In this post, we will look at Delaware birth malpractice lawsuits. We will review some of the key points of Delaware law in birth injury cases and discuss the potential comparative value of these claims.
What are birth injuries?
If a baby sustains any type of physical harm during labor and delivery, it is considered abirth injury. Childbirth is a notoriously difficult process for both mother and child, and some birth injuries are a natural and unavoidable consequence. However, in many cases, a birth injury is something that could have been easily prevented and is the direct result of negligent medical care during labor and delivery. Some of the most common medical errors that cause birth injuries are:
- Excessive pulling or twisting of the baby during vaginal delivery
- Negligent use of obstetric instruments such asNeverovacuum extraction
- Negligent administration of medications such asPitocininduce labor
- Lack of adequate monitoring and alertsfetal heartbeatDevices
- Failure to plan and perform an emergency caesarean section (C-section)
common birth injuries
Below are the injuries we see most often in Delaware medical malpractice lawsuits for birth injuries.
Cerebral palsy:Cerebral palsy is a physical disability in which the brain is unable to transmit normal movement signals to certain muscles in the body. As a result, a person with cerebral palsy cannot control these muscles like a normal person. Cerebral palsy is caused by damage to a baby's brain caused by lack of oxygen during labor and delivery or before pregnancy. There are a number of complications that can arise during childbirth that can lead to oxygen starvation. The doctor and delivery team should prevent this by closely monitoring the baby's heart rate and intervening with an emergency caesarean section in an emergency.
pea paralysis:Erb's palsy is a common birth injury that leaves a child with partial or complete paralysis of one arm. In some cases, the arm is permanently disabled. Erb's palsy occurs when nerves at the brachial plexus nerve junction (where the neck meets the shoulders on either side) are damaged by physical trauma during childbirth. Damage to these nerves disrupts the brain's ability to control arm and hand movement.
RUN:Hypoxic-ischemic encephalopathy (HIE) or perinatal encephalopathy is a very serious type of injury to the baby's brain that can sometimes occur due to complications during childbirth. HIE is caused by an acute loss of oxygen and blood to the baby's brain during birth. Various complications likecompressed umbilical cord,internal uterusplacental solutionit can cause this type of oxygen deficiency and lead to HIE.
broken bones– Clavicle or clavicle fracture is the most common fracture during labor and delivery. This can happen if the doctor pulls too hard on the baby or if the shoulder is pulled hard during a long labor.
Delaware Statute of Limitations in Birth Injury Cases
Under the Delaware statute of limitations for medical malpractice claims, a birth injury claim must be filed within 2 years after the cause of action "arised" (Del.Code § 6856). So when does the cause of action arise? Unlike many other states, Delaware does not follow the "discovery rule" to determine when a cause of action arises (and the SOL period begins). This means that Delaware's 2-year period begins on the date the alleged medical misconduct occurs (not when it is reasonably discovered).
In factual circumstances where medical malpractice could not be discovered within the 2-year period, Delaware law allows the statute of limitations to be extended by 1 year (Del. Code Section 6856(1)). This makes Delaware's statute of limitations one of the strictest in the country.
In a case of medical malpractice at birth, both the injured child and the child's parents may have their own separate causes of action against the defendants. Parents can claim reimbursement for the costs of caring for the child up to the age of 18 and associated pain and suffering. The child can sue for punitive damages, future medical expenses (after age 18), and disability during adult life (if the injury leaves them permanently disabled).
The general 2-year statute of limitations for negligence applies to separate parental claims for birth injury. In most cases, this 2-year period begins on the child's date of birth (which, in most birth injury cases, is also the date of the injury).
Separate malpractice claims of the injured child in a birth injury case are subject to an extended statute of limitations. Under Delaware law, the injured child is entitled to a birth defect up to the age of 6.hebirthday to file a malpractice lawsuit.
What is required to prove a claim for negligent birth injuries in Delaware?
To prove a medical malpractice claim based on a birth injury under Delaware law, the plaintiff must prove three key elements.
First, the plaintiff must explain what level of medical care was applicable in the circumstances. In other words, the plaintiff must show what a reasonable doctor should do in the same circumstances.
Second, the plaintiff must prove that the defendants' actions deviated from or did not meet applicable standards of care. Here the plaintiff must prove that the doctor or hospital staff made a mistake or were negligent in some way.
Finally, the plaintiff must present evidence that the alleged birth injury was caused directly by the defendant's medical error or negligence (and not by anything else).
Certificate of Merit Required for Delaware Birth Injury Cases
To file a Delaware misconduct lawsuit for birth injuries, the plaintiff must have a "sworn declaration” by a qualified medical expert (Del.Code § 6853). If a misconduct claim is not supported by an affidavit, it is automatically dismissed.
The affidavit is essentially a written statement from another doctor in the same specialty as the defendant certifying that the plaintiff has "reasonable cause" for his malpractice claims. This means that just to file a Delaware malpractice lawsuit, the plaintiff must first get another doctor to review the case and certify that the doctors were negligent.
Comparative Value of Delaware Birth Injury Cases
Birth Injury Misconduct Lawsuitsin Delaware it can have a very high potential liquidation value. Generally, the potential value of a birth injury case is determined by two factors: (1) the severity and duration of the alleged injuries; and (2) the nature of the medical malpractice and how difficult it will be to prove in court. The more serious and permanent the injury, the greater the potential value of the case.
Delaware and Urteile Birth Injury Settlements
Below are several reported lawsuits and settlements of birth injury malpractice cases in Delaware. There are not many birth injury lawsuits in Delaware, let alone not bound by confidentiality agreements for settlement amounts. But these few results, along with other benchmarking tools, are still instructive in better understanding the potential range of values for you and your child's entitlement.
- $4,000,000 verdict:The boy suffered a brain injury from lack of oxygen and was diagnosed with cerebral palsy. A birth injury lawsuit alleged that hospital staff acted negligently when they failed to carefully monitor the fetal heart strips and called the doctor when warning signs appeared. The lawsuit also alleged that the doctor failed to properly manage the pregnancy and treated the delivery as high-risk.
- $225,000 Comparison:The defendant midwives were unable to diagnose intrauterine growth retardation during the plaintiff's pregnancy or placental abruption the day before the birth of a stillborn child. In addition, Plaintiff claimed to be in emotional distress when Respondent's newsletter listed the stillbirth as a live birth. The case settled for $225,000.
- $3,535,000 Comparison:A newborn male suffered from cerebral palsy and severe intellectual disability due to lack of oxygen during delivery at the defendant's hospital. The lawsuit alleged that the defendants misdiagnosed the mother as having suffered a miscarriage and administered medications that were contraindicated during pregnancy because they restricted blood flow to the uterus.
Contact Miller & Zois for your Delaware birth injury case
Miller & Zois handles birth injury claims across the country. If you have a birth injury case, call us today at 800-553-8082 or get onefree online consultation.