Parents want their babies to be perfect. Doctors know perfection isn’t always possible and strive for the best possible outcome. Lawyers know that negligence, carelessness, or malpractice can increase the risk of birth defects and prevent both wishes from coming true.
Birth defects and injuries are a parent’s nightmare. Unfortunately, the law limits the amount of time in which stunned parents must bring legal action for their infant’s injuries. If you believe your baby’s injuries were due to something that went wrong during or after the birth, you need the assistance of a birth defects attorney.
Types of Birth Defects
Birth defects are usually defined as anything visibly, internally, or systemically abnormal about a baby at birth. Birth defects fall into several categories. There is no one most common birth defect, but some of the causes are:
- Congenital or genetic disorders. Some defects are inherited or due to chromosomal damage. Examples include genetic diseases like sickle-cell anemia, Down syndrome, and spina bifida.
- Environmental damage. Anything that affects the mother affects the developing fetus. The fetus can be affected if the mother is exposed to toxic chemicals, takes certain medications, or suffers physical harm during pregnancy. For instance, exposure to the drug Rogaine can cause fetal retinoid syndrome.
- Birth injury. Defects caused by trauma during the birth process are called birth injuries. An infant born otherwise healthy but harmed by the delivery has suffered a birth injury. Birth defects and birth injuries may have similar impacts but different causes. For example, cerebral palsy can be caused by restricted oxygen to the brain. If it occurred before birth due to a compromised umbilical cord, it would be a birth defect. If it occurred during birth because the doctor delayed a C-section, it would be a birth injury.
Types of Birth Injury Lawsuits
Birth injury lawsuits usually involve the hospital, doctor, or delivery room personnel. A birth injury lawsuit is a type of negligence lawsuit alleging that the doctor or hospital mishandled the birth, resulting in injury.
Birth defect lawsuits typically focus on environmental causes of defects. Since a birth defect is an injury that happened while the fetus was developing, these lawsuits involve chemical or environmental exposure, improperly prescribed medication or drugs, or inadequate prenatal care.
Medical malpractice is a type of negligence claim used when a doctor, through an act or failure to act, caused harm to a patient. Doctors are held to a higher standard of care than ordinary people because of their level of training and the relationship between the doctor and the patient.
In the case of a birth injury, medical malpractice lawsuits can include:
These injuries may be due to a failure to monitor the infant during delivery or a failure to perform a C-section at an appropriate time. Because this type of negligence means an infant lives with the results for the rest of their life, they are entitled to compensation.
If negligence leads to death, it is called wrongful death. A wrongful death does not necessarily mean there was criminal intent, only that the death could have been avoided had the defendant done what they were supposed to.
In a birth injury case, this is a worst-outcome scenario in which the doctor or medical staff fails in their duties, and the infant dies because of carelessness or negligence. Florida allows parents of a deceased infant to bring a suit because of their loss.
Florida also allows parents to bring a wrongful birth suit in rare cases of severe birth defects requiring specialized lifetime care. The “wrongful” in this case is not the baby but the amount of care it will need throughout its life.
When To File a Birth Defect Lawsuit
The statute of limitations for birth defects can be confusing. For example, Florida has a statute of limitations and a statute of repose for medical malpractice injuries.
The statute of limitations for medical malpractice is two years from the date of the incident. However, a medical malpractice case may be brought on behalf of a minor child until the child’s eighth birthday. This is known as a statute of repose. The courts acknowledge that it may take some time for some types of injuries — such as developmental delays — to appear in small children.
If a birth defect is due to an unknown or concealed environmental cause, parents need to consult an attorney as soon as they believe they may be affected.
In 1991, the anti-nausea drug Zofran was first used off-label to treat hyperemesis gravidarum, a serious type of nonstop morning sickness that can endanger some pregnant women. Zofran was never approved for this use. By 2015, thousands of cases had been filed against the manufacturer, alleging Zofran was responsible for developmental delays and congenital heart defects.
These cases need careful legal analysis to determine if all statutes have run before parents and children can proceed.
Compensation in Birth Defects Cases
Depending on the type of injury suffered and the degree of impairment your child may have suffered, the compensation may include:
- Medical bills, including immediate bills, return visits, and NICU care
- Long-term treatment, repeat care, and rehabilitation
- Modification to the home, specialized vehicles, and adaptive devices (including upgrades as the child grows)
- Pain and suffering to the child
- Loss of consortium to the parents
- Loss of income for parents if work is lost due to staying with the child
Florida and Virginia are unique in the U.S. in having a specialized compensation program for children injured during birth. Known as the Neurological Injury Compensation Act (NICA), the program reimburses parents for expenses incurred because of a birth injury and offers up to $100,000 additional compensation.
NICA has limitations, and parents should consider them carefully before they file a birth defect claim. The physician must be a NICA member, and the injury must meet NICA guidelines. NICA does not cover anything paid by Medicare/Medicaid or private insurance and will not cover future losses.
Hire a Birth Defect Attorney for a Legal Claim
Parents want their babies to be perfect or at least have the best possible start in life. However, if something has happened to prevent that, you need the services of a skilled birth defects attorney to help you understand your options and make sure you and your baby get the compensation you deserve.
Have the birth defects law firm Ratzan Weissman & Boldt review your case. We will give you our honest opinion and compassionate advice. The consultation is free. Call us at (305) 374-6366 or use our online form today.