What to Do If Your Child is Injured During Birth

by John McKiggan

What to Do If Your Child is Injured During Birth

Having a child should be one of the happiest days of our lives. But if your child suffers a preventable injury during birth, the occasion can mark the beginning of a stressful and worrisome path. How was my child injured? Could it have been prevented? How am I going to care for my child in the future? All of these questions, and many more, can be a constant source of anxiety and concern.

The cost of caring for a seriously injured child can be overwhelming. Many families simply do not have the financial resources necessary to pay for the care their child needs, now and in the future. So, what is a parent to do?

In certain circumstances, you may be able to file a medical malpractice lawsuit against the doctor or hospital to get compensation for your child’s injuries in order to pay for the care your child needs.

But how do you know if you have a case?

If your child suffers any kind of injury during birth, it is important to know your options. It is important to know your rights (and your child’s rights) and the compensation you and your child are entitled to before you hire a lawyer or speak to an insurance company.

Birth Defects vs. Birth Injuries

When discussing birth injury claims, it is important to distinguish between birth defects and birth injuries.

Keep in mind that there is no such thing as a defective baby! Birth defect is a medical term that refers to problems that happen while a baby is developing in the mother’s body.

Birth defects can be caused by genetics or by something that occurs during pregnancy, such as drinking alcohol while pregnant or getting an infection. The most critical difference between birth defects and birth injuries is that birth defects are out of a doctor’s control to prevent.

In other words, you typically cannot pursue legal action against a doctor or hospital if your child is born with an unpreventable birth defect.

Birth injuries, on the other hand, are almost entirely preventable. These injuries occur during labour and delivery, and can be associated with the improper use of medical tools, an inattentive healthcare professional or improper delivery technique. One of the most common way babies can be injured, for example, is when doctors or nurses fail to recognize signs of fetal distress due to oxygen deprivation.

In many cases, preventable injuries are grounds for medical malpractice claims when a child is injured during labour or delivery.

Common Types of Birth Injury

It is estimated that as many as 1 in 1000 live births can result in some form of birth injury. While some of these are temporary and resolve over time, others can be permanent and lead to lifelong disability.

While there are many different types of birth injuries, some of the most common birth injuries that may lead to a malpractice claim include the following:

  • Brachial plexus palsy
  • Hypoxic-ischemic encephalopathy (HIE)
  • Cerebral Palsy (CP)
  • Kernicterus
  • Clavicle or collarbone fractures
  • Facial nerve palsy/paralysis
  • Head trauma
  • Seizure disorders/epilepsy

Birth Injury and Medical Malpractice

Doctors and nurses are human. They are not expected to be perfect. But they are expected to be reasonably competent.  They are expected to measure up to the standard of “reasonable” care.

Doctors, nurses, and other medical professionals should be aware of complications that can lead to birth injuries, and do everything reasonable within their power to prevent harm to the mother and baby. This means they should provide proper prenatal care, and refer the mother to specialists if health problems or birth injury risk factors are detected.

Women with high-risk pregnancies can have safe pregnancies and deliveries, but require extra attention in order to make sure that everything runs smoothly. In any pregnancy or birth, medical professionals must be aware that complications may arise.

If there is an issue, it is their responsibility to perform prompt and appropriate medical interventions. If they fail to do this, and a birth injury results, this is medical malpractice.

What Should You Do If You Suspect Medical Malpractice

If you suspect medical malpractice contributed to your child’s birth injuries, the most important thing to do is retain an experienced birth injury/medical malpractice lawyer to represent your case.

Your birth injury/medical malpractice lawyer will take responsibility for dealing with the team of experienced lawyers that the doctors and hospital will hire to defend your claim. Remember, defence counsel are often well-seasoned individuals whose only goal is to deny or minimizing their client’s involvement with your child’s injuries.

Your birth injury/medical malpractice lawyer will find another doctor (or doctors) who can provide a medical-legal opinion on whether your child’s birth injuries were preventable and, if they were, how they could have been prevented.

One of the first things your birth injury/medical malpractice lawyer will do will be to request your child’s medical records from the hospital. You can help document the claim by keeping a journal detailing symptoms, complications, costs and other elements that could be used during your case to prove that medical malpractice has caused undue harm to your family as a result of a doctor’s or hospital’s negligence.

One thing you should not do is attempt to speak to other parties on your own without a lawyer present. Doctors, insurance agents and even hospitals themselves will attempt to minimize their involvement in your child’s injuries.

Contact an Experienced Medical Malpractice Lawyer

John McKiggan, Q.C., is a founding partner of McKiggan Hebert Law in Halifax, Nova Scotia and one of the founding members of the Birth Injury Lawyers Alliance of Canada. John has received national recognition for his work in the field of medical malpractice law. If your child has suffered from a preventable birth injury and you are wondering about the safety of your child and/or your legal rights, contact McKiggan Hebert today for a no-charge case consultation.

Want More Information?

For more information about medical malpractice claims you can contact us for a free copy of my book Health Scare: The Consumer’s Guide to Medical Malpractice Claims in Canada.

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