Some of the most prolific medical malpractice cases involve injuries sustained by children during the labor and delivery process. I can’t image a warm-blooded-person who isn’t moved by the very thought of a severely disabled child who faces a lifetime of developmental difficulties and endless hours of specialized medical attention.
Despite their poignant tales, these children—or perhaps more accurately, the people bringing lawsuits on their behalves, still have the burden of establishing that their child’s injury derived from the negligence of the attending physician or hospital.
That’s right, before these children receive a penny for their injuries or care-related expenses, the law says that they have the burden of proving the following:
- The doctor and / or hospital has a duty to provide proper medical care for the child
The fact that a doctor-patient relationship exists is usually considered enough in most jurisdictions for a doctor to act in a professional manner and treat their patients with the skill that a reasonable doctor would provide.
- The duty to provide reasonable medical care was breached by the treating doctor or hospital staff
Frequently, this part of the case proves to be the most difficult as it involves establishing what the ‘standard of care’ is for each procedure or circumstance presenting itself to the doctor. While it may be easy to second-guess a physician’s decision after the fact, establishing how a prudent physician would act or react to circumstances presenting themselves can be difficult in light of the fact that there may be different opinions about how to handle certain circumstances.
In order to establish what exactly the standard of care is in each case, parties to a lawsuit typically rely upon expert witnesses. While the name ‘expert witness’ correctly implies that the person is an expert in their profession. The medical expert’s real role is to educate the jury as to what the proper way to do a procedure or response to a set of circumstances.
Just as an injured party has a opportunity to retain an expert witness(s) to prove their case, a doctor being sued for negligence can similarly retain his or her own expert witness to support that the things that they did were in fact correct.
- The doctors breach of care resulted in injuries to the child
Similar to other types of personal injury cases, birth injury lawsuits place a burden on the person initiating the lawsuit in terms of establishing the injuries alleged are due to the act of the defendant doctor--- as opposed to the injuries occurring from another source. Cases involving cerebral palsy and other types of birth injuries commonly involve allegations that the child’s condition resulted from a genetic abnormality or developmental complication as opposed to the conduct of a physician.
- The child sustained damages
Most birth injury cases involve significant physical and cognitive loss, which require significant amounts of past and future care. The plaintiff's in a birth injury case may use the services of a life-care planner to chronicle what type of medical equipment and care the child will require during each phase of their life.
As opposed to arguing that the child’s damages are not present, defendant doctors may simply allege that damages should not be considered because the plaintiff failed to establish that there was a deviation in the standard of care.
Simple enough? Not so fast....
While the above elements of a birth injury case may seem simple enough, when complex medical issues are involved--- and credible experts from both sides advocate contradictory positions, the waters can quickly become quite murky. Particularly when the presenting issues represent a judgment call, equally qualified physicians may have differing ways of addressing the issue.
I was again reminded about the uncertainties involved in birth injury lawsuits when I heard about a recent trial in Florida involving a three-year-old boy with significant physical disabilities. After a mere forty minutes of deliberations, the jury returned a verdict in favor of the defendant hospital and doctors.
The trial centered on the way that the hospital and physicians interpreted--- and responded to a situation involving fetal distress. While there was no dispute that the child involved suffered profound injuries at birth due to an interruption of oxygen during the labor and delivery process that stemmed from a uterine rupture-- the alleged medical malpractice really came down to one word-- forseeability.
The tipping point of the trial was how a reasonable physician would respond to the information gathered about the situation in light of the diagnostic testing and information provided by the mother. Unlike most situations involving a uterine rupture—where a woman has a scar in her uterus from prior pregnancies or trauma--- the mother in this case, presented without any of the factors which could increase her chance of a uterine rupture.
While my heart goes out to this family and the struggles they certainly will face, situations such as this are telling of the uphill battle faced in most birth injury cases. As a birth injury lawyer, one of the more difficult parts of my job is explaining to a family with a special needs child that they may not have a case because of the difficulty in establishing a breach of care or causation.
Therefore, I try bringing complicating issues to the families attention immediately if a consulting doctor identifies them during his or her case review. While these are always difficult conversations to have, I think it’s important for families to understand the issues involved--- both positive --- and negative before we put the case in the hands of a jury.
Related:
Vero Beach jury finds hospital not liable in birth injuries that caused boy's disabilities TCPalm by Elliot Jones, January 24, 2012
Can a mother’s obstetric hemorrhage result in injury to the baby?
What is a uterine rupture and does it pose a danger to mother or baby?
Complications During Pregnancy, Such As Uterine Rupture, Put Mother At Risk
Hemorrhages (Uncontrolled Bleeding) During Delivery Must Be Carefully Monitored To Keep Mom & Baby Safe
A 
Forceps are a tool available to doctors to assist with the delivery of babies in circumstances where the anatomy of the mother or positioning of the child requires assistance for a vaginal delivery. In most situations where forceps are used, the doctor encountered some difficultly during the delivery process to necessitate utilization of this tool. 
For some reason, my wife likes to keep her hand on her cell phone at all times--- mostly to capture every: laugh, cry, tumble, stumble, meal, activity, outfit, ect. of my son. 