During a woman’s pregnancy—as well as shortly after birth—the health of the infant and the mother rely heavily on the experience, knowledge, and care given by medical professionals. In most cases, the doctors and medical staff have the necessary skills to adequately care for the medical needs of the baby and the mother, however, mistakes can be made, and health issues can be overlooked. The miraculous moment of birth can be shattered by a birth injury—particularly one that could have been prevented with proper care. Not all birth injuries are permanent, and certainly, not all birth injuries are catastrophic or preventable, yet some are. While medical mistakes can take on a variety of forms, failure to diagnose or treat can lead to serious, life-threatening complications, or even death. Serious birth injuries can bring significant emotional pain and financial hardships to the parents; if the birth injuries are severe, parents can find themselves unable to provide the level of therapy, medical care, and education the child will require throughout his or her life. It is important to note that in the state of Virginia, the Birth-Related Neurological Injury Compensation Program, which was created in 1987 by the Virginia General Assembly—may pay for certain birth injuries. The Program is funded by participating physicians, nurses, hospitals, midwives, etc., who choose to make payments to the Program rather than paying medical malpractice insurance premiums. In return for making these payments, the healthcare provider cannot be sued for medical malpractice that arises from injuries sustained by a baby during birth. Rather than file a medical malpractice claim, the child’s family files a claim with the Program, seeking admission. Once admitted to the Program, the parents of the injured child will submit regular claims for costs related to the child’s care. When the costs are allowed, regular payments are made to the parents. The goal of the Program is to keep malpractice insurance premiums low and keep physicians, nurses, midwives, hospitals, and other participants in the healthcare industry in business. Talk to your attorney regarding eligibility for this program.

What is a failure to diagnose or treat?

If your doctor or other healthcare provider did not detect and diagnose a condition or illness during your pregnancy (or immediately following your baby’s birth) which otherwise could have been treated or prevented, then negligence may have occurred. Your doctor could have missed a serious condition or misdiagnosed a condition. If this failure to diagnose caused birth injuries to your infant, then it could be considered medical malpractice. In order for failure to diagnose or treat to be considered medical malpractice, you must be able to show you had a physician-patient relationship with your doctor. In most cases, this relationship is apparent—you make an appointment with a doctor, then go to that appointment. Asking a doctor a question at a party, then taking that advice (if it happened to be bad advice), does not mean you had a doctor-patient relationship.

What are the illnesses or conditions most likely to qualify under failure to diagnose?

Of course, there are many, many illnesses or conditions which a doctor could fail to diagnose, but the most common ones include:
  • The infant is too large for normal delivery or is in the breech position and the doctor failed to notice, leading to birth injuries.
  • The doctor or healthcare provider failed to detect fetal distress. Fetal monitoring systems are able to pick up early indications of fetal distress when used properly.
  • The doctor failed to order tests and screenings appropriate for the mother’s age and other medical issues.
  • The doctor failed to monitor or detect gestational diabetes.
  • The doctor fails to detect a maternal infection or does not properly monitor the infection.
  • The doctor failed to treat the baby’s medical issues (i.e., a failure to diagnose jaundice could lead to brain damage, cerebral palsy, and hearing loss).
  • The doctor failed to detect, diagnose, or treat preeclampsia.
  • The doctor’s failure to diagnose led to a preventable surgery for the baby.
  • The doctor failed to take symptoms brought up by the parents seriously.
  • The doctor lacked the necessary knowledge to identify warning signs or symptoms of the baby’s illness or condition.
  • The doctor panicked during a medical emergency, failing to offer proper treatment.
  • The doctor failed to prescribe the correct medications for the condition at the right time.
  • The doctor provides medically unsound advice.
  • The doctor misread lab or test results, causing a birth injury.
  • The doctor is juggling too many patients or responsibilities allowing a serious condition to go unnoticed.

What are some of the most common birth injuries?

While there are a number of birth injuries, the most common of these include:
  • Nerve damage;
  • Stroke;
  • Reduced blood flow;
  • Cerebral Palsy;
  • Facial paralysis;
  • Erb’s Palsy;
  • Brachial plexus injuries
  • Permanent physical injuries;
  • Broken bones;
  • Fractured collar bones;
  • Spinal cord injuries, and
  • Developmental delays.

How can a birth injury attorney help?

Physicians have a duty of care they must uphold and while many things can go wrong during pregnancy, labor, and delivery, many of these complications have indicators along the way. It is your doctor’s job to detect these indicators and respond appropriately. If your doctor fails to do so, you may be entitled to compensation for medical expenses, hospital bills, pain and suffering, lost wages, cost for future care, and emotional distress. It can be extremely beneficial for you to speak to an experienced Tronfeld West & Durrett attorney regarding your baby’s birth injury. Contact Tronfeld West & Durrett today.