TAKING CARE OF YOUR BIRTH INJURY
CASE SO YOU DON’T HAVE TO

A birth injury is a personal injury that occurs during the process of labor and delivery. In many cases, birth injuries are preventable and result from a healthcare provider’s negligence or lack of training.

There are many different types of birth injuries that can lead to successful lawsuits. At Cohen, Placitella & Roth, P.C., we handle a wide variety of birth injury claims including those connected to brachial palsy, fractures, spinal cord injuries, cephalohematoma, and cerebral palsy.

Many different parties may be liable for birth injuries, including any healthcare provider present during the process of labor and delivery. For instance, an obstetrician or a midwife or a nurse may bear some responsibility for a birth injury.

Under Pennsylvania law, you have two years from the date of the injury to file a lawsuit. As such, it is extremely important to discuss your case with a personal injury lawyer in Philadelphia as soon as possible.

Many birth injury cases do involve a situation in which a healthcare provider’s negligence resulted in the baby’s injuries. However, there are some cases in which your physician or nurse may not be liable for injuries. Your Philadelphia birth injury attorney can assess your case and discuss your options with you.

Generally speaking, birth injuries can lead to two different types of compensatory damages: economic damages and non-economic damages. Economic damages provide compensation for specific losses such as hospital bills, surgeries, rehabilitative treatments, and medications. Non-economic damages are intended to provide compensation for more subjective losses, such as the infant’s loss of enjoyment of life of limited lifespan as a result of the birth injury.

Birth injury cases can vary in length, depending upon whether the defendant(s) will agree to an appropriate settlement or whether we will need to take your case to trial. A Philadelphia birth injury lawyer can discuss the specifics of your case with you. Regardless of the length of time your case takes, we will advocate for your right to compensation every step of the way.

Parents of children who are harmed during birth have a single pressing question: Will my child get better? The truth is that whether or not your child will improve, and whether or not they will be able to live a normal, healthy life depends entirely upon the extent of injury and the type of medical care and treatment they receive. Consider the following common birth injuries and outcomes:

Brachial Plexus Injuries

The brachial plexus is a collection of nerves in the shoulder. When it is impacted, the result can be weakness or paralysis of the upper arm, lower arm and hand, or both. In many cases, brachial plexus injuries will heal completely with time. Sometimes, surgery may be necessary. In severe cases, the child may suffer from long-term disability.

Fractures

A baby may suffer a fracture during the birthing process, most commonly a fracture of the clavicle. Fortunately, most infant fractures will heal completely with proper treatment.

Asphyxia

Asphyxia refers to the lack of oxygen to the child, and can have permanent consequences. Fetal asphyxia may lead to brain damage, causing permanent cognitive deficits and affecting educational achievements, behavior, and neuropsychological functioning.

In most cases, injuries to the brain or spinal cord are the most serious and have the most severe long-term consequences. In general, other injuries may heal fully, or may heal to the point that the child is able to live a full, happy, and mobile life.

Giving birth to a child with any type of disability is an emotional experience. Whether the disability is physical or cognitive, knowing that your child may be limited in their life as a result is a difficult thing to cope with.

What can be even more challenging is not knowing why your baby was born with a disability – Is the disability a natural defect, or did it occur as a direct result of a birth injury caused by negligence?

Did Your Doctor Inform You of the Disability Before Birth?

Technology these days is amazing, and the majority of disabilities and birth defects are known before the mother even gives birth. If you received ultrasounds and blood work during your pregnancy and a defect was suspected, the doctor was legally obligated to relay this information to you. As such, if your doctor told you before you gave birth that your baby would have a disability/birth defect, it is unlikely that the disability is the result of a birth injury.

Working with an Attorney

If you aren’t sure whether or not your child’s disability is the result of an act of malpractice/birth injury or a birth defect, you should contact an attorney. A consultation is completely free, and an attorney can help you to decide what actions to take next. In many cases, experts may need to be called upon to determine the precise cause of your child’s disability and rule out natural causes.

Birth injuries are tragic, leaving a child with disfigurement or disability that could be permanent. While not all birth injuries are preventable and may occur as a result of unpredictable factors that even the best medicine cannot remedy, most birth injuries should never occur. The following considers some things that physicians could do to prevent birth injuries from occurring:

• Better communication. Poor communication amongst the delivery team is one of the top causes of birth injuries in the U.S. Communication errors can result in a misdiagnosis, a failure to relay important information about a patient’s condition, or a medication or treatment error.

• Appropriate use of delivery tools. One thing that contributes to the prevalence of birth injuries is the inappropriate use of delivery tools such as forceps and vacuum extractors. While these tools can be helpful in certain situations, they should be used with caution.

• Better monitoring of mother and baby. The failure to properly monitor a mother and baby in order to detect for complications that could affect the birthing process and the baby’s health is a common cause of birth injuries. Blood tests, ultrasounds, heart rate monitoring, and more are all essential.

• Appropriate use of force. A common birth injury is an injury to the brachial plexus, the collection of nerves located in the shoulder. An injury to the brachial plexus is common when the baby become lodged in the birthing canal, and in order to remove the baby, the doctor tugs aggressively on the baby’s head, neck, arm, or shoulder. This excessive use of force is dangerous, and can have serious consequences.

If your child is the victim of a preventable birth injury caused by malpractice, our lawyers can help you prove it and recover compensation for losses.

It is important to know that if you are thinking about filing a medical malpractice lawsuit to recover damages for your child’s birth injuries, doing so involves a large commitment of time. This is especially true when a settlement cannot be reached out of court in mediation/negotiations, and therefore must be litigated.

Timeline for a Medical Malpractice Claim

Once you hire an attorney and the lawyer investigates your case and calls upon experts, the negotiations process will begin. This is when the attorney goes to the defendant’s insurer (most settlements come from a physician’s malpractice insurer) and demands recompense. The insurance can accept or counter.

This process alone can take months; gathering evidence and documents essential to your case is very time consuming. If a settlement cannot be reached, your attorney will file a lawsuit, engage in the discovery process, and re-negotiate. If settlement can still not be reached, your case will be litigated.

Timeline Once a Lawsuit is Filed

Once your lawsuit has been filed, you may need to wait months – or even up to two years or more! – in order for a court to actually hear your case. A trial generally lasts a day or two, but can be shorter or longer depending upon the details of your case and its complexities. In all cases, you must file your lawsuit within two years from the date of injury.

In short, knowing how long your case will take to settle or litigate is unknown. Once litigation begins, it may take less than a week. However, getting to the point of litigation could take months or years. It is best to meet with a medical malpractice attorney who can provide you with a better idea of how much time you should expect to commit to your claim.

One of the biggest deterrents to filing a lawsuit after a birth injury is the fear that a lawsuit will cost hundreds of thousands of dollars. When a parent is worried about their child’s recovery, this expense is the last thing that they want to deal with.

However, when you work with an attorney who charges on a contingency fee basis, you incur no upfront legal fees or charges. Here’s how it works:

Free Consultation

The process begins with a free consultation with no obligation to hire our law firm moving forward. During the consultation, you can ask any questions that you have, and we can learn more about your case moving forward. If you decide to hire us, then we will begin the next phase.

Investigation

Investigating a case and hiring experts takes time, resources, and money. At the law office of Cohen, Placitella & Roth, P.C. we handle all of these costs for you. We have the resources and experience that your case deserves, and will never ask you to pay for costs associated with an investigation or hiring of experts.

Contingency Fee

Our legal fees are contingent on your case being successful. This means that if your case is not settled in your favor, our lawyers are not paid. If you do receive a settlement amount, we will collect a percentage of your winnings (agreed upon in advance).

We never want your economic situation to prevent you from filing a claim when your child is injured. Contact our law office today to learn more.

Watching as your child is harmed as a result of a birth injury is traumatic for a parent. And while prioritizing your child’s care after injury should be at the top of your list, you should also start thinking about contacting a legal professional as soon as possible. In fact, if you are wondering when you should contact an attorney as a parent of a child with a birth injury, the answer is now.

Statute of Limitations for Medical Malpractice Claims

One reason why you should contact a birth injury attorney as soon as possible after your child is harmed is because the state’s statute of limitations on medical malpractice claims places a cap on the amount of time that you have to take action after an act of malpractice. In Pennsylvania, the statute of limitations is two years from the date of injury.

Gathering Evidence as Soon as Possible

In addition to ensuring that your claim is filed within the statute of limitations, another reason why you should meet with an attorney as soon as possible is that evidence critical to your claim can be preserved. After months or years, the full account of what happened and who was involved may become distorted, and medical records could even be lost or destroyed. When you hire an attorney, they will immediately begin investigating your case and working with other experts who can testify on your behalf. An attorney can also help you to determine early on whether or not your case is worth pursuing.

Birth defects form during a baby’s development within the womb. While some birth defects occur for unknown reasons or because of genetic factors, and may be unpreventable as such, others occur because of environmental factors, such as the developing fetus’ exposure to certain chemicals or medications.

Rate of Birth Defect in the United States

According to the U.S. Centers for Disease Control and Prevention (CDC), the rate of birth defect in the United States is one out of every 33 babies born, or about three percent of all live births in the country. The CDC also reports that birth defects are the leading cause of infant deaths, and account for ⅕ of all infant deaths.

Most Common Birth Defects

The CDC keeps records of the rate of each type of birth defect that babies are born with. That data suggests that the most common birth defects are:

• Central nervous system defects affecting the brain or spinal cord;
• Eye defects;
• Heart defects;
• Orofacial defects;
• Gastrointestinal defects;
• Musculoskeletal defects; and
• Chromosomal anomalies.

The CDC states that when it comes to birth defect prevention, taking folic acid, which is a type of B vitamin, can help to prevent neural tube defects. It is also important to avoid certain medications during pregnancy.

Like a birth injury, a physician may be held liable for a birth defect if they failed to exercise the proper standard of care when treating the mother. For example, if a doctor prescribed the mother a medication with a known connection to birth defects, and her baby was born with a defect as a direct result, the doctor may be held liable.

If your case goes to trial as a result of the inability to obtain an out-of-court settlement from the defendant, the jury will be responsible for determining whether or not the physician in your case should be held liable for your harm.

The jury’s job is determine whether or not the defendant breached the accepted medical standard of care. The medical standard of care is the level of care that another doctor of the same training would execute in a similar circumstance. If a doctor failed to use the skills, knowledge, and care in treatment of a patient that another doctor would use, they have committed an act of malpractice. In order to determine whether or not this breach occurred, the jury will turn to experts’ opinions.

The Value of Experts’ Opinions

In a medical malpractice case, one of the most valuable types of evidence is that of opinions of experts. A jury will ask to hear testimony from other medical professionals who can speak to the duty of care and whether or not, in their expert opinion, the duty of care was breached. Because jury members will unlikely have any medical training or familiarity with the standard of care during the birthing process, their opinions will be formed by the testimonies of experts.

Keep in mind that the person (physician) who testifies at trial does not need to be the same doctor who supplied testimony in the Certificate of Merit submitted to the court. You may call multiple experts to the stand to prove negligence. It is essential that you choose an expert to testify who has the appropriate background and education, training, knowledge, and experience to provide expert testimony that is credible.

While birth injuries are not common, when they do occur, the outcome can be tragic for the affected children and their families.

Rate of Birth Injuries

According to data collected in 2010 (the most recent year for which data is available), the rate of birth trauma in the United States ranges between 0.2 and 37 per 1,000 live births. Other sources state that the incidence of serious birth injury is six to eight per 1,000 live births, resulting in two percent of neonatal deaths and stillbirths.

The three most common birth injuries in the original study, which was published in Paediatric Perinatal Epidemiology, were injuries to the scalp, other injuries to the skeleton, and fracture to the clavicle.

Risk Factors

There are a number of factors that increase the risk of a birth injury. Some of these factors are controllable, and include:

• The weight of the infant – an infant who is larger than normal, particularly those who weigh more than nine pounds, have an increased risk of birth injury. Birth weight may be affected by the mother’s health, and gestational diabetes could have an effect.
• The use of instruments during the birthing process, including forceps and vacuum extractors. 
• The baby being in the breech position.
• Abnormal traction during the delivery process.

You should talk to your doctor about the above risk factors before your delivery and be aware of the risks. If your child does sustain a birth injury that is the result of your doctor’s negligence, you may be able to pursue a civil action for damages.

Before a parent files a lawsuit to recover compensation for harm caused to their child during the birthing process, the parent wants to know what their chances of success will be. The crux of a birth injury case is being able to prove that, whatever harm has been done to your baby, the harm occurred as a direct result as a medical provider’s error and deviation from the medical standard of care.

There are four components of a lawsuit that must be established in order to be successful. If one of these criteria is not satisfied, the lawsuit may be unsuccessful.

1. Existence of duty of care – Which is implied if the defendant was indeed your obstetrician;
2. Breach of duty of care – This breach is that of the medical standard of care. Other doctors will need to testify to prove that the defendant acted in an unreasonable manner.
3. Causation – You must prove that the breach of duty of care was the direct cause of your child’s birth injuries.
4. Damages – It is important to demonstrate the full extent of damages that your child has incurred.

It is impossible to know if a lawsuit will be successful in advance. However, seeking a free consultation with a birth injury lawyer can be helpful; an attorney can assess your case and provide an idea of what your chances are of recovering damages. An attorney will also consult with medical experts who can provide an opinion on whether or not the doctor acted negligently (in fact, to even file a malpractice claim in Pennsylvania, a Certificate of Merit must be filed, which is a document that contains a physician’s sworn testimony that, in their opinion, negligent more likely than not occurred).

If your child has suffered a birth injury and you are thinking about pursuing a civil action on your child’s behalf to recover compensation, you surely want someone on your side whom you can trust. As you begin the process of looking for an attorney, here are some important things to weigh:

Experience

Perhaps more than anything, you want an attorney who is experienced in birth injury law handling your case. What’s more, if you can find an attorney who has handled a case involving the same type of birth injury that your child suffered, this is even more ideal.

An experienced attorney will not only know how to gather evidence and build your claim, as well as how to file your claim and navigate the legal system, but will also have developed effective negotiation skills that may be essential during the settlement process.

Compassion

Can you imagine working with an attorney who didn’t have compassion for your child and your family? An attorney without compassion will not have the drive and gumption that it takes to pursue your case tirelessly and advocate to get you the full amount of compensation possible. A compassionate attorney cares about what you’re going through and wants to put your needs first.

Legal Fees

If you’re a parent who is caring for a child with a birth injury, our guess is that you don’t have millions of extra dollars that you’re ready to commit to a lawsuit. At the law offices of Cohen, Placitella & Roth, P.C., we charge on a contingency fee basis so you never have to worry about how you’ll afford our services.

Birth injuries occur more often than they should – which is never – in the United States. A lawsuit for a birth injury may be appropriate when a medical professional’s deviation from the accepted medical standard of care leads to harm. The medical standard of care is the same degree of care that a reasonable professional of the same training would exercise in a similar situation. Some common situations that may lead to injuries and give rise to a lawsuit include:

• An obstetrician failing to monitor a mother and baby’s vital signs;
• An obstetrician failing to perform a cesarean section when an emergency, such as the umbilical cord becomes wrapped around the baby’s neck, warrants one;
• A medication administration, dosage, or type error;
• A nurse’s failure to record import medical data about the patient, leading to an error;
• An obstetrician’s excessive use of force during delivery, i.e. using forceps or a vacuum extractor without cause or improperly; and
• A doctor’s failure to respond appropriately to a situation in which either mother or baby are displaying signs of distress.

Do I Have a Case?

An attorney should review your case in depth, and consult with medical professionals to determine whether or not a doctor acted within the accepted standard of medical care, or deviated from the standard of care in an act of negligence. If you think you have a case, you will need to prove that the deviation from the standard of care was the proximate cause of your child’s harm. Our attorneys can help.

If you are pregnant and are planning to give birth sometime in the next nine months, you are surely excited about what the future will bring. You also most certainly want to protect both your health and the health of your child, and are curious about what you should do to guarantee the best medical experience possible. Because medical malpractice during gestation and delivery is too common, consider these important things that you can do to prevent an act of malpractice:

Ask Questions

Don’t be afraid to ask questions about what’s going on or what you should expect. If something’s off or you’re not feeling well, talk to your doctor and don’t accept their dismissal of your concerns. Always ask for a thorough explanation for any symptoms that you are having, and don’t be afraid to get a second opinion.

Check Out Your Doctor in Advance

Before you decide upon an obstetrician to aid you in the birthing and delivery process, make sure you do a check on your doctor’s background first. If your doctor has been named in a medical malpractice suit or has been penalized before the state board in the past, you should rethink your choice. Further, talk to your doctor about their experience with difficult births and ask them to share some success stories with you.

Have a Plan and Know What to Expect

When doctors are busy with multiple patients, you could get overlooked. This is why it is essential that you know what to expect during the process so that you can identify when something is wrong and call a nurse or doctor for help.

Birth injuries and birth defects are both tragic events that can have a huge physical or cognitive effect on a newborn child and development. Because both can be traumatic and usually are discovered at birth, the two terms are often confused and used interchangeably. However, a birth defect and a birth injury are very different.

Defining a Birth Defect

Birth defects are problems that occurs when the baby is developing within the mother’s uterus. Birth defects are physical, and can affect both the body’s function and ability or the body’s appearance.

Birth defects can be caused by a number of factors. MedlinePlus.gov explains that birth defects are often caused by:

• Exposures to certain medicines;
• Exposures to certain chemicals;
• Lack of essential nutrients, like folic acid; and
• Genetic factors.

What Is a Birth Injury?

Unlike a birth defect which occurs during development, a birth injury is sustained at birth. These injuries can be severe or minor; in fact, many newborns sustain very slight injuries at birth that do not lead to any long-term problems. The risk of a birth injury is higher when:

• The baby is larger-than-average;
• The baby is in the breech position;
• The umbilical cord becomes wrapped around the child’s neck;
• The mother has health complications, such as preeclampsia; or
• The doctor uses excessive force, forceps, or a vacuum extractor to remove the baby.

Sadly, many birth injuries would not occur but for an act of negligence on the part of a medical professional. Similarly, many birth defects are also completely preventable.