Phoenix Birth Injury Lawyer
Birth injuries can involve several types of conditions that can leave a child disabled for the rest of their life. A birth injury lawyer will help you determine whether the birth injuries were caused by negligence and whether hospitals, medical professionals, or other parties can be held responsible for the damages the victim suffers. An attorney will work diligently with a team of experts to create the strongest case possible and help you recover the compensation you and your child deserve.
Finding an Experienced Birth Injury Lawyer
If your child has suffered a birth injury due to medical malpractice or the medical negligence of a third party, you must hire a phoenix personal injury lawyer. An birth injury attorney and medical malpractice lawyers Phoenix can help you file a claim against the medical professional who delivered your child, nurses, specialists, the hospital, and anyone else who must be held responsible.
What is a Birth Injury?
Birth injuries are injuries caused to an infant before, during, or after labor and delivery. A birth injury can lead to disorders such as cerebral palsy. Fortunately, many birth injuries are minor and will resolve over time. Some injuries are caused by medical mistakes that could have been prevented.
Perinatal asphyxia refers to an inadequate flow of oxygen to an infant during childbirth. This can occur because the blood getting to the infant does not have enough oxygen in it or the blood flow is restricted.
The cause of perinatal asphyxia may be due to an infection, pressure on the umbilical cord, loss of blood, or a genetic abnormality. Cerebral palsy is one of the common results of this type of birth injury.
This neurological condition is caused by a lack of oxygen to the brain. This can lead to impairments in movement, muscle tone, and motor skills. It can also be related to complications such as limited hearing or vision, low bone density, lung disease, speech difficulties, cognitive impairment, or learning disabilities.
The effects of cerebral palsy can vary greatly from person to person. In some cases, it may be mild, while in others it can be debilitating. While there are some treatments available for CP, there is no cure.
Brachial Plexus Birth Injuries
The nerves that control the feeling and movements in the arms is called brachial plexus. These nerves run from the spinal cord and through the neck, down both arms. These nerves may become damaged during childbirth if the shoulder and neck are pulled apart roughly. This may result in stretching out the nerves. The most common brachial plexus injury is Erb’s palsy. This condition occurs when the damage to the nerves causes damage to the arm. The arm may lack sensation, may be weaker than the other arm, or the arm will be paralyzed.
In severe cases, a person may develop Klumpke’s palsy, which involves the paralysis or weakness of the hands, wrists, and lower arms.
Spinal Cord Injuries
In rare cases, the spinal cord may be damaged and stretched. This is a very serious injury and one that often results in paralysis below where the damage occurred. This type of injury is usually permanent.
The amount of pressure that an infant’s head is under as it is delivered can be severe enough to cause a fracture. A fracture may be caused by instruments used to deliver the infant.
Birth injuries usually do not result in the death of an infant, but it’s possible. A lack of oxygen to the brain can occur during a difficult delivery if the infant gets choked by the umbilical cord or they get stuck in the birth canal or pelvic area.
Other possible causes of infant death include jaundice that goes untreated, severe skull fractures, severe spinal cord damage, and bleeding in the brain.
If the death of a newborn is deemed preventable, the parents can file a wrongful death lawsuit.
Proving Liability in a Birth Injury Lawsuit
In a birth injury claim, an attorney must prove liability. This means establishing why the medical professional should be held liable for injuries.
The attorney will need to determine the degree of damages in a case. Damages refer to the injuries that were caused by medical malpractice, which resulted in a birth injury. To be compensated for the damages, the lawyer must prove liability.
A birth defect lawyer must prove that the treating medical professionals failed to provide a child with the proper medical treatment that another medical professional would have, under the same circumstances.
This can include prenatal treatment and advice during pregnancy and during childbirth.
Standard of Care
This process will involve showing that the medical professional failed in their duty to render treatment and care that’s consistent with generally accepted medical practices. This is known as the standard of care. During a case, a lawyer will identify the standard of care followed by a competent medical professional, explaining why the defendant’s conduct failed to meet the standard of care.
A lawyer must also establish causation, which is a link between improper conduct and the injury. This will show that a child would not have suffered an injury if they had received proper treatment and care.
Compensation in a Birth Injury Lawsuit
If an attorney can prove that a child’s injuries could have been prevented with proper care, then the child and family will be awarded damages. The amount of compensation they will receive will depend on many factors.
These factors can include:
- The impact and severity of the injury
- Future care and treatment costs
- The extent of the injuries
A successful claimant can expect an award of damages in connection with:
- Wrongful death
- Lost wages for the parents
- Future medical costs
- Rehabilitation services for the victim
- Lost future earnings for the child and either parent
- Past and future pain and suffering for the child and mother
In some cases, the claimant may also receive punitive damages. Punitive damages can be sought against the liable party or parties as a form of punishment when there is evidence that establishes the medical professional willfully acted recklessly. Keep in mind, punitive damages in a medical malpractice case are not always available and courts are often very hesitant to award them if there is no convincing, clear evidence.
Parties that Can Be Held Liable
Parents may be struggling to figure out who is responsible for their child’s condition or injury. Because of this, it’s important to speak with a birth defect lawyer about the situation. After a thorough investigation, a lawyer can provide specific information about the case, including which parties can be held liable for a child’s injuries and how these injuries occurred.
A birth injury lawsuit asserts claims of medical malpractice. Medical malpractice can refer to an individual staff member’s or medical professional’s error or negligence. A medical malpractice claim isn’t restricted to doctors only. It can include errors made by:
- Certified registered nurse anesthetists
- Physician’s assistants
- Nurse practitioners
- Registered nurses
- Medical Facilities
In some cases, even if a medical professional was negligent, or made an error in treatment, the hospital can retain liability. In these cases, the hospital will take on vicarious liability for the medical staff it employs. Vicarious liability doesn’t pertain to staff who work as independent contractors.
A hospital can also be held directly liable for a birth injury case if the hospital fails to uphold certain procedures and standards. In this type of case, medical malpractice can be attributed to the clinic or hospital itself.
A medical facility is responsible for thoroughly vetting its staff before they are allowed to practice in the facility. This involves examining a staff member’s training, licensing, and educational history. The failure to do so can result in employing an unqualified staff member. If an unqualified employee causes a birth injury, the medical facility will be held liable.
A medical facility must also adhere to certain standards for quality of care.
Medical facilities are also responsible for overseeing the day to day procedures, including treatment plans and keeping accurate medical records. This can also mean discharging and admitting patients according to procedures. Failing to uphold these standards can result in a birth injury. When this occurs, a medical facility can be held liable.
Challenges in Birth Injury Cases
Determining who is liable in a birth injury case can be very complex. This is because there are several entities and parties involved in delivering a child. The first step will be determining how a child sustained the injury. Doing so will give the attorney a better idea of who should be held liable.
In some cases, further investigation will be needed to determine liability.
How to Proceed with a Birth Injury Claim
Every birth injury lawsuit is unique. However, most share the same general progression. Knowing more about the steps involved in this type of case can help you prepare for what’s to come. While preparing for a lawsuit can feel daunting and overwhelming, with the right attorney by your side, you can confidently navigate the legal process.
Filing a Claim
A parent or lawyer must file the initial injury claim. The claim will be filed with the courts in the county where the incident occurred.
Filing a claim will involve completing the correct paperwork and filing the forms within the state’s statute of limitations.
Statute of limitations in Arizona
Parents will have two years from the date they discovered the occurrence of malpractice.
Preliminary Expert Opinion Affidavit
In Arizona, a preliminary expert opinion testimony is required when filing a medical malpractice lawsuit. The filing party must provide a certified written statement that declares whether a medical expert’s testimony will be needed to:
- Establish the standard of care
- Prove the defendant’s liability
If a medical expert’s opinion is needed to help prove the plaintiff’s case, then the plaintiff must file a preliminary expert opinion affidavit with the court. The affidavit must also be served on the defendant.
The affidavit must state the following:
- The qualifications of the medical expert
- The factual basis for each claim against the defendant
- The specific errors or actions of the defendant that did not meet the applicable standard of care, in addition to how the defendant’s inaction or action contributed to or caused the plaintiff harm.
If the plaintiff declares that the opinion of a medical expert isn’t necessary and the defendant believes that the opinion of a medical expert is necessary to prove the plaintiff’s claim, the defendant can request that the court require the plaintiff to obtain the preliminary expert opinion affidavit.
The court can dismiss the lawsuit if the plaintiff does feel that a medical expert’s opinion is necessary to prove liability and establish the standard of care, but they do not obtain or file the affidavit in time.
The plaintiff will have up to sixty days to file the affidavit.
Waiting for the Defendant’s Response
Once the lawsuit has been filed, the defendant must respond within thirty days. The defendant will either deny the claim or accept the claim and begin settlement negotiations. If the plaintiff receives a denial, they can choose to take the defendant to court.
Building a Case
As you wait for a response from the defendant, you will work closely with your lawyer to build a case. A lawyer will gather all of the evidence available to help prove negligence.
Evidence can include:
- Statements from eyewitnesses who were present in the delivery room
- Medical records
- Photographs of injuries
- Testimony from medical experts
- Complaints against the medical professional
Your lawyer will work with you to create a comprehensive legal strategy.
If a defendant accepts a claim, settlement negotiations can begin. Negotiations will allow the plaintiff to achieve a successful settlement without needing to go to court. A lawyer can represent their client during negotiations to increase their odds of reaching a compromise without a lengthy or costly trial. Negotiations, with the help of an experienced attorney, can ensure a fair settlement.
A settlement can result in the payment of all medical expenses, special education costs, physical therapy costs, and any other type of related damages. A settlement is usually the easiest and most affordable way to resolve a malpractice case. However, if the defendant isn’t willing to negotiate for a fair settlement, then the case will need to be brought to court.
In the Courtroom
If the case goes to court, it will begin with the discovery phase. This involves hosting interviews with people from the other side of the case and each side works to collect information, gather evidence, and research the case. It can take many months to acquire medical records and other types of evidence since medical facilities are usually slow to respond to requests.
The discovery process will usually involve taking depositions from witnesses and requesting documents from the other party. Expert medical witness testimony is one of the most important parts of the discovery process. After discovery, the trial will begin. A jury or a judge will listen to both sides and conclude whether or not the plaintiff has fulfilled her or his burden of proof. If the plaintiff has, then the court will award the appropriate judgment amount that will compensate the plaintiff for her or his losses. The plaintiff can appeal the court’s decision if it’s found that they did not fulfill the burden of proof.
Contact the Top Phoenix Birth Injury Law Firm
In negotiations, this type of lawsuit can take several months to resolve. In court, it can take a year or more to reach a verdict. Working with top birth injury lawyers can expedite the claims process. You will take the right steps, avoid many common mistakes, achieve better results, and receive a higher settlement with an attorney by your side. Contact the Ferguson Law Group today to schedule a consultation and learn how you can receive compensation and hold the guilty parties responsible.
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