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 medical malpractice where the baby suffers 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.

Get Answers!

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.

Seek Legal Guidance

These determinations are difficult. In fact, they are difficult even for a lawyer which is why expert medical professionals must make the determination. An experienced medical malpractice attorney will identify the right expert for the case.  From there, the experts are typically hired by the medical malpractice attorneys handling the case which is one of many good reasons to seek legal guidance.

The Albuquerque attorneys at Collins & Collins, P.C. can be reached at (505) 242-5958.

The bad news on medical care for our armed forces just keeps getting worse.  Following up on the revelations regarding extensive waiting times and secret waiting lists at the VA Hospital, a new investigation from the New York Times reveals some equally disturbing patterns of neglect at our military hospitals.

Findings of Systemic Neglect in Military Hospital Medical Care 

The New York Times investigation found the military hospital network was wrought with “persistent lapses in protecting patients.”  The investigation found further that  “scrutiny is sporadic and avoidable errors are chronic” in the military hospital network.

The investigation found that the system was particularly lacking in two critical areas of care, surgery and maternity care.   However, a number of the actual incidents of negligence noted in the report were related to diagnostic error, which plagues the non-military hospitals as well.

In any event, these findings are troubling in light of the fact that 1.6 million active-duty military are treated each year in these hospitals.  With higher than average rates of medical error and neglect, it follows that active-duty service military and their families are receiving less than adequate medical care.

VA Hospital v. Military Hospital Systems 

First, it is important to understand the difference between the VA Hospital and Military Hospital systems.  The difference can affect the injured patient’s rights to recover for medical malpractice.

The VA Hospital system is run through the Department of Veteran Affairs.  As the name and management suggest, the VA Hospital system was created to serve veterans.  Medical malpractice claims against VA Hospitals are governed by the rules under the Federal Tort Claims Act.

On the other hand, the Military Hospital system is run through the Department of Defense.  Military hospitals serve active-duty military and their families.  Because these hospitals are under the Department of Defense, there are special rules above and beyond the Federal Tort Claims Act.

Feres Doctrine 

The Feres Doctrine is a long-standing law that prohibits active-duty military from filing suit against the government for injuries suffered during service.  The prohibitions under the Feres Doctrine apply to medical malpractice claims against military hospitals.

In short, this means that an active-duty service member cannot sue for medical malpractice no matter how severe the medical negligence.  The Feres Doctrine is grossly unfair and disrespectful of our active-duty military.  Our military deserves better—but so long as the Feres Doctrine stands, they will not get it in medical services or in the courts following negligent medical care.  In fact, it might be argued that the Feres Doctrine itself contributes to the deficiencies in care since there are no consequences for errors even in case of gross negligence.

Feres Doctrine Does Not Apply to Family Members 

The above-discussion is clearly not good news for active-duty service members.  However, it should be noted that the Feres Doctrine applies only to active-duty military, not their spouses or children.

In light of the number of family members that are treated and the rates of medical error in the military hospital system, it is safe to say that many innocent spouses and children are harmed by negligent medical care.

For instance, the New York Times investigation found that 50,000 babies are born each year in the military hospital system.  Couple this with the fact that maternity care is one problem area of care and you have a recipe for disastrous and unnecessary harm to the service member’s spouse and children.

Federal Tort Claims Act Governs Claims by Family Members 

Unlike active-duty military, family members may bring claims against military hospitals under the Federal Tort Claims Act.  The Federal Tort Claims Act has a number of significant requirements and deadlines.

The deadlines on claims under the Federal Tort Claims Act are shorter than on claims against private medical providers.  Missing a deadline or failing to abide by other requirements under the Act will bar the claim completely.

Do Not Delay – Seek Legal Guidance 

Medical malpractice claims on the whole are quite complicated.  They can take months to evaluate.  In fact, it can take months to collect the necessary medical records to begin the evaluation process.

Because the deadlines are short on medical malpractice claims under the Federal Tort Claims Act, it is very important to contact an experienced medical malpractice attorney as soon as you believe you or a loved one has been harmed by medical negligence in a military hospital.

It is rarely if ever beneficial to delay.  Delay can be fatal to a claim—with a missed deadline barring the claim completely.

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.

Prevention
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.

DISCLAIMER

Related Reading:
High Burden of Proof in New Mexico Birth Injury Lawsuits
Cesarean Sections: An Essential Tool in Prevention of Cerebral Palsy
Cerebral Palsy Birth Injuries: Devastating, Costly and Sometimes Avoidable!

Collins & Collins, P.C.
Albuquerque Attorneys

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.

Medical malpractice claims require that the medical provider fell below the standard of care in the medical profession. Once standard practices are in place, failure to adopt those practices may by definition suggest the medical provider fell below the standard of care. If your baby has suffered oxygen deprivation and resulting brain injury or cerebral palsy, you should contact an experienced personal injury attorney to determine if you have a possible medical malpractice claim.

DISCLAIMER

Related Reading:
Cerebral Palsy Birth Injuries: Devastating, Costly and Sometimes Avoidable!
Cesarean Sections: An Essential Tool in Prevention of Cerebral Palsy
New Techniques to Fight Cerebral Palsy in the Womb

Collins & Collins, P.C.
Albuquerque Attorneys

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.

Birth injury cases are complicated and difficult to pursue. In most cases, there will not be a sufficient level of negligence to merit a medical malpractice claim. Because these cases are so difficult and often expensive to pursue, it is important to thoroughly evaluate the claim as soon as possible. This is particularly so in light of the unique deadlines associated with medical malpractice claims in New Mexico.

As such, you should contact an experienced medical malpractice attorney as soon as possible.to 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.

DISCLAIMER

Collins & Collins, P.C.
Albuquerque Attorneys

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 medical malpractice and responsible for the past and future medical costs along with other 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 protected.

DISCLAIMER

Related Reading:
Placental Cerebral Infarction – A Serious and Sometimes Avoidable Birth Injury
Negligent Failure to Perform C-sections Resulting in Cerebral Palsy
Risks of Pre-Term C-Section Should be Understood by the Patient

Collins & Collins, P.C.
Albuquerque Attorneys

When a baby is born before 38 weeks of gestation the birth is considered a premature birth. The results of study authored by Dr. Geeta Swamy, assistant professor of obstetrics and gynecology at Duke University Medical Center, published in the Journal of American Medical Association concluded that 1 in every 8 births in the United States is premature.

The study also found that 60% of babies born at 26 weeks of gestation will develop long-term disabilities. These include chronic lung disease, blindness, deafness, and neuro-developmental problems. This number decreases to 30% for babies that are born at at least 31 weeks gestation. Another recent study in the June publication of the Lancet reported that approximately 12% of American babies are born before 37 weeks gestation.

Some premature births happen spontaneously and simply cannot be avoided. In other situations, the doctor decides rightly that it is best for both the mother and the baby that the baby is born early.

Thanks to cutting edge medical care more than half of the babies born at 25 weeks or sooner in the United States survive. Unfortunately, the cost of caring for these premature babies in this country alone is nearly $26.2 billion a year, which translates to $51,600 per premature infant.

The initial neonatal treatment required is not the only economic burden faced by families of premature infants. After the infant is discharged from the hospital there continues to be substantial cost incurred for healthcare, education, and social services for the infant and affected the family. Babies born sooner than 27 weeks are 10 times more likely to suffer from intellectual disabilities and 80 times more likely to have some variety of cerebral palsy— a neurological condition that cause physical disabilities.

Clearly, it is not unusual for expecting mothers to develop complications leading to premature birth. Often times, the mother will be placed on bed rest along with other measures for extended periods of time to delay the birth. Unfortunately, these measures will not always be successful with the birth coming early despite the efforts of medical providers.

The emotional and physical toll of a premature birth can be significant. The financial toll can be devastating. Medical costs can run into the hundreds of thousands of dollars. Even with insurance, the costs could be ruinous. For those without insurance, the medical costs will surely cripple the family financially for years to come.

DISCLAIMER

Collins & Collins, P.C.
Albuquerque Attorneys

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 attorney experienced in medical malpractice claims as soon as you suspect that there may be a problem as there are very 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.

DISCLAIMER

Related Reading:
Infant Asphyxia and Hypoxic-Ischemic Encephalopathy
Negligent Failure to Perform C-sections Resulting in Cerebral Palsy
Risks of Pre-Term C-Section Should be Understood by the Patient

Collins & Collins, P.C.
Albuquerque Attorneys

Doctors at Monash Medical Centre in Melbourne, Australia announced a new medical trial that will use melatonin in an effort to prevent prenatal fetal brain injuries, including 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 experienced personal injury attorney as soon as possible due to the unique deadlines associated with medical malpractice claims.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER

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 medical negligence or malpractice may ease some of the financial burdens of caring for a special needs child. Yet, this compensation can be quite challenging to obtain due to a wide variety of defenses that may be asserted in a 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.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER