Birth Injury FAQ
Created by FindLaw's team of legal writers and editors | Last reviewed November 30, 2018
Q: What's the difference between a birth defect and a birth injury?
A: Birth injuries are generally caused by something that went wrong during child delivery itself, while birth defects usually involve harm to a baby that arose prior to birth, due to something that happened during or before the pregnancy.
Q: What kinds of situations give rise to a lawsuit for birth injuries?
A: Most of these cases occur when a doctor fails to adequately assess or respond to conditions and complications during a woman's pregnancy or delivery, or when a woman takes a prescription drug during pregnancy that causes harm to the baby.
Q: Will a lawsuit always be successful if a baby is harmed through a birth injury?
A: No. Some birth defects (or injuries) are unavoidable. The key question is whether medical providers and/or a pharmaceutical company failed to give you or your baby adequate medical care or medication advice during pregnancy and/or delivery.
Q: What is medical malpractice?
A: Medical malpractice is negligence committed by a professional health care provider--a doctor, nurse, dentist, technician, hospital or hospital worker--whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients. The profession itself sets the standard for malpractice by its own custom and practice.
Q: How common are birth injuries?
A: It has been estimated that, for every 1,000 babies born in the U.S., five will be injured during birth.
Q: In a lawsuit for birth injury, how does a jury determine if a doctor's actions were within the standards of good medical practice?
A: A jury will consider testimony by experts -- usually other doctors, who will testify whether they believe your physician's actions followed standard medical practice or fell below the accepted standard of care. A specialist, like an obstetrician, is held to a higher standard of care -- that of a specialist -- than would be expected of a non-specialist.
Q: I've heard about "teratogens" causing birth defects. What are they?
A: A teratogen is a chemical or agent that causes birth defects in a child. A number of drugs have been found to be teratogens, and many of these were initially meant to aid a woman's pregnancy. These include Delalutin, a drug administered to pregnant women for the prevention of miscarriages, and Bendectin, a medication given to pregnant women, to fight nausea.
Q: How common are birth defects?
A: Estimates are that 7% of all babies are born with a birth defect or irregularity, from very minor to severe.
Q: As a birth defect (or injury), what is cerebral palsy?
A: Cerebral palsy is the generic term for a number of disorders affecting a baby's brain function and body movement. Cerebral palsy can be the result of an injury to a baby's brain in the womb, during delivery, or some time after birth. It can also be caused by a lack of oxygen flow to a baby's brain during delivery.
Q: Who will receive money after a successful lawsuit for a birth defect (or injury)?
A: If a living child suffers harm due to an avoidable birth injury, damages awarded as part of a successful lawsuit will typically go to the child, sometimes in the form of a trust. Parents can receive compensation for emotional distress damages in some situations.
Get an Attorney's Help With Your Birth Injury Claim
Dealing with a birth injury is traumatic, and it can be difficult to know what to do first. After you have sought the treatment, support, and care you need for your child from your healthcare provider, you should understand your legal options. Talk to an experienced medical malpractice attorney right away to discuss a possible birth injury claim.
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