• Birth Injury Law and How to Hire a Competent Medical Malpractice Lawyer

    Birth Injury Law and How to Hire a Competent Medical Malpractice Lawyer

    Apart from being emotionally difficult, birth injuries can be complex legal problems. There are many factors involved in determining whether a claim can be brought, who is liable for the injury, and what kind of recourse is available to a plaintiff. Critical factors include inquiries into the nature of the injury, when it occurred, the parties responsible, and the potential damages that flow from the injury. This article will highlight some of the major features of these factors and provide an overview of the elements of bringing a claim for birth injury.

    Before continuing with the information, it is important to note that when a person has a medical malpractice claim, they should not delay in speaking with a competent medical malpractice law office. The reason for this comes down to statute of limitations laws in specific states. Each state has their own laws regarding the time limits on when a person can sue for personal injury. If you don't file within this legal time limit, you forfeit forever your chance of filing a claim, regardless of how severe or serious the injury.

    Before delving into the particulars of a birth injury claim, it is important to clarify who is the plaintiff. In birth injury claims the plaintiff is typically the child, with the parents bringing suit on the child’s behalf. In some circumstances the parents may be able to bring suit for their own injuries, such as emotional distress. In any event, it is important to keep in mind that, generally speaking, only the party that suffers the injury may bring suit for that injury.

    The scope of a potential claim is dependent on the nature of the injury. There are two major divisions of injuries, those that cause death and those that do not. If the injury causes death the potential for bringing a suit depends on the circumstances and timing of the injury and the death. If the child survives the injury then an action for birth injuries is almost certainly allowed. In either event it is necessary to find an actor whose conduct was the cause of the injury. This finding can become very difficult in circumstances where the injury was a result of toxic fetal harm and in cases of negligent conduct, especially in cases of medical malpractice.

    Wrongful death claims for the loss of a fetus or child are complex inquires. In many cases it is critical to know when the injury causing death occurred. Wrongful death claims are generally recognized if the injury occurred during viability and the death occurred after birth. Some states do not recognize claims arising from harms that occurred pre-viability, or will only recognize a claim if there has been a live birth. The hardest claims to bring are those where the injury occurred pre-viability and there was no live birth. Not all states recognize such a claim, but there is an increasing trend allowing them. Where such suits are not allowed parents may still be able to recover in some measure by suing for their own emotional injuries.

    In any circumstance of birth injury it is necessary to find a liable party. This process can be very difficult when the harm from the injury does not manifest immediately, or in cases where the harmful effect is subtle. This is often the case when the fetus suffered harm from toxins present in the womb. Toxic torts are an incredibly complex issue. The following is only a brief summation of the major elements. The first issue is discovering exactly what toxins were present in the womb and identifying any potential defendants. The second issue is proving that the toxins were capable of causing the alleged harm, and that they were in fact the cause of the harm. The third issue is proving that the defendant was directly responsible for the presence of those toxins, and that the harm was a foreseeable result of such. Generally speaking, proving causation in this context requires a tremendous amount of highly credible scientific evidence.

    Birth injury suits can also be brought against parties whose intentional or negligent behavior caused the injury. A person who batters a woman and consequently hurts a fetus can be liable for resulting injury. A negligent driver who causes an auto accident can also be found liable for birth injuries. In either of these cases a plaintiff must prove causation. In the case of intentional torts, like battery, causation is somewhat easier to prove. Where an actor is merely negligent, like causing an auto accident, proving causation can be more difficult. The difficulty of proving causation is dependent on the proximity of the link between the birth injury and the accident.

    Medical malpractice is a specific form of negligent behavior that can give rise to birth injuries. A doctor is negligent when they fail to act reasonably in providing care to their patients. Providing reasonable care in the medical field includes fully informing their patients about the risks and alternatives to medical treatment, and abiding by the standards and customs of their practice. Generally speaking, a doctor has failed to fully inform a patient when:

    1) the doctor has omitted information about a risk of harm, and
    2) having such information would have caused the patient to choose differently, and
    3) the undisclosed harm actually occurs.

    A medical care professional may also be liable if they deviate from custom and such deviation causes harm. A plaintiff who pursues this cause of action must prove custom by affirmative evidence of such. A plaintiff must also show that the harm actually resulted from the deviation. The failure of a doctor to achieve the best results or unsuccessful treatments are not grounds for a negligence action without first proving deviation. Even if there is evidence of possible alternative treatments, it is not negligence if the actual treatment was not a deviation from custom. Doctors are generally bound by customary medical practices, and they are said to have all the knowledge and skill held by members of the profession. Thus a doctor may not defend themselves by claiming ignorance of custom.
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