Birth Injury Caused by Medical Malpractice

Medical malpractice occurs when a patient - in this case a baby being born - is injured through improper action or lack of appropriate action of a healthcare professional or medical treatment facility.

The plaintiff in such cases must prove the following four elements of the tort of negligence in order to win a medical malpractice case.

The plaintiff must prove that a duty was owed by a hospital or care provider. When a hospital undertakes care or treatment of a patient, it is assumed that a duty was owed. In cases of birth injuries, birth injury attorneys establish that the hospital took on treatment of the mother and child, satisfying the requirement that a duty was owed.

A birth injury attorney must also prove that a duty was breached. This means that the doctor or other health care provider failed to conform to the appropriate standard of care. Standard of care is determined by expert testimony, or sometimes by the obvious result of a medical error.

If the standard of care was not adhered to, the plaintiff must prove that the breach caused an injury. In other words, a birth injury attorney will do research to determine exactly how a breach in the duty to provide the appropriate standard of care resulted in the birth injury.

The plaintiff must prove there are damages, whether monetary or emotional. Without this, there is no basis for a claim, even if the medical provider was negligent. Birth injury attorneys will estimate damages, whether for loss of wages, pain and suffering, or loss of future earnings as the result of a birth injury.

The plaintiff’s birth injury attorney will file a lawsuit in the court with the appropriate jurisdiction. Before the trial, both sides of the case are required to share information through a process called discovery. Discovery may result in the sharing of documents and depositions. Often, medical malpractice cases are settled after discovery.

In medical malpractice cases the plaintiff’s side has to prove its case by “preponderance of the evidence,” meaning the plaintiff must show it is more likely than not that the allegations are true. During trial, the birth injury attorney and opposing counsel present expert testimony on the standard of care received.

A judge or jury weighs the evidence and decides which side is more credible. Medical malpractice lawsuits must be filed within a certain period of time called the statute of limitations. These laws vary based on state, and the periods range from one to four years.

The clock for the statute of limitations generally begins with the date of injury. A birth injury lawyer will know how quickly a plaintiff must act in filing a medical malpractice suit. Most settled malpractice suits - nearly three out of four - involve a medical error.

If there is no evidence of a medical error, usually the plaintiff is denied compensation. A skilled birth injury attorney will have some idea of how medical malpractice suits proceed within a certain jurisdiction and can advise the plaintiff appropriately.