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Filing a Birth Injury Case

A baby who suffers injuries at or around the time of birth due to medical or nursing negligence can suffer serious and permanent disabilities.  Birth injuries can occur from improper prenatal care or care during the labor and delivery process. Birth injuries are devastating because they may result in permanent physical, cognitive, psychological, and social consequences. A birth injury often results in a child needing extensive medical care and supervision for life. According to the Centers for Disease Control and Prevention, birth injuries affect one in every 33 babies (about 3 percent of all babies) each year in the United States.

There are many different types of birth injuries that a baby may suffer as a result of the negligence of a health care provider. A common type of birth injury is a hypoxic-ischemic brain injury due to lack of oxygen and blood flow to the brain during the labor and delivery that results in cerebral palsy.  Various terms are used to describe this type of injury such as birth asphyxia, perinatal asphyxia or hypoxic ischemic encephalopathy. Another common birth injury is due to direct trauma to the baby’s head resulting in brain bleeding and skull fractures.  Another type of injury is a brachial plexus injury. The brachial plexus, a group of nerves that control the shoulder, arm, and hand, can be injured by a physician during delivery when a baby’s shoulder becomes impacted on the mother’s pubic bone. A brachial plexus injury can result in complete or partial paralysis of the arm. There are many other types of injuries besides hypoxic ischemic brain injuries, traumatic brain injuries and brachial plexus nerve injuries that occur before and during the birthing process.

Just as there are many different types of birth injuries, there are many different reasons for the birth injuries that are caused by a health care professional.  For example, a physician or nurse can fail to recognize signs of decreased oxygen in the baby on the fetal monitor strips during labor and there is a delay in performing a C-section. There may be a lack of communication or miscommunication between the physicians and nurses about changes in the mother’s or baby’s condition. A physician can also injure a baby by using excessive force during the delivery or improperly applying forceps or a vacuum to the head to assist in birth.

Regardless of the type or cause of a birth injury, the impact is devastating and costly. A severely injured baby or child will need ongoing medical care and possibly many surgeries. Around the clock care from a registered nurse or certified nursing assistant is often necessary. There will likely be a need for regular and ongoing physical therapy, occupational therapy, speech therapy, and developmental therapy. There may be a need for handicapped-accessible housing and transportation.  There are costs associated with special medical and educational equipment. The goal of any lawsuit for a birth injury is to provide the resources for the child and his or her family for the services that are so critical and necessary for optimal care and development.

Sometimes a birth injury is evident at the time of birth with a baby needing immediate resuscitation and transfer to the Neonatal Intensive Care Unit.  Other times, a birth injury takes longer to recognize and only becomes apparent as a baby fails to meet developmental milestones. Every state has applicable laws that apply as to how soon a case must be filed after a birth injury. Generally, in Illinois, you have eight years to file a medical negligence claim for a birth injury, (735 Ill. Comp. Stat. Ann. § 5/13-212(b), on behalf of your baby. This time frame is longer than the normal two years for most medical malpractice cases involving adults.  However, there may be special circumstances and exceptions in a particular birth injury case that may shorten or extend the 8-year time limit. Thus, if you suspect your baby or child has suffered a birth injury, you should contact an attorney immediately to determine the time limit to file a lawsuit. A delay may forever bar you from seeking a recovery for your child.

It is important to note that not all birth injuries are the result of medical or nursing negligence. There are times when, despite the best efforts of a health care provider, an injury occurs to a baby. If you suspect your baby or child has suffered a birth injury, it is important to do a review of the circumstances surrounding the birth. 

© 2020 by Clifford Law Offices PC. All rights reserved.National Law Review, Volume X, Number 262
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