Birth Injury

A birth injury is an injury to a mother or baby that occurs before, during, or shortly after childbirth. Serious birth injuries are rare, but when they occur, they can cause devastating effects that may require a lifetime of treatment. If these injuries were due to the medical malpractice of a doctor, nurse midwife, nurse, or any other healthcare provider, the child and/or their family may be able to bring a lawsuit.

Separate from their babies, mothers can suffer serious injuries during pregnancy and childbirth. These injuries can include untreated preeclampsia, uterine rupture, infection, complications from a cesarean section, complications from anesthesia, failure to deliver all fetal tissue (called retained products of conception), and uncontrolled bleeding. These may not only cause pain and injury to the mother, but they could also prevent the ability to have future children or increase risks of harm in future pregnancies. In situations where the medical malpractice of a medical provider caused a preventable injury to a mother during pregnancy or childbirth, she and her family may have a claim for medical malpractice.

Sometimes a birth injury may be due to the natural forces of labor and delivery. However, sometimes they are caused by medical malpractice committed by a doctor, nurse midwife, nurse, or other medical provider. 

Because the labor and delivery process, by its nature, places stress on both the mother and the baby, medical providers must be extremely diligent and careful when tending to the mother and baby. Although there are times when the baby and mother are injured through no fault of a medical provider, there are times when, unfortunately, the medical provider’s failure to provide appropriate medical care causes serious injury. 

Birth injuries can be caused by: 

• Failing to monitor the mother and baby appropriately
• Failing to deliver the baby in a timely manner
• Failing to deliver the baby via cesarean section
• Improper use of medications during labor and delivery
• Improper care during the actual delivery
• Improper resuscitation of the baby at birth
• Improper care post-delivery (in the maternity ward or NICU)

Separately, in some cases, a baby may suffer prematurity-related issues, infection at birth, brain injuries due to a reduction or deprivation of oxygen, and physical deformities and disabilities due to medical negligence. Sometimes these injuries are predictable and, therefore, avoidable if the medical provider acts within the standard of care during a mother’s pregnancy. 

Although there are many types of injuries that babies can unfortunately suffer, two severe injuries that can result from negligence during pregnancy or childbirth include permanent brain injury due to oxygen reduction or deprivation, leading in some cases to cerebral palsy, or injuries to the baby’s arms or shoulders - called a brachial plexus injury or Erb’s palsy. 

If a medical provider was negligent, the injured patient may be able to bring a medical malpractice claim against them.

To prove that a patient’s injuries were due to a medical professional’s medical negligence, the patient must prove that:

1. The medical provider owed a professional duty to the patient;
2. The medical provider breached that duty (a breach of the standard of care);
3. The patient’s injury was caused by that medical provider’s breach; and
4. The patient suffered damages as a result of that breach.

In Delaware, even before a claim is filed, the injured party needs to retain a qualified medical expert who can support the claim. These experts will evaluate whether the failure to comply with the standard of care (also called a “breach” or “violation” of the standard of care), or the patient’s injuries that resulted, was due to medical negligence. Thus, to pursue a birth injury claim successfully, it is critical to hire attorneys who can retain competent and qualified experts. 

A birth injury may cause life-long needs for the child and their family. Those needs may include significant costs for around-the-clock care. The injured party may also be entitled to compensation for emotional distress, lost wages (including lost future earning capacity), and medical expenses for treatment, procedures, and equipment. 

Compensation received from a medical malpractice claim can help the injured party and his or her family pay for future medical treatment to improve the quality of life for the child and their family. This may include future:

• Nursing care
• Physical therapy, occupational therapy, speech therapy
• Medication
• Mobility aids and adaptive equipment
• Surgery
• Special education costs
• Other related expenses

A statute of limitations is a law that limits how long a person has to file a lawsuit. In Delaware, in most situations, an injured person has two years from the date of the medical provider’s negligence to file a medical malpractice claim. There are situations where the timeframe may be extended, but those are rare. To make sure your claim is filed timely, it is important to speak with an attorney as soon as possible. 

The lawyers of Morris James have been fighting for victims of negligence in Delaware since we opened our doors in 1932. We deal with lawyers and insurance companies so that you can focus on healing. Our birth injury attorneys, who represented healthcare providers for many years in medical malpractice cases, know the strategies used to defend healthcare providers and how to combat them. We will fiercely advocate for our clients, going to trial when necessary, to obtain the financial compensation that you and your family need to regain stability and security after a birth injury.

To understand prolonged labor, it is important to understand the different stages of labor. 

When a mother is in the first stage of labor, there are two phases: the latent phase and the active phase. During the latent phase, contractions typically become more frequent and stronger. During this process, the cervix begins to open and thin out. The second phase of the first stage of labor (also called the active phase) occurs when the cervix opens from 4 to 7 centimeters. During this time, contractions become longer, stronger, and more frequent. 

During the second stage of labor, a woman’s cervix is completely open and the mother typically begins to push the baby for delivery. Typically, the second stage is shorter than the first stage and may take between 30 minutes and three hours (depending on a number of factors, including the number of prior pregnancies).

During the third and final stage of labor, a mother will deliver the placenta (the organ that nourishes the baby during pregnancy). This stage typically lasts just a few minutes. 

Prolonged labor typically occurs in the first or second stage of labor, and it can have a number of different causes. Generally speaking, prolonged labor may occur during any phase of labor when: 

• A mother’s contractions are weak
• The baby is in the incorrect position
• Certain medications act to delay labor
• The baby is too large to pass through the birth canal
• The mother’s pelvis is too small to allow the baby to be delivered
• A mother is significantly stressed, exhausted, or anxious

In those situations, the healthcare providers need to recognize the issue and treat the mother and baby appropriately so that the baby can be delivered safely. 

When a woman’s labor is prolonged, the healthcare providers should evaluate the potential causes and treat those in a timely manner to protect the mother and baby. That may require that the healthcare team move to prompt delivery to avoid harm to the mother and baby. If the healthcare team fails to recognize a prolonged labor, the mother or baby can suffer injuries.

Healthcare providers can use different methods to attempt to expedite labor and delivery. Those include:

• Allowing the mother to rest for a period
• Encouraging movement like walking or changing positions 
• Administering prostaglandin hormone or oxytocin (Pitocin) to stimulate contractions
• Rupturing a woman’s membranes artificially (i.e., causing a woman’s “water to break”)

If one or more of these interventions is attempted, the healthcare team must monitor the mother and her baby continuously. That way, the healthcare providers can make sure that the baby and the mother remain safe. If there are any potential warning signs that the baby or mother cannot tolerate ongoing labor, the healthcare team must recognize that, and change the delivery plan to expedite the baby’s delivery. That may require the healthcare providers to proceed with a C-section to minimize the risk of injury to the mother and baby. A medical provider’s failure to monitor and assess delivery options at this stage could constitute medical malpractice.

In situations where a mother is experiencing prolonged labor, the healthcare providers need to monitor the mother and baby carefully. It is important for the healthcare providers to monitor the mother’s contractions (both in frequency and strength), the mother’s vital signs, and the baby’s heart rate and responses to labor. When prolonged labor persists despite interventions, the health of the mother or baby may be at risk. A failure to monitor when indicated can cause significant injuries to the mother and her baby and may be evidence of medical malpractice. 

Prolonged labor increases the risk of certain injuries to the mother, including:

• Postpartum hemorrhaging (or bleeding following childbirth)
• Obstetric trauma (injuries to the mother)
• Infections

Prolonged labor also increases the risk of complications for the baby, including: 

• Admission to the neonatal intensive care unit (NICU) 
• Low heart rates
• Low muscle tone
• Decreased reflexes
• Difficulty breathing
• Blue skin color

These are potential signs of decreased blood flow and oxygen to the baby’s brain and vital organ systems. If these persist long enough during a prolonged labor, a baby can suffer a brain injury that can cause significant motor and cognitive delays or even death. Click here to read more about birth injuries a baby can suffer when medical providers commit medical malpractice.

One type of brain injury that a baby can suffer as a result of prolonged labor is cerebral palsy, or CP, which is a neurological condition caused by a lack of oxygen and blood flow to the brain. If a child has CP, the child can develop impairments in motor skills, muscle tone, and movement. The child may also have learning disabilities, cognitive impairments, issues with speech, lung issues, low bone density, and limited vision or hearing. Unfortunately, while medical providers can offer treatments for CP, there is no known cure for it. When a child has CP, the child may have to live with lifelong complications. 

Given the severity of this condition, it is crucial that the delivery team monitor the mother and her baby during delivery carefully so that, if there is a prolonged labor, the team can intervene and deliver the baby timely and safely. If the healthcare providers fail to recognize and intervene appropriately to protect the health and safety of the mother and baby, and if they are injured, the medical providers may have committed medical malpractice. 

The delivery of a child should be a wonderful experience. But, when a woman has a prolonged labor, and when she or her baby are injured, it can be emotionally traumatizing, and the family may now face significant medical costs associated with care and treatment of the injured child. 

If you think that the healthcare team that treated you and your baby allowed your labor to progress too long, and if you think that caused an injury to you or your child, you should consider speaking to an attorney to determine whether you have a claim for medical malpractice. An experienced medical malpractice lawyer that has handled cases involving birth injuries can investigate your case, work with experts to support your claim, and fight to get you and your family answers and compensation to cover all expenses and costs.

EFM can monitor the baby’s health during labor by continuously recording the fetal heart rate. The fetal heart rate pattern is important to assess because it can help determine if the fetus is getting enough oxygen during labor and delivery. When a baby is deprived of sufficient oxygen, the baby can suffer injuries to his or her organs, including the brain. Brain injuries occurring during labor and delivery can be permanent, and significantly alter that child’s life. Cerebral palsy, for example, is a motor disability that a child can develop if they did not get enough oxygen during labor and delivery. 

EFM not only monitors the baby’s fetal heart rate. It also monitors and traces the mother’s uterine activity, continuously showing the mother’s contractions, including how long they last and how strong they are. The mother’s contraction pattern is important information that the medical providers need to watch closely. When a mother has a contraction, it can briefly disrupt blood flow to the baby, decreasing the amount of oxygen they receive. While some disruption of the blood flow to the baby is normal, sometimes a contraction can cause a prolonged disruption of blood and oxygen to the baby. The medical providers should also closely monitor the mother’s contraction pattern to make sure the contractions are frequent and strong enough to deliver the baby. If they are not, the mother may need medications to augment labor so the baby can be delivered safely. 

For these reasons, the medical providers are required to closely watch how the baby’s heart rate responds to the mother’s contractions. If the baby is not responding well to the mother’s contractions, or the labor more generally, the medical providers must take action to protect the baby, which may include abandoning the plan for a vaginal delivery in favor of a Cesarean section. If the medical providers do not act quickly, or fail to appreciate the information provided by EFM, they may cause serious injuries to the mother and/or baby. In that case, the medical providers may also be guilty of medical malpractice. 

Unfortunately, there are situations where the medical team fails to appropriately use or interpret EFM. When this occurs, the medical providers may be guilty of medical malpractice, and can be held accountable for the injuries their negligence causes. There are many examples of cases where medical providers commit malpractice related to EFM. A few examples are discussed here. 

Malpractice can occur if the medical provider implements EFM but fails to check the monitoring frequently enough to ensure that the baby can tolerate labor. The frequency with which a medical provider must review the EFM to assess the baby’s well-being depends on the situation. But more frequent reviews are required if the mother is high-risk or given medication to induce or augment labor. More frequent reviews are also required once the mother enters the second stage of labor and begins pushing. Typically, the medical providers are able to assess the EFM strips, showing both fetal heart rate and uterine activity, in the labor and delivery room as well as elsewhere in the hospital. Thus, medical providers should have easy access to this information and should have no excuse for not watching it closely.

Malpractice can also occur if the medical providers fail to accurately interpret the EFM. EFM is not easy to interpret, but medical providers are trained how to do so, and are required to interpret EFM accurately so that the mother and baby do not suffer a preventable injury. In some cases, the medical providers fail to appreciate that the baby is not responding appropriately to the stresses of labor and allow the labor to progress. If the EFM shows that the baby is not responding appropriately, but the medical team allows labor to progress, the baby can suffer injuries. 

Another example of medical malpractice related to EFM is where the medical providers accurately interpret the fetal monitoring strip, but fail to appropriately act in response to the information provided by EFM. There are certain patterns medical providers are trained to look for on the EFM, and when those patterns are present, a plan needs to be put in place to respond quickly and appropriately. The response may be providing the mother IV fluids or supplemental oxygen, or repositioning the mother. If those measures do not result in a better fetal heart rate pattern, or if they indicate that the baby is not otherwise tolerating labor, the medical providers need to quickly recognize it and may need to plan for an emergency Cesarean delivery. When medical providers fail to institute these measures in response to worrisome findings on EFM, they may commit medical malpractice. The medical providers may also commit malpractice if they delay intervention, or mistakenly believe that the information provided by EFM suggests that the baby is tolerating the stresses of labor when, in fact, the baby is not and suffers an injury. 

If you or your child suffered an injury at birth, you should certainly discuss the next steps with the appropriate medical providers to ensure that you and your child are evaluated and treated by the appropriate specialist. Some birth injuries may only be temporary, but others may be permanent and require life-long medical care.

Birth injuries caused by the failure to appropriately use or interpret EFM can cause life-long difficulties with everyday activities, requiring modifications to your or your child’s schooling, job responsibilities, and leisure activities. It may also require ongoing therapy to prevent the injury’s impact from worsening over time. Future activity modifications and therapy over the course of a lifetime can be very expensive. These injuries can also cause physical disfigurement and significant emotional harm to a child or parent, as these injuries may make the child feel different, and impact his or her social wellbeing. 

If you or your baby suffered a birth injury due to medical malpractice, the physician and delivery team can be held responsible for the birth injury and all its consequences, including the costs of future medical care. It is very important to retain a lawyer who is experienced in handling birth injury cases and understands how to successfully hold the physician accountable. The medical malpractice attorneys at Morris James are experienced in birth injury cases, and can assist you and your child in presenting the strongest claim possible.

If you or your child has suffered a birth injury, and if you believe that you or your baby were not monitored appropriately during your pregnancy or labor and delivery, then you should consider speaking with an attorney. Given the complexity of pregnancy and the labor and delivery process, it can be difficult to determine whether a healthcare provider’s medical malpractice caused injuries to you or your child. Hiring a medical malpractice lawyer who has experience handling cases involving EFM and birth injuries is key to making these determinations, as the lawyer has the tools and knowhow to investigate your case to determine whether the medical team committed medical malpractice, and how to prove such a claim in the court of law. An experienced birth injury lawyer also knows how to get answers from your healthcare team, and can make them pay fair compensation for your and your child’s injuries.

The medical malpractice attorneys at Morris James have handled many complex birth injury cases, including those involving EFM. They are familiar with the issues in these cases, including the interpretation of an EFM strip, how a medical provider should respond to the findings on the EFM strip, the types of experts who can successfully support a claim for malpractice, and the hurdles healthcare providers place before families who simply want answers. Our attorneys know how to fight for your rights and will, if necessary, go to trial to obtain the maximum compensation for the injury you or your child suffered.