What is a birth injury? Birth injuries are different from birth defects or other conditions a baby might be diagnosed with shortly after birth.
Birth defects or malformations are usually due to genetics or changes that occur early in pregnancy; they are not caused by anything that happened during or around the delivery.
Birth injuries are the result of trauma or an “adverse event” that occurs before, during, or right after birth.
How Can a Georgia Birth Injury Attorney Help?
Helping your child with a birth injury can be very challenging. You want your child to have the support they need and the best opportunities in life.
They may require surgery, medication, and various kinds of therapy, such as speech or physical therapy. In some cases, children with birth injuries may need lifelong care.
All of these treatments can be expensive, and some parents struggle to afford the support and healthcare their infant needs after a birth injury. At the same time, parents may struggle with wondering what caused their child’s birth injury and if it could have been prevented.
Unfortunately, some parents blame themselves even if the circumstances of the birth injury were most likely beyond their control. Sometimes birth injuries are just the result of bad luck, but in other cases, the doctor or medical staff may have made an error that contributed to the injury.
It can be confusing to wonder if your doctor or healthcare provider is responsible for your child’s condition. You may have been told what happened, but not why it happened.
Was your doctor at fault, or was this simply a situation no one could have prevented? A Georgia birth injury lawyer can help you sort it out.
Your lawyer will start by reviewing the medical records for your child’s birth and any subsequent medical treatment the child has needed since then. If you have these records already, it can help speed up the process.
The OB/GYN who delivered the baby should be able to provide copies upon request, although in some cases, they may charge a small fee for copying/mailing. You do not need to explain why you need the records.
How Do Birth Injuries Occur?
There are multiple possible causes of birth injuries, but we most commonly see cases where the doctor used instruments like forceps or vacuum in the delivery. Other potential causes include:
- The position of the baby. Sometimes the baby is positioned in a way that is not conducive to a safe delivery. A doctor or midwife may try to reposition the baby, but if this doesn’t work, a cesarean delivery is usually the best option.
- Premature birth. If the baby is born early, it may be smaller and more prone to injury.
- Cephalopelvic disproportion. This means that the baby’s head is relatively large compared to the pelvis, and a vaginal birth could be dangerous.
- Prolonged or difficult labor.
What Are the Most Common Birth Injuries?
This is not an exhaustive list, and if you’re curious if your child’s condition is a birth injury, we recommend speaking to a Georgia birth injury attorney. But here are some of the more common injuries from birth trauma:
- Brachial palsy. This refers to nerve damage that affects the baby’s use of an arm or hand. Most frequently, it happens because there is difficulty delivering the baby’s shoulder, known as shoulder dystocia. Recognizing and treating brachial palsy early is important – the baby will need special exercises to keep the arm’s range of motion intact while the damage heals. Unfortunately, in some cases, there is permanent nerve damage, and the child may suffer lingering difficulties with using the arm or hand.
- Facial paralysis. Similar to brachial palsy, facial paralysis usually occurs when the facial nerves are damaged during birth. Sometimes damage happens simply due to the pressure in the birth canal, but in many cases, we find the facial nerves are damaged due to a doctor’s use of forceps or other instruments.
- Fractures. It can be hard to imagine a tiny baby with a broken bone, but unfortunately, fractures sometimes happen during birth. The most common scenario is a fracture in the collarbone or clavicle – again, usually caused by shoulder dystocia or breech delivery.
- Hypoxic brain injury. Also called Hypoxic-Ischemic Encephalopathy (HIE), this condition happens when circumstances during the delivery prevent the baby from getting enough oxygen to the brain. Lack of oxygen leads to damage in the motor cortex, which can cause cerebral palsy, periventricular leukomalacia, or other difficulties.
- Periventricular leukomalacia (PVL). This condition results from the death of white matter or brain tissue, leading to damage in the periventricular area of the brain. In addition to motor function difficulties, the baby could develop challenges with learning later in life.
- Intracranial hemorrhage. Most common in premature infants, this refers to bleeding in the brain. One common cause is fetal stroke due to an issue with blocked or damaged blood vessels, but any significant head trauma during birth can also cause a brain bleed. Mild cases may resolve on their own, but in some situations, the baby could suffer permanent damage in the part of the brain where the bleeding occurred.
- Cerebral dysgenesis. A condition that causes abnormal development of the brain, cerebral dysgenesis often develops during pregnancy. However, it can also arise from head injuries sustained during or right after birth.
Understanding Medical Malpractice Laws in Georgia
In any personal injury case, it is necessary to prove several criteria to show the defendant was negligent:
- The defendant had a “duty of care” toward the plaintiff (the person pursuing a claim). The definition of “duty of care” varies with different types of personal injury cases. In medical malpractice cases, Georgia law requires a person practicing medicine to use a “reasonable degree of care and skill.”
- The defendant failed in this duty of care – in this situation, they failed to exercise a reasonable degree of care and skill.
- The plaintiff suffered injuries as a result of this failed duty of care. It’s necessary to show that the injuries were directly caused by the plaintiff’s lack of reasonable care and skill.
- The plaintiff sustained damages (medical bills, pain, and suffering, permanent disability, etc.) as a result of these injuries.
The plaintiff in a birth injury case is usually the injured child, but as a parent or legal guardian, you can file a lawsuit on their behalf. However, in some cases, the parent who gives birth also suffers injuries due to medical malpractice and might be a plaintiff.
What is Georgia’s “Expert Affidavit” Requirement?
In the last section, we talked about the duty of care for healthcare providers and how they are expected to use a “reasonable degree of care and skill.”
But how does a court determine if a doctor has used a reasonable degree of care and skill? The judge and jury probably aren’t medical experts.
The standard is that the healthcare provider must use a degree of care and skill similar to what another provider in the same specialty would use when faced with the same situation.
Georgia law requires that anyone filing a complaint of medical negligence include an “expert affidavit,” signed by at least one medical expert, explaining at least one negligent act or omission committed by the defendant based on this criteria.
If your lawyer sees evidence of possible malpractice when reviewing your records, they will consult with a medical expert who can speak authoritatively on the subject of OB/GYN care.
If this expert agrees that the healthcare provider failed to use reasonable care and skill at least once during the birth, they can supply the expert affidavit needed to begin your lawsuit.
What Happens Next in a Birth Injury Lawsuit?
Personal injury lawsuits often move slowly at first, and most are not resolved in a trial. We will request evidence from the other party and their attorneys in a process called “discovery.”
This may involve reviewing records or interviewing witnesses in a deposition. While these steps are going on, we may negotiate with the other party’s lawyer or, in many cases, their insurance company. (Most healthcare providers carry malpractice insurance.)
Once the other party or their insurance carrier realizes there is significant evidence of malpractice, they are usually willing to negotiate a settlement rather than continue to a trial.
The negotiation process may also take time. Often we receive several offers before reaching a resolution that everyone agrees to.
We will discuss every offer with you, explain the terms, and answer any questions you have, but the decision is ultimately yours. However, we will tell you if we believe a larger settlement is possible or if an offer does not fully cover all your damages.
In most cases, we eventually achieve a settlement that makes the client happy, but in a few situations, it’s necessary to proceed to trial.
How Long Do You Have to Find a Georgia Birth Injury Lawyer and File a Lawsuit?
In Georgia, the statute of limitations for medical malpractice claims is two years from the date of injury, with a “statute of repose” of five years. This means that in some cases, patients may have more time due to circumstances.
The statute of repose is typically used in cases where the injury does not become apparent to the patient right away or isn’t properly diagnosed immediately.
Georgia law specifies that if a minor child is a victim of malpractice, and the treatment occurred before they were five years old, they can bring a lawsuit up until their seventh birthday.
For instance, if your child suffered brain damage from a hypoxic brain injury during birth, the extent of the brain damage may not immediately be obvious. It could take years before the child is diagnosed with developmental delays or cognitive difficulties due to this brain damage.
Even if your child doesn’t meet certain milestones on time, your pediatrician might not be able to make a firm diagnosis until more time has passed, more milestones have been missed, or the child has been evaluated by an expert.
As a result, some parents don’t become aware of the permanent injuries their child has sustained for several years after birth.
There is another exception for “foreign body” cases, or situations where a healthcare provider leaves a foreign body inside a patient during surgery. Georgia allows one year from the date the patient learns the foreign body was left inside them to file a lawsuit regarding the error.
This could apply if you gave birth via cesarean and suffered unexplained pain or symptoms until finding out a foreign body was not removed during the surgery.
Finally, if there is evidence that a medical provider deliberately concealed information to hide an act of malpractice, this “stops the clock” on the statute of limitations until the patient has learned of the fraudulent concealment.
Regardless of the specific limits mentioned in this section, it’s always better to speak with a lawyer sooner rather than later.
Gathering evidence to support your case and working with a medical expert can take time. If you’re wondering whether you or your child suffered a preventable birth injury, please contact a Georgia birth injury lawyer as soon as possible to learn your options.
How Can You Get Help From a Georgia Birth Injury Law Firm?
Please contact the CEO Lawyer Personal Injury Law Firm for a free consultation. Our experienced birth injury lawyers will review your case and contact a medical expert if more help is needed.
We’ll then explain your options for pursuing a claim and answer any questions you have. If we take your case, you won’t owe us anything until we win or settle it, so there is no need to worry about upfront costs.
Attorney Ali Awad founded the CEO Lawyer Personal Injury Law Firm to help those who have been injured by the negligence of others. He soon transformed it into one of the fastest-growing law firms in the country.
When he’s not negotiating a deal for his clients or fighting for them in court, he can be found on social media, dispensing common-sense legal advice to more than a million followers.
Call the CEO Personal Injury Law Firm at 888-307-3792 today.
