Malamut & Associates


Frequently Asked Questions About Birth Injury Law

August 10, 2017 |

child birth injuryThe laws surrounding birth injury incidents can be complicated. Between the high emotions associated with the injuries and the intricate circumstances that define whether it was negligence, malpractice or an accident, it can be difficult to navigate through the options in legal defense and recovery. Even more complicated, many may not realize harm inflicted during birth constitutes as a birth injury or medical error.

Understanding the basics in birth injury can help protect the mother’s rights during childbirth. The following are frequently asked questions regarding birth injury law.

Birth Injury Versus Birth Defect

In most cases, a birth defect is a condition or harm to a baby prior to delivery while a birth injury refers to harm or a mishap occurring during childbirth. In some cases, it may be difficult to pinpoint the distinction. Proving birth injury, as a result, includes proving the harm, injury or condition was caused during childbirth.

Is a Lawsuit Always Possible for Harm During Childbirth?

When a medical professional does not properly assess or respond to conditions or complications during childbirth that another doctor would have acted upon under the same set of circumstances, a lawsuit has a high likelihood of success. A doctor is also liable when prescribed medication leads to birth injury or defect, even if the harm occurred prior to childbirth. However, not all birth defects and injuries are avoidable. A lawsuit of this type’s success is determined by whether the medical provider was negligent or breached their duty of care where a different provider would not.

Are Birth Injuries Common?

Birth injuries are not necessarily common, but out of every 1,000 babies born in the U.S., five will be injured during birth, making it important to understand the law for self-advocacy purposes.

Are Birth Defects Common?

Similar to birth injuries, birth defects are also not necessarily common but they do occur in 7% of babies born. However, this ranges from very minor to very severe, meaning grave or acute birth defects are not very common.

Who Receives Compensation for a Birth Defect or Injury?

The parents can receive compensation for the emotional distress and damages in some situations after a birth defect or injury, especially in more severe cases. However, successful lawsuit payouts are typically made in the form of a trust for the child for the actual damages.

How is it Determined Whether the Medical Professional Was Within the Standards of Good Medical Practice?

A jury determines whether the doctor or other medical professional acted within the standards of good medical practice. The defense will bring in experts and specialists, such as an obstetrician, to testify whether they believe the actions followed the accepted standard of care. Jurors must weigh those expert opinions while making a decision.

If your child was victim to a birth injury due to the negligence of a medical provider, contact us today. At Malamut & Associates, we take fighting for the rights of our clients seriously and will put our years of experience to work for you.