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Do You Have a Birth Injury Case in Pennsylvania?

By Dr. Alan Goldberg and Stewart L. Cohen, Esq.

Birth injuries are an unfortunate, yet common occurrence. According to the National Library of Medicine, though cases of birth trauma are falling, the rate was 1.9 in 1,000 live births in 2012. In many cases, birth injuries are preventable. A common cause of preventable birth injuries is medical malpractice.

When healthcare providers make mistakes resulting in catastrophic injuries, it is patients and their families who bear the consequences—such as providing care and support and paying the exorbitant bills for treatment as well as enduring lifelong physical pain and emotional suffering. Some mistakes are unavoidable, but when personal injuries are caused by a medical health care provider’s negligence, you have the right to take action and seek compensation.

Requirements for Filing Birth Injury Cases in Pennsylvania

Birth injuries often fall under the medical malpractice umbrella. This means that a medical professional was negligent; in other words, they failed to meet the minimum standard of care of a reasonably competent healthcare provider.

Filing a Birth Injury Case

If you believe you have a birth injury case, your first step should be to contact an experienced birth injury attorney. Initial consultations are generally free of charge. If there is sufficient evidence of malpractice an attorney may send a letter to the responsible health care providers to open discussions about providing a prompt settlement for the injuries cause by the alleged negligence, which could allow you to avoid a lawsuit altogether. Frankly, medical malpractice cases rarely settle without starting a lawsuit.

In Pennsylvania, the law requires supporting testimony of at least one qualified medical expert to pursue a malpractice claim. A qualified medical expert must offer opinions that (1) establish the standard of care, (2) explain how a negligent medical provider breached the standard of care, and (3) confirm that the negligence caused an injury to the plaintiff. Birth injury cases can sometimes settle quickly, but on average they take two to four years to resolve.

The best thing you can do to prepare for filing a birth injury lawsuit is to keep good records of the symptoms of the injury and the impact of the injury and of all associated medical expenses.

Statute of Limitations

In most medical malpractice cases, the statute of limitations requires that a lawsuit be filed no later than two years from the date of injury. In Pennsylvania birth injury litigation, the two-year statute of limitations clock doesn’t start ticking for a lawsuit for a child’s injuries until the child’s eighteenth birthday. In other words, an injured child usually has until the age of twenty to file a lawsuit. However, parents who have suffered damages as a result of a birth injury or whose child has died as a result of medical malpractice must file a lawsuit for those damages within two years of the injuries or wrongful death.

Sometimes, signs of an injury do not show until later in life. In these situations, Pennsylvania employs what is referred to as the “discovery rule.” The “discovery rule” means the two-year statute of limitations does not begin to run until the injured person discovers—or through reasonable diligence should have discovered—that they were injured due to negligence.

Medical malpractice claims are especially complicated. Therefore, it is critical that relevant evidence of malpractice be identified and preserved as soon as possible. As time goes by, staff changes, records archiving, and other shifting administrative elements could make it difficult to retrieve the evidence you need. In fact, the process of collecting evidence could eat away at the statute of limitations before you have a chance to file a claim. As a result, even though you have a minimum of two years to file a claim, it is important to speak with an experienced birth injury lawyer as soon as you think you may have a claim.

What Falls Under a Birth Injury Case in Pennsylvania

You may have a birth injury claim if your child suffered physical or neurological injuries during labor and delivery. In some cases, improper or insufficient prenatal or postnatal care also leads to birth injury or wrongful death.

Common Birth Injuries

The most common neurological issues result from hypoxia, which means the baby did not get enough oxygen. This sometimes occurs because of interruption of the oxygen exchange from mother to baby through umbilical entanglement or other causes and an unnecessary delay in labor and delivery. A hypoxic injury during delivery may result in long-term conditions like cerebral palsy, which can affect a child’s entire life.

Other physical injuries occur due to rough handling, mismanaging issues like shoulder dystocia, or the improper use of medical tools such as forceps or a vacuum extractor. A few examples include the following:

  • Brachial plexus injury
  • Clavicle or humerus fractures
  • Vertebral and spinal cord injury
  • Brain damage
  • Head trauma
  • Facial paralysis

Keep in mind that some conditions may not present immediately; signs of damage like developmental delays and cognitive or motor disorders show as a child ages. In the first year, look for signs like difficulty eating, lack of muscle control, and poor coordination. After two years, you may start to notice issues such as difficulty with fine motor skills or the inability to speak or understand full sentences.

Other Birth Injuries

Birth defects may also fall under the birth injury umbrella. Not every birth defect results from negligence—unavoidable environmental factors as well as genetics often play a role in the development of birth defects. However, medical malpractice can lead to issues like gastroschisis, limb and head injuries or deformities and, through improper medication, cleft palate or lip. Other less common birth injuries include conditions like omphalocele, encephalocele, and heart defects.

Generally, the failure to timely diagnose and treat these conditions may be the result of mismanaged prenatal care such as inadequate or improperly performed testing or prescribing dangerous medications during pregnancy.

Birth injury claims can also extend to maternal injury. The most common maternal injuries are vaginal and perineum tearing, post-partum hemorrhaging, and a ruptured or prolapsed uterus. Maternal birth injuries like these can have long-term effects that impact the quality of life.

Who Can Be Held Responsible for a Birth Injury in Pennsylvania

Childbirth presents many risks that require skilled medical care from doctors, nurses, and other medical professionals. With so many parties involved, negligence by a number of medical professionals could result in birth trauma. Determining who is liable is part of your birth injury lawyer’s job, but investigations generally lead to a few key players.

Liable Parties

Generally, an entire team of healthcare providers is responsible for delivering and caring for newborns. In Pennsylvania, any member of this team could be liable for birth injuries. This includes primary obstetricians, nurses, anesthesiologists, radiologists, midwives, and any provider who cares for you or your child.

In addition, business entities like hospitals and clinics can be directly or vicariously liable (i.e., responsible for the negligence of its employees) for birth injuries. Because the identity of a potentially negligent provider is not always known, it’s typically beneficial to sue both hospital and those hospital employees who can be identified as providing negligent care. Pharmaceutical companies, as well, may bear responsibility if a drug is involved in the injury. Likewise, manufacturers of medical equipment and devices could also be proven negligent.

Sometimes, however, when a child is born with an injury, there is no responsible party. Injuries can occur despite the best of medical care. If negligence or inadequate care is not the source of the birth injury, you cannot pursue a medical malpractice case. But you will need experienced birth injury lawyers, working with appropriate experts, to learn if an injury was due to medical negligence.

Proving Liability

You need evidence of four elements of malpractice to prove liability and file a claim.

First, you need proof of a provider-patient relationship that establishes the provider’s duty of care. Next, you need evidence that the provider’s treatment breached the relevant standard of care—that is, the minimum standard that a medical provider in the field is required to meet. Third, you must show that the breach in duty of care resulted in injuries to the mother or child. Finally, this harm must result in provable financial, physical, or emotional damages.

Your personal injury lawyer will consult with medical experts to pursue the necessary evidence on your behalf. They may need medical records from pregnancy, labor, delivery, injury

diagnosis, and follow-up care. They will also look for past complaints against the defendant, seek out eyewitnesses from among delivery participants, and gather expert testimony from other medical professionals.

Damages Available in a Pennsylvania Birth Injury Case

Living with birth injuries can be more than painful—it can be a devastating financial blow for affected families. For instance, according to the Centers for Disease Control, 1 in 345 children suffer from cerebral palsy. The cost of caring for people with this condition can reach millions of dollars. Most families cannot bear this heavy financial burden, but a fair settlement with liable parties can provide relief.

You can receive compensation for economic damages such as medical expenses, lost income, special educational needs, and treatment costs. In addition, the settlement may award compensation for less tangible damages as well, including physical pain, emotional suffering, and loss of life’s pleasures. Unlike in other states, there is no cap on damages in Pennsylvania, whether economic or non-economic. Damages awarded to children are often held in trust and can be used to provide care, treatment, and support for the injured child. However, parents may also face economic and noneconomic losses while caring for their injured children. In these cases, liable parties pay damages directly to the parents.

baby holding mother's finger

Talk to an Experienced Birth Injury Lawyer Today

A medical malpractice claim is complex and may take years to resolve. If you have a birth injury case in Pennsylvania, it’s better to file a lawsuit sooner rather than later. Reach out to an experienced Philadelphia birth injury attorney today to receive the compensation you deserve.

Do you have a birth injury case in Pennsylvania? The law offices of Cohen, Placitella & Roth can help you with every step of the process. Contact us today or reach out to us at (215) 567-3500.

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