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What is a 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.

What is a birth injury to a mother?

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.

What causes a birth injury?

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. 

What are the most common birth injuries?

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. 

What is a birth injury lawsuit?

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. 

What is birth injury compensation?

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

What is the statute of limitations for filing a birth injury claim in Delaware?

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. 

Why choose Morris James to represent you?

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.

If you or your child have suffered a birth injury, we may be able to help. Our attorneys at Morris James are available to talk to you about your rights and the options that you have at this difficult time. Contact us online or call into one of our local Morris James offices in Delaware to find out more.

What is a failure to diagnose?

A failure to diagnose generally occurs when a physician or other healthcare provider does not diagnose a patient’s current medical condition or makes the correct diagnosis but not within a timely manner. It may also happen when the healthcare provider misdiagnoses the patient, thereby preventing the correct diagnosis and treatment from occurring. This can lead to a patient’s injury getting worse or, in the worst case, becoming untreatable due to the delay. These errors can lead to physical and emotional suffering, and financial loss, for the patient. A healthcare provider’s failure to diagnose a medical condition can give rise to a legal claim for medical malpractice.

Can I bring a failure to diagnose claim for a delayed diagnosis?

Yes. When a medical condition should have been diagnosed sooner, or when the healthcare provider misses the correct diagnosis, this may be grounds for a failure to diagnose medical malpractice claim.

How do I prove a failure to diagnose?

In any medical malpractice claim, including a failure to diagnose, you need to prove four elements in order to be successful at trial. Not all failures to diagnose a medical condition are considered medical malpractice. In order to prove a failure to diagnose claim, you must show that:

• The healthcare provider owed you a duty of care as a patient;
• The healthcare provider breached that duty of care (by failing to correctly and promptly diagnose your medical condition);
• You suffered harm (such as physical, emotional, or financial harm); and
• Your harm was caused by the healthcare provider’s breach (the failure to diagnose).

Proof of these four elements requires evidence, including medical expert testimony, that the healthcare provider caused harm to the patient by falling below the standard of care - here, by failing to make a diagnosis appropriately or timely. An experienced medical malpractice attorney will help you to gather the necessary evidence, and retain reliable medical experts, so that you have as strong a claim as possible to succeed and maximize your compensation. Even in a case that settles out of court, as many of our medical malpractice cases do, the strength of the evidence and experts is crucial to gaining a strong negotiating position and an optimal settlement.

What if I cannot prove a failure to diagnose?

If you are not sure that you can prove all the elements required for a successful failure to diagnose claim, you should first consult with an experienced medical malpractice attorney to discuss your individual case. The law in this area is complex, and you may have sufficient grounds and evidence to bring a legal claim, even if you think you do not. 

What is the statute of limitations for a failure to diagnose lawsuit?

The statute of limitations is the law that determines how long a victim has to bring a legal claim. The statute of limitations varies from state to state. In Delaware and Pennsylvania, the statute of limitations for a failure to diagnose claim is usually 2 years. In Maryland, the statute of limitations is generally 3 years. However, there may be exceptions to these general rules. Therefore, if you have been injured by a failure to diagnose, you should consult an experienced medical malpractice attorney, such as the attorneys at Morris James, as soon as possible. They can then evaluate the time period in which you can bring a potential medical malpractice claim.

What are common failure to diagnose claims?

Unfortunately, there are many medical conditions that can be undiagnosed, misdiagnosed, or subject to a delayed diagnosis. Some examples of these conditions include:

• Heart attack or other heart conditions
• Stroke
• Aneurysm
• Cancer
• Meningitis
• Asthma
• Fetal distress
• Infection
• Fractures
• Surgical injuries
• Pulmonary embolism (P.E.)
• Spinal abscess or cauda equina syndrome
• Compartment syndrome
• Other medical emergencies

There are many other conditions that a healthcare provider may misdiagnose or fail to diagnose in a timely manner, so if you have any concerns that your medical condition was not handled appropriately, you should consult an experienced medical malpractice attorney as soon as possible.

What damage or costs can I get compensation for after a failure to diagnose?

A delay in diagnosis, misdiagnosis, or failure to diagnose a medical condition can cause physical and emotional harm, and can have practical and financial consequences for the victim and their families. Victims of medical malpractice are entitled to be compensated for economic and non-economic damages resulting from the failure to diagnose. 

Types of damages that can be recovered include:

• Medical bills, including physician, hospital, pharmacy, PT, rehab, and other medical expenses;
• Future medical expenses;
• Lost wages, both current and future;
• Modifications to your home and/or vehicle;
• Pain and suffering;
• Loss of companionship or consortium; and
• Damages for the patient’s passing.

If you pursue a failure to diagnose claim, you are permitted to recover compensation for all losses suffered, including the costs that will be incurred in the future as the patient returns to normal life, or to his or her new normal. An experienced medical malpractice attorney can help to identify all of the eligible costs and maximize a victim’s award or settlement. 

How much compensation can I get for a failure to diagnose?

Unfortunately, there is no easy answer to this question. Every case is very fact-specific, and it is often impossible to state with precision what a given case may be worth. Your compensation or settlement after a failure to diagnose will depend on a number of factors, including the extent of your injuries, pain, or disfigurement; the cost and discomfort of additional medical procedures required as a result of the failure to diagnose; any mental anguish as a result of your experience; your lost wages and loss of ability to earn in the future; and your loss of enjoyment of life.

A lawyer should never guarantee you a specific amount of financial compensation.However, an experienced medical malpractice attorney, such as the attorneys at Morris James, understands how these awards are calculated, how juries process this information, and how to maximize the award or settlement for their suffering client. In fact, the attorneys at Morris James have unique insight into valuing based on their prior experience defending healthcare providers and knowing how these claims are valued by defendants. With this knowledge, an experienced attorney can get a sense as to the range of value for a given claim so that you get the maximum amount of compensation that you deserve.

Do I need a lawyer for a failure to diagnose claim?

If you are considering bringing a failure to diagnose claim, you should have an experienced medical malpractice lawyer to advise and represent you. At the earliest stages, a good lawyer can explain your options and advise you on the strength of your case so that you can decide how to proceed. As the claim progresses, an attorney will handle communication and negotiation with insurers, hospitals, and other parties so you have more time to focus on healing. An experienced attorney will also have a network of qualified medical experts to assess your medical care and your injuries and will know how to provide the evidence that you need to be successful. In settlement negotiations or at trial, a lawyer has the experience and skills to present the relevant evidence in a compelling manner to achieve more compensation for you.

Ultimately, a lawyer will make the process of bringing a claim easier for you, and will maximize your compensation. It is well known that unrepresented plaintiffs receive (and accept) lower settlement offers, and tend to get lower compensation awards than victims who have legal representation. It is therefore important to retain an experienced medical malpractice lawyer as soon as possible so that you can achieve the best possible outcome for your case.

Why choose Morris James to represent you?

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 medical malpractice 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 need to regain stability and security after your injury.

If you or a loved one has suffered an injury due to a mistake by a healthcare professional, we may be able to help. Our attorneys at Morris James are available to talk to you about your rights and the options that you have at this difficult time. Contact us online or call 302.655.2599 to find out more.

What is considered medical malpractice?

Medical malpractice, also known as medical negligence, occurs when a hospital, doctor, or other health care professional fails to comply with the standard of care and causes an injury to a patient. The standard of care refers to the requirement that a medical professional act as a reasonably prudent and diligent medical professional.

How do you prove medical negligence?

Not all failures to comply with the standard of care (also called a “breach” or “violation” of the standard of care) equate with medical negligence. Nor do all injuries to patients mean that a medical professional breached the standard of care. Rather, to prove that a patient’s injuries or harms were due to a healthcare professional’s medical negligence, the person must prove that: 

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

To prove medical malpractice, the injured party must present medical expert testimony that there was a standard of care breach that caused damages.  Even before a claim is filed, the injured party needs to retain a qualified medical expert who can support the claim. Thus, to pursue a medical negligence claim successfully, it is critical to hire attorneys who can retain competent and qualified experts. 

What is the statute of limitations for medical malpractice in Delaware?

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 healthcare 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. 

Will my case go to trial? 

Sometimes the injured party and the healthcare providers are able to resolve their matter before trial. If, however, the defendant healthcare providers refuse to pay a fair amount, our team recommends that we go to a trial to receive fair compensation. The attorneys at Morris James have tried many cases to verdict and know how to fight for their client’s right to fair compensation. 

How is medical malpractice pain and suffering calculated?

Although every state is slightly different, many states ask a jury to evaluate an injured party’s pain and suffering by considering a number of factors. Those include the injured party’s physical pain caused by the injury itself, any discomfort resulting from necessary medical treatment, and mental anguish and other emotional stressors from the injury. A jury can also consider disfigurement and loss of ability to enjoy life’s pleasures. The jury may also consider the costs of any medical care incurred, the costs associated with future treatment that is needed as a result of the injuries sustained, and lost earnings due the inability to work from the injuries. 

Because every case is variable, awards can vary widely even in similar cases. The medical malpractice attorneys at Morris James are keenly aware of how juries calculate damages awards given their experience and use this knowledge to leverage their clients’ cases to obtain the best possible outcomes, whether through settlement or at trial. 

What are the most common medical malpractice claims?

The attorneys at Morris James LLP have litigated almost every type of medical malpractice claim. Some common types of malpractice claims include:

Pregnancy care and labor & delivery management - The birth of one’s child is one of the most exciting and wonderful experiences in a person’s life. Unfortunately, this event can turn horrific if the medical providers involved do not act appropriately to monitor the mother and baby. If the healthcare providers fail to treat the mother or child appropriately during her pregnancy or her labor and delivery, that can lead to catastrophic injuries to both the mother, father and baby. Some of these injuries include physical injuries to the baby’s head, arms, or shoulders and can include devastating neurologic injuries like brain bleeds and cerebral palsy - injuries that a patient and family will need to face for the entirety of their lives. 

Hospital negligence - Patients go to a hospital for all types of care, including emergency room care, surgeries, births, and other issues. While at a hospital, patients can be treated by numerous healthcare providers, including doctors, physician assistants, nurse practitioners, and nurses. When these providers breach the standard of care and harm a patient, regardless of the type of care, the hospital may be responsible for those injuries. 

Failure to diagnose a medical condition - If the healthcare provider acted negligently in failing to identify, diagnose and treat the medical condition, and if that delay caused harm, the treating healthcare provider might be liable for medical malpractice. In certain cases, such as cancer, the medical condition leading to harm can be severe.  

Failure to follow-up - There are times when a patient expects a healthcare provider like a doctor to follow-up on a test, a visit, or a study. This typically happens after a patient has blood drawn for lab tests, has a biopsy performed, has an imaging study like an x-ray or other scan, or has an ongoing medical condition. If the healthcare provider doesn’t follow-up when he or she is supposed to do so, and if that failure to follow-up leads to a delay in a medical diagnosis, it can cause harm to the patient. In that situation, the failure to follow-up may be a basis for a medical malpractice claim. 

Failure to monitor - Oftentimes after a patient has a medical procedure, the patient is admitted to the hospital or another medical facility so that the medical staff, including doctors and nurses, can monitor the patient to make sure that there are no new problems that develop. Sometimes, that monitoring is done at the patient’s home by trained medical staff. If the medical providers caring for the patient do not monitor the patient correctly, they can sometimes miss important medical issues, and that can lead to harm. If the medical providers did not monitor the patient correctly, and this failure caused harm, the patient or the patient’s family may have a potential medical malpractice claim. 

Surgical errors - Despite the technological advances and techniques that surgeons have at their disposal, there may still be surgical errors. Sometimes, those are expected, but other times they may be due to the surgeon making unreasonable errors. If a surgeon makes an unreasonable error that causes harm, that can be a basis of medical malpractice. Some examples of surgical errors that might be malpractice include puncturing internal organs, injuring blood vessels, operating on the wrong body part, or leaving surgical instruments inside the body. 

Prescription errors - Healthcare providers may make mistakes with medications for patients. These errors include a doctor or nurse practitioner writing an incorrect dosage on a prescription, issuing a prescription that should never have been given under the circumstances, a nurse administering an incorrect amount of a medication, or medical equipment giving the patient the wrong dose of a medication. When that medical error causes harm, that may be a basis for a medical malpractice claim. 

Why choose Morris James to represent you?

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 medical malpractice 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 need to regain stability and security after your injury.

If you or a loved one has suffered an injury due to a mistake by a healthcare professional, we may be able to help. Our attorneys at Morris James are available to talk to you about your rights and the options that you have at this difficult time. Contact us online or call into one of our local Morris James offices in Delaware to find out more.

Before a woman is about to deliver her baby, she will enter into a process called labor. Labor refers to the period before delivery when the mother experiences a series of continuous and progressive contractions of the uterus. This causes the cervix to open (or dilate) and to thin (or efface). These changes to the cervix allow the baby to move through the birth canal, culminating in delivery. 

Prolonged labor, also known as a failure to progress, occurs when a woman’s labor lasts an atypical amount of time. Although there are different definitions for what constitutes prolonged labor, for first-time mothers, labor has historically been considered prolonged if it lasts for approximately 20 hours or more. For women who have given birth before, labor has historically been considered prolonged if it lasts 14 hours or more. Prolonged labor can be a warning sign that the mother or baby has been injured, or an indication to change the delivery plan. Sometimes, prolonged labor can cause stress on the baby, leading to serious injuries. Thus, a healthcare provider needs to carefully monitor the mother’s labor progress. When healthcare providers fail to carefully monitor labor progress, or appreciate the risks of a prolonged labor, they may commit medical malpractice. 

What causes prolonged labor?

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. 

What should be done with prolonged labor?

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. 

What injuries can be caused by a prolonged labor?

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. 

When should I speak with a lawyer? 

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.

Why Morris James?

The medical malpractice attorneys at Morris James have handled many complex birth injury cases, including those involving prolonged labor. Before advocating for the injured, our attorneys defended healthcare providers who delivered babies so we know how those medical providers defend their care when a baby is injured after a prolonged labor. Our attorneys can anticipate the tactics used to minimize compensation to injured victims and fight for our clients to obtain answers and the full compensation to which they are entitled. 

At Morris James, our attorneys have been standing up for victims since we opened our doors in 1932. If you have questions about a birth injury, you may find answers in our birth injury FAQs, or you can contact us online or call us at 302.655.2599 to learn more.