Birth-related medical malpractice can have devastating consequences for a family and their newborn, who may suffer lifelong complications. This article explains what you need to know if you suspect medical malpractice.
What is a Birth Injury?
Birth-related medical malpractice cases are usually the result of a negligent doctor, staff member, or hospital, whereby their actions either cause injury to the mother or the child during pregnancy or delivery.
Common injuries to the mother include neglecting to control excessive blood loss post delivery, or, for an infant, negligently failing to monitor the baby’s oxygen intake before and after the baby has been delivered.
Below we examine 2 other types of birth-related injuries, wrongful birth and wrongful pregnancy, which are rare, and can be more challenging to understand.
Wrongful Birth (or Wrongful Life)
Wrongful birth, also known as wrongful life, occurs when the parents claim the doctor neglected to warn them about an impending birth defect, that had the parents known about, they would have either avoided the pregnancy or terminated the pregnancy before the mother came to term.
This kind of claim can arise if negligent genetic testing was performed on the two parents before conception, or if a doctor or staff member failed to detect physical or mental disabilities during the early stages of pregnancy, and had the parents known, they might not have carried the child to term.
Damages for these types of claims in Louisiana are controversial. The Louisiana Supreme Court has held that when a physician knows or should know of existence of unreasonable risk that a child will be born with a birth defect, he owes a duty to the unborn child as well as to its parents to exercise reasonable care in warning parents.
The law allows recover for expenses incurred during pregnancy and delivery, the mother’s pain and suffering, the father’s loss of consortium, service and society, and the emotional and mental distress associated with the birth of an unplanned and child and the unexpected restriction upon their freedom to plan their family. However, the law does NOT allow recovery for the damages the child will endure for having the underlying birth defect, nor for the economic costs of rearing an unplanned child. The Supreme Court states “These are the ordinary vicissitudes that befall any family with the birth of a healthy, normal child. Absent unusual circumstances, a child is presumed to be a blessing not offset by the inconvenience of redistributing the family income and patrimony which her or she may occasion.”
Similarly, parents that have purposefully avoided pregnancy can bring action against negligent doctors, staff, and hospitals, in the event that a woman becomes pregnant despite sterilization, pregnancy testing, or abortion.
In this case, the child is typically born healthy, but the parents seek damages because they did not intend to conceive a child. The types of damages that can be awarded in these cases vary on a case-by-case basis.
However, it’s common for parents to be awarded the cost of any medical expenses associated with giving birth, plus any lost wages.
Filing a Medical Malpractice Lawsuit
In a case where the baby suffers an injury, the parents are the ones who bring the lawsuit on behalf of their child. In Louisiana, birth injury claims must be filed within one year of the injury. If an injury is not discovered within that year, no more than three years can pass before filing a lawsuit.
Also keep in mind that Louisiana caps Medical Malpractice damage at $500,000. However, this does not include future medical expenses, which are often a part of birth injury cases. When patients suffer long-term health issues as a result of medical malpractice, they are eligible to receive additional compensation for medical expenses and long-term care.
Were you Affected by a Birth Injury?
Birth related injuries and medical malpractice law are complicated, as well as a sensitive issue for suffering families. We empathize with what you’re going through and offer free, confidential consultations. So if you have any questions about your situation, or if you suspect medical malpractice, we at the Monroe Law Office of J. Antonio Tramontana, want to hear from you.
For a free review, please fill out the form on this page, or call me directly at (888) 982-1290.