of all of the factors involved.

The CRICO study found that 43% of claims brought against smaller hospitals involve issues that relate to training and education. At other times, especially during second-stage labor, precise surgical maneuvers and specialized equipment may require extensive training and real-time experience. Medical teams may lack the familiarity and preparation to ensure that no harm is done to the mother or child.

In these cases, most of the time it is not one single incident that causes the problem, but a confluence of small mistakes and oversights that combine to create the crisis situation, according to the study. Often, these small mistakes and lapses in communication are not caught in time to remedy the situation. However, had the proper decisions been made and had communication and training channels been in place, most of these situations could have had a better chance for a favorable outcome.

The study emphasizes that accurate interpretation of data and symptoms, controlled and structured communication, and collective decision-making can make all the differences in most cases. Additionally, electronic fetal monitor (EFM) training and frequent, regular opportunities to apply this training are crucial in avoiding many mistakes that result in malpractice claims. The study also emphasizes the value of contingency plans in situations where time is of the essence. Finally, it encourages prenatal healthcare providers to be alert and communicate with their patients and other members of their team about potential risk factors during pregnancy.

Infant Asphyxia and Hypoxic-Ischemic Encephalopathy

A typical, healthy infant begins to breathe immediately after birth. If one minute has gone by and a regular breathing pattern has not been established, the child may be suffering from asphyxia, or a lack of oxygen. Asphyxia affects approximately 5% of newborn infants.

After delivery, medical personnel monitor a child‘s vital signs to insure proper oxygen delivery. These signs include: the child‘s color, breathing pattern, heart rate, muscle tone and response to stimulation. Asphyxia may be present if an infant‘s tongue is not pink, if there is any gasping or lack of breathing, if heart beats fall below 100 beats per minute, if there is minimal movement or limpness or if there is minimal response or no response to stimulation.

Asphyxia can be resolved in most infants with resuscitation; however, asphyxia can result in hypoxic-ischemic encephalopathy (HIE). HIE is brain damage that occurs in infants either before, during or shortly after birth from asphyxia. It occurs most among infants that are full-term, and is a leading cause of impairment which can include motor difficulties, developmental delays, epilepsy and cognitive deficits.

Risk factors for HIE include, but are not limited to:

HIE can be detected immediately after birth and diagnosed by neuro-imaging procedures, like an MRI or CT scan. Most likely, however, it is a parent, caregiver or medical professional that notices signs of HIE, like delayed development or impaired motor control as the child ages.

While HIE is usually sudden and unexpected, some preventative measures can be taken to help eliminate the risk. Proper labor management and early awareness of fetal distress by medical personnel may provide some protection. Attention to risk factors can also lead to better preparation for possible complications.

More importantly, expectant parents should go into the delivery process well informed. This includes understanding the importance of fetal monitoring equipment, insuring that fully qualified and properly trained physicians are available during delivery, and knowing patient rights, particularly when it comes to decision-making and second opinions.

In those cases where HIE results from deadlines in medical malpractice claims that must not be missed

Negligent Failure to Perform C-sections Resulting in Cerebral Palsy

Cerebral palsy is often caused by a doctor‘s negligent failure to perform a C-section when conditions deem it necessary.

Juries around the country have recognized that failure to perform a timely C-section when medically necessary is a significant deviation from reasonable standards of care. As a result they often return sizeable medical malpractice verdicts in favor of affected children and families.

The CDC estimates that one in every 303 children in the US suffers from cerebral palsy. Cerebral palsy is the name for a group of brain and nervous system disabilities that affects movement, hearing, sight, thinking, and learning. Cerebral palsy greatly affects a child‘s development and quality of life. The severity of symptoms can range from moderate to severe, and many affected children require life-long care.

Cerebral palsy is caused by damage to the brain that can occur during pregnancy, birth, and early childhood. Most children display symptoms of cerebral palsy by age three. Around 20% of cerebral palsy cases are attributed to brain damage during birth. In many of these situations, the brain damage that leads to cerebral palsy is caused by lack of oxygen to the brain, known as fetal hypoxia. According to the CDC, fetal hypoxia accounts for roughly 10% of cases of cerebral palsy. Even though only a small percentage of all cerebral palsy cases can be prevented by the timely performance of a C-section, failure to do so can have devastating results for a child and family.

In a number of cases, possible brain damage from lack of oxygen to the brain can be prevented by the timely performance of a C-section. Situations when a C-section becomes medically necessary include when: (1) the baby does not progress through the birth canal and is deprived of oxygen, (2) the umbilical cord is wrapped around the child‘s neck and the problem cannot be corrected, and (3) prolonged attempts to induce labor have not been effective and the child remains in the birth canal for too long.

When these problems develop, medical professionals often have mere minutes to react before irreversible damage is done to mother and child. There are several ways that healthcare providers can monitor the child for signs of distress that can lead to deprivation of oxygen to the brain. Fetal hypoxia is often accompanied by a change in the baby‘s heart rate, which should be carefully monitored by healthcare professionals if there are any signs of complications during birth or if there are risk factors associated with the pregnancy.

Unless doctors and nurses are well trained and vigilant, and the hospital has standard procedures in place, these warning signs may go unnoticed and precious time may be lost. In some situations, there is no way to identify signs of distress in time. However, in a large number of cases, the signs are obvious and the physician or medical team simply does not address the need for a C- section in a speedy manner, causing injury and even death to the child. In these cases, doctors and hospitals deviate from the medical standard of care and may be deemed negligent under civil law.

As indicated, medical negligence is not always or even the most common cause of cerebral palsy. However, if your child suffers from cerebral palsy and you suspect medical negligence, it is important to make the determination as early as possible. An experienced personal injury attorney can help you do just that.

Medical Negligence is Only One (But Significant) Cause of Cerebral Palsy

Babies bring a whole new level of adventure into the lives of their loved ones. Yet, they also bring countless concerns, particularly when they fail to reach conventional milestones, like rolling over, crawling or walking. Combine these with more significant issues as a child ages, like continued difficulty lifting one‘s head, physical stiffness or an inability to sit without support and the possibility of a motor disability may exist.

Centers for Disease Control and Prevention, Cerebral Palsy occurs in 1 out of every 303 eight-year-old U.S. children, and approximately 10,000 babies will develop CP each year. It is 1.2 times more frequent in males than females, and the incident rate is significantly lower in Hispanics versus Caucasian or African American children.

Cerebral Palsy is a condition that affects the coordination between the brain and the body‘s muscles, thus impacting a child‘s ability to move and maintain posture. It is typically caused when the brain develops abnormally or is damaged during development.

Depending on the area and extent of damage, a child can have a very mild condition which results in awkwardness or clumsiness. More moderate cases may involve involuntary movement, speech problems or muscle tightness. And, more severe occurrences could include sight, hearing or speech impairment, difficulty swallowing, incontinence or mental retardation.

If the damage occurs before birth, it is considered “congenital” cerebral palsy, affecting nearly 70% of the children diagnosed with cerebral palsy. Some potential causes before birth involve infections contracted by the mother, a lack of blood supply and genetic conditions.

If the damage occurs during birth, it is still defined as “congenital”; however, this type only affects about 20% of those with a formal cerebral palsy diagnosis. During birth, a child can have problems from premature birth, delivery complications, having low birth weight or experiencing severe jaundice.

When symptoms appear after birth, typically after 28 days, it is considered “acquired” cerebral palsy. This type affects the remaining 10% diagnosed. Situations that can develop during this time include, a lack of oxygen, bleeding of the brain, or even a brain injury from a fall, car accident or physical abuse.

Of the many ways that a child may suffer cerebral palsy, medical malpractice is only one cause of the condition. The estimates of medical negligence related cerebral palsy vary wildly from 4% to 25%. However, even one case of medical malpractice leading to sever and permanent damage to a child is too many.

If you believe your child has suffered cerebral palsy as a result of medical negligence, you should seek the assistance of an experienced personal injury attorney as soon as possible to insure that your rights and the rights of your child are fully protected.

Loss of Consortium Claims: Discovery Can be Brutal

Damages by the plaintiff‘s children or spouse for loss of consortium which is defined as the “loss of the society, guidance, companionship and sexual relations resulting from the plaintiff‘s injuries.”

The allowance of damages for the loss of sexual relations is most closely identified with a loss of consortium action. And it is this element that is most prone to invasive and embarrassing discovery by the defendant‘s attorneys.

The claim implies strong emotional bonds and active sexual relations between the plaintiff and his or her spouse. The defense attorneys will go to great lengths to tear down any suggestion by the plaintiff‘s spouse that any such emotional bonds or regular sexual activity was present in the relationship.

To do this, the defendant‘s attorneys will often hire private investigators to pry into every detail of the relationship or lack of relationship between the plaintiff and his or her spouse. They will try to find any indication of strain on the relationship to show that there was no true loss. As you might imagine, what they most hope to find is infidelity. They will try to find both present and past infidelity. The goal is to tear down the relationship and the credibility of the parties in the eyes of the jury.

Discovery, and especially depositions, on loss of consortium claims can be brutal, embarrassing and even humiliating. The scope of discovery is very broad allowing the defense attorney to ask almost any question no matter how invasive or seemingly irrelevant. Depositions questions need not be relevant to be asked. It is only necessary that the question could possibly lead to the discovery of other admissible evidence.

The broad scope of discovery opens up questioning about the plaintiff and his or her spouse‘s sexual histories. This includes questioning about every conceivable topic related to sex including sexually transmitted diseases, unplanned extramarital pregnancies, birth control practices, sexual activities and virtually every other issue concerning the pre-marital and extramarital sexual practices of the Plaintiff and his or her spouse. If that is not enough, the attorneys can ask some rather explicit questions about the current sexual activities inside the marital relationship.

The findings from discovery and depositions can be both embarrassing and extremely harmful to the loss of consortium claims. In addition, juries can be pretty unforgiving, somewhat puritan and often hypocritical so that the evidence raised on the loss of consortium claims harms the primary personal injury claims made by the plaintiff.

Before pursuing loss of consortium claims, every plaintiff must honestly assess his or her situation. What will the defense find? How will a jury view that evidence? How would the most sexually conservative, self-righteous, moralistic, judgmental person in a sexually conservative, self-righteous, moralistic, and judgmental community view the evidence? That person is quite likely on the jury and he or she is absolutely unforgiving of the plaintiff‘s transgressions

What is a Qualified Health Care Provider in New Mexico and Why Does it Matter?

Albuquerque Personal Injury Attorneys » What is a Qualified Health Care Provider in New Mexico and Why Does it Matter?

This question is frequently asked in New Mexico medical malpractice cases.  It is very important and should be asked at the very least by the attorney handling the claim

The first part of the question is pretty straightforward.   The second part is far more complicated and raises a host of other issues and questions regarding medical malpractice claims in New Mexico.  As such, the second part is addressed in summary fashion meant only as a brief overview.

So what is a “qualified healthcare provider”?  It is essentially a doctor or other medical provider that has opted in to protection under the New Mexico Medical Malpractice Act (MMA) by meeting a few minor insurance requirements.

There are fairly nominal requirements to qualify as a “qualified healthcare provider” under the MMA.  To qualify under the MMA, the medical provider need only provide proof of financial responsibility which essentially amounts to proof of insurance in the minimum amount of $200,000 per occurrence.

Failure to opt in and provider the proof of financial responsibility/insurance means that the medical provider will not enjoy the many protections under the MMA.   This brings us to second part of the question which is “Why does qualified healthcare provider status matter to an injured patient?”

There are a number of protections afforded qualified healthcare providers in New Mexico.  First, and most important, are the caps placed on damage awards for medical negligence claims against qualified healthcare providers that do not exist for those outside the MMA.  The cap for any one claim is set at $600,000.  A provider’s individual liability is limited to the $200,000 minimum insurance coverage.

In addition to the cap, the MMA specifically states there will be no monetary award for future medical expense.  Because of the nature of injuries in these claims, this can be extremely harmful to an injured patient who must have (pay for) continuing medical care related to the negligence of the medical provider.  This of course raises many policy issues, the most obvious of which is why must an injured patient (or more often taxpayers through Medicare or Medicaid) bear the costs of a medical provider‘s negligence?

The next important aspect of qualified healthcare provider status is the process by which a claim must be initiated against a qualified healthcare provider.  Unlike other Medical Review Panel.  This means the plaintiff must first present his or her case to the Panel for review and findings regarding the alleged negligence.  The panel consists of doctors and lawyers.

Though it is required that the case be presented to the Panel, the Panel’s decision is not binding on the injured patient.  The injured patient may still file suit even if the panel finds against him or her.   This is a good thing since the Panel typically sides with the medical provider.

In short, the determination of whether the medical provider is a qualified healthcare provider is critical.  It should be done very early in a potential case.  The determination will dictate the course of the case.

Keep in mind that these issues can be quite complicated.  This is particularly true of the caps issue.   The caps raise a host of challenges in these cases which must be met in order to achieve meaningful compensation for an injured patient.

Medical malpractice claims in New Mexico (and elsewhere) have many complexities, obstacles and limitations that other cases do not have.  It is extremely important that you immediately consult with an attorney experienced in medical malpractice if you have been seriously injured and have reason to believe that medical negligence was to blame

What are the Deadlines for Filing a Medical Malpractice Claim against a Qualified Healthcare Provider?

Albuquerque Personal Injury Attorneys » What are the Deadlines for Filing a Medical Malpractice Claim against a Qualified Healthcare Provider?

In New Mexico, like many states, doctors and other medical providers enjoy a number of protections that are not available to others that cause harm.  In order to get the benefit of these protections, the medical professional must be a “qualified healthcare provider” under the New Mexico Medical Malpractice Act.

Medical Review Panel Requirement

One of the main protections for medical providers and hurdles for injured patients is the requirement for that the patient first take his or her case before a Medical Review Panel before filing a medical malpractice lawsuit.  This is not required for doctors who are not qualified healthcare providers.

Statute of Limitations

This brings us to the question of deadlines in a claim against a qualified healthcare provider.   personal injury claims, including medical malpractice claims, the statute of limitations is typically 3 years from the date of the alleged act of negligence.

Claims Against the Government

It is important to note that claims against governmental facilities or providers have shorter deadlines.  The first important deadline in claims against the government can run in as little as 90 days and the statute of limitations is only 2 years.  Deadlines on governmental claims are discussed at length elsewhere on this site.

Discovery Rule Does Not Apply to Qualified Healthcare Providers

Returning to the limitations on claims against qualified healthcare providers, the requirement that a claim first be brought before a Medical Review Panel raises additional issues.  Medical malpractice claims are unique in a number of ways that could make this requirement very burdensome.

First, it is not always apparent at first that the patient has been injured or that the medical provider was negligent.  One good example is when surgical supplies or instruments are left in patient are not discovered for months or even years.  In cases against non-qualified healthcare providers, the injured patient gets the benefit of the “discovery rule” which means the statute of limitations does not begin to run until the negligence is discovered.

In claims against qualified healthcare providers, the patient does not have the benefit of the discovery rule.  The statute of limitations runs in 3 years no matter when the negligence is discovered.  The requirement of the Medical Review Panel could create impossible barriers to a claim if the negligence was discovered near the end of the 3 year period.

Tolling of Statute of Limitations While Before Medical Review Panel

The Medical Malpractice Act throws injured patients a bone here.  Though the claims must be brought to the Medical Review Panel within 3 years, the statute of limitations is tolled while the case is pending before the Panel.  This means the statute of limitations stops running while the case is before the Panel giving the injured patient additional time to file suit.

Under the statute, the statute of limitations will not start running again until 30 days after the Panel’s final decision.  Once it begins running again, it will run normally up to the 3 year statute of limitations.  This provides some protection for those that discover the negligence late into the limitations period and get their claim before the Medical Review Panel in a timely manner.   It provides no protection for those that discover it after the 3 years has run.

Do Not Delay!

Like all these situations, every case is different requiring careful individual analysis.  Even if the statute has run against one provider, it may not have run against others.  For example, there may be numerous negligent parties some of whom are qualified healthcare providers and others who are not.  It is important to make these determinations as soon as possible.

Due to the complexities of medical malpractice claims, the many unique rules, the protections for some providers and the sheer difficulty of bringing these claims, it is extremely important that you  immediately contact an attorney with experience in medical malpractice claims if you or a loved one has been seriously injured and you suspect medical negligence is the cause.

Delay in these claims is always inadvisable.  Missing the statute of limitations will bar your medical negligence claim completely.