Tag Archives: birth injuries florida

Who can sue for a birth injury?

Medical mistakes can cause injury to an otherwise healthy baby at any time during pregnancy, delivery or shortly after childbirth. Even the mishandling of an infant by any hospital worker can have lifelong consequences. Doctors are trained and required to adhere to a proper standard of care to prevent birth injuries. If a doctor fails to tell the mother of possible complications or makes a misdiagnosis, that standard of care may be violated. If medical staff fails to follow protocol, both the mother’s and the baby’s lives could be endangered.

Examples of birth related injuries:

  • Cerebral palsy
  • Shoulder dystocia/Erb’s palsy
  • Hypoxia (brain damage)
  • Failure to diagnose fetal distress
  • Failure to perform a C-section
  • Failure to diagnose preeclampsia/eclampsia in the mother
  • Injuries to the mother
  • Use of unsanitary surgical utensils
  • Incorrect incision
  • Organ puncture or perforation

With medication errors, sometimes the doctor, hospital staff, or pharmacy prescribes, either due to a faulty diagnosis or negligence, the wrong dosage of a medication. These medication errors may lead to the life-long injury or even wrongful death of an infant. Such grievous injuries are also often attributed to diagnostic error, such as misdiagnosis leading to the wrong type of therapy, failure to use an indicated diagnostic test, or misinterpretation of test results and equipment failure.

Other errors and complications leading to birth injury include: lack of planning for a Cesarean section or delay in performing it, excessive force used in delivery, prolonged labor, improper medication, inadequate monitoring of the baby, improper use of forceps and vacuum, lack of proper attention to a high-risk pregnancy, spinal cord injury caused by overstretching, low amniotic fluid, uterine rupture and placental abruption.

Brain injuries are the most serious of birth traumas, whether they’re caused by bleeding in the skull and brain or oxygen deprivation. If a doctor, nurse or other medical professional fails to handle an infant with proper care, the baby’s delicate brain tissue can be damaged. The result for the young victim could be long-term seizure disorders, cerebral palsy or mental retardation. Children who suffer these afflictions may require therapy, medication and other medical care.

If complications occur and a doctor fails to follow protocol, resulting in lifelong injuries aside from brain damage and cerebral palsy may include Erb-Duchenne and Dejerin-Klumpke palsies (brachial plexus injuries), temporary paralysis, fractured collar bones and meconium aspiration syndrome. Another major birth complication is oxygen deprivation, which can occur when the umbilical cord gets twisted or compressed. Another major cause of birth injury involves mechanical trauma, cases in which the baby is in an abnormal or “breech” birth position or when the baby is too big to normally pass through the birth canal. Other minor birth injuries such as bruising and swelling, broken blood vessels in the eyes, and even temporary loss of nerve or muscle function can heal within a few weeks, but damage can be permanent if nerves are actually torn.

If your child was injured during or before birth as the result of a surgery, medication, or other medical treatment, and you believe the injury may have been the product of medical malpractice, you need an attorney that has experience in dealing with birth injury claims by your side to make sure you receive all the benefits and compensation you are entitled to. You need experienced and aggressive attorneys like Dan Newlin & Partners to help you get everything to which you may be entitled. Call us at (407) 888-8000 for a free consultation and have all your questions answered regarding your injury.

What is negligence and how is it proved?

Because birth injury claims involve the breach of a civil duty (as opposed to a contractual duty) that is owed to someone else, they are considered a tort crime. Necessary for the success of any tort action is a strong showing of negligence, or the breach of the standard of care owed to another person. Negligence, in terms of a birth injury or medical malpractice claim, means that because of the trusting, confidential relationship between a health care provider and a patient, and because of a doctor’s special skills and training, doctors owe their patients a special duty of care not normally owed to any given person from another. By establishing the applicable standard of care required in a given patient’s case, while also showing where a given medical professional deviated from the applicable standard of care, a patient can prove where negligence did occur. In essence, without a definitive answer concerning the appropriate standard of care in a given case, a patient’s claim of negligence is without merit, save for rare circumstances.

While state law generally determines how negligence is defined, the “standard of care” is generally defined by the medical community. It’s not the measure of what is optimum care or even the measure of what an expert thinks should have been done in hindsight. The issue is whether any reasonable physician could have done what the doctor in question did, based on the available information. Help defining “acceptable practice” can come from a medical expert’s experience, medical texts, literature and publications from groups such as the American Medical Association. However, in most cases the standard of care the doctor deviated from must be established at trial by expert testimony. In some states, this expert testimony must be established before a victim can even initiate a lawsuit. In essence, the only definitive method to determine the applicable standard of care, where and when a breach of standard of care (or negligence) occurred, as well as ascertaining whether a given instance of negligence caused damages can only be done by a medical expert witness. Through legal counsel, a patient will provide details and case-specific information to a third-party medical expert, who will testify concerning the elements of a given case, based on his or her professional opinion. In addition to expert testimony, negligence can be illustrated via the following means, among others:

  • Letters received from your hospital or health care provider
  • Medical receipts
  • Test results
  • Information related to your diagnosis
  • Doctor’s notes
  • Pictures of injuries
  • Any personal log entries recorded regarding your child’s medical history

Certain cases, albeit only a fraction of birth injury claims, will not require any proof of the applicable standard of care. In short, the damages sustained by a patient are obvious enough, per the view of a reasonable, third party, non-professional, to constitute negligence. Typically, even in these cases, providing expert testimony is a good idea, but may not necessarily be required to prevail in court, per applicable state statutes governing medical negligence.

If your child was injured during or before birth as the result of a surgery, medication, or other medical treatment, and believe the injury may have been the product of medical malpractice, you need an attorney that has experience in dealing with birth injury claims by your side to make sure you receive all the benefits and compensation you are entitled to. You need experienced and aggressive attorneys like Dan Newlin & Partners to help you get everything to which you may be entitled. Call us at (407) 888-8000 for a free consultation and to have all your questions answered regarding your injury.

Who can be sued for birth injuries?

If your child is injured before, during, or following delivery, you may be able to sue the hospital for negligence or medical malpractice. Though hospitals are often on the hook for incompetent care provided by employees like paramedics, nurses, and medical technicians, they often are not responsible for a doctor’s medical malpractice. There are many reasons why a hospital may or may not be responsible for medical malpractice committed by its employees and staff doctors.

If someone is an employee of a hospital, the hospital is responsible (liable) if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital is on the hook for any resulting injuries to the patient. Remember that not every mistake or unfortunate event that happens in a hospital rises to the level of negligence. Typically, nurses, medical technicians, and paramedics are hospital employees. As long as the employee was doing something job related when he or she injured the patient, the patient can sue the hospital. For example, if a paramedic employed by the hospital injects the wrong solution into the patient on the way to the hospital, particularly if the medical situation is not life threatening, then the hospital is liable for the paramedic’s mistake. However, if a doctor makes a mistake and injures a patient while working in the hospital, the hospital will not be liable for the doctor’s mistake unless the doctor is an employee, which is actually unlikely. Also, if a hospital employee commits malpractice while under a doctor’s supervision, the patient can sue the doctor, but the hospital may be off the hook. Whether an employee is under the supervision of the doctor when the misdeed occurs depends on whether the doctor was present, and whether the doctor had control to prevent the employee’s negligence. For example, a surgeon may be liable if an attending nurse miscounts the surgical sponges, leading the surgeon to leave a sponge in the patient.

Whether a doctor is a hospital employee depends on the nature of his or her relationship with the hospital. Though some doctors are hospital employees, most doctors are not. Non-employee doctors are independent contractors, which means that the hospital cannot be held responsible for the doctor’s medical malpractice, even if the malpractice happened in the hospital. A doctor is more likely to be an employee (rather than an independent contractor) if the hospital controls the doctor’s working hours and vacation time, or if the hospital sets the fees the doctor can charge.

Even if a hospital would generally not be liable for an independent contractor doctor’s malpractice, a hospital may be held responsible in certain situations. For example, if the hospital does not make it clear to a patient that the doctor is not an employee, the patient can sue the hospital for the doctor’s malpractice. Hospitals attempt to avoid this problem by informing patients in the admission forms that the doctor is not a hospital employee. The situation is different for patients injured in an emergency room. Usually, the hospital does not have an opportunity to inform emergency room patients that a doctor is not an employee. This means that ER patients can often sue the hospital for a doctor’s medical malpractice. There are also a few states that say a hospital can be sued for emergency room malpractice regardless of what the patient believed or was told.

Another way that a court may hold a hospital responsible is if it gives staff privileges to an incompetent or dangerous doctor, even if the doctor is an independent contractor. The hospital is also responsible if it should have known that a previously safe doctor had become incompetent or dangerous. For example, if a doctor becomes severely addicted to drugs and the hospital management knew about it, or it was so obvious they should have known about it, a patient injured by that doctor can sue the hospital.

That said, recent legislation has substantially changed the medical malpractice arena in terms of physician liability. Specifically, certain parts of the new law provide that certain colleges and universities that own or operate a medical school or any of its employees or agents providing patient services pursuant to a contract with a teaching hospital are agents of the teaching hospital and are immune from certain liability for torts. Even so, other parties that contributed to the injury, including manufacturers, technicians, and assistants may be a link to hospital or physician liability.

If your child was injured during or before birth as the result of a surgery, medication, or other medical treatment, and believe the injury may have been the product of medical malpractice, you need an attorney that has experience in dealing with birth injury claims by your side to make sure you receive all the benefits and compensation you are entitled to. You need experienced and aggressive attorneys like Dan Newlin & Partners to help you get everything to which you may be entitled. Call us at (407) 888-8000 for a free consultation and to have all your questions answered regarding your injury.

How long do I have to bring a birth injury claim?

A statute of limitations is a boundary set by the state’s laws mandating how long an injured party has after the injury occurred to bring a claim. The State of Florida has a two-year statute of limitations in medical negligence cases. Generally, this means that the lawsuit must be brought within two years from the time the patient, family member, or guardian knew or should have known with reasonable diligence that the injury occurred, and where there was a reasonable possibility that medical malpractice caused it.

Florida also has a “statute of repose,” another harsh provision in its civil laws. This means that absent fraud, concealment, or misrepresentation, no person may sue a health care provider more than four years after the actual malpractice incident. The effect of this rule is that even if the injured party does not know or couldn’t be expected to know that some negligent act caused the injury, he or she cannot bring a claim four years after the incident occurs in most circumstances.

For example, if a person schedules a surgery to have a limb amputated, but the doctor amputates the wrong limb, the mistake will be apparent as soon as the patient regains consciousness. In this case, the patient would only have 2 years to bring the claim.

On the other hand, consider the case of a person who is released from the hospital following a routine surgery with a scalpel still in their abdomen. This person may continue to live a normal, happy, and healthy life for several years undisturbed. Then, one day 3 years later, perhaps because of an auto accident or some other trauma, the scalpel repositions and punctures the person’s lungs, inflicting unbelievable pain and causing serious injury. Despite the fact that the statute of limitations is only 2 years, the patient did not know and could not reasonably have known about the scalpel left inside. Thus, this person would have 1 year remaining to bring a medical malpractice suit before the 4 year “statute of repose” expires against any parties responsible for the scalpel being left inside after the surgery.

Florida has one significant exception to the 4 year statute of repose, however: “Tony’s law.” Tony’s Law was enacted in 1996 and applies to malpractice incidents that occurred after July 1, 1996. The law states that the 4 year statute of repose cannot prevent a child’s malpractice claim from being heard before the child’s eighth birthday. Be careful, though. The two-year statute can still cut the claim if the parents or guardians knew or should have known of the injury and the reasonable possibility medical malpractice caused it.

If your child was injured during or before birth as the result of a surgery, medication, or other medical treatment, and believe the injury may have been the product of medical malpractice, you need an attorney that has experience in dealing with birth injury claims by your side to make sure you receive all the benefits and compensation you are entitled to. You need experienced and aggressive attorneys like Dan Newlin & Partners to help you get everything to which you may be entitled. Call us at (407) 888-8000 for a free consultation and to have all your questions answered regarding your injury.

Should I bring my claim now or later?

State deadlines are last-chance opportunities. There are many reasons why you should consult a lawyer and file your lawsuit, as soon as you are reasonably sure that you have been the victim of medical malpractice or dental malpractice. Even if you are not sure about the malpractice, and are within the time limit for your state, it is safer to talk to a lawyer and let her or him decide whether delay is advisable. The following are a few reasons for moving promptly on your case:

1. It protects you against having your case dismissed, because you missed the deadline. In some states, the deadline can be extended by a judge on a showing of good reason for the delay. In most states, if you go even one day over the deadline, you are out of luck.

2. It allows your lawyer time to discover what happened. In a Utah case, a woman suffered a surgical injury to the sciatic nerve that runs down the back of the leg. She considered her options for a long time. Finally, just before the time limit ran out, she consulted a lawyer, who filed a lawsuit against the surgeon. When the lawyer got the hospital records a month later, he learned that a hospital employee was to blame, and there was no case against the surgeon. It was too late to sue the hospital, and the plaintiff received nothing.

3. In some states, until you file your lawsuit, you cannot obtain all the facts and medical records, such as x-rays and doctor’s office records, to learn what really happened. It takes time to obtain documents and evidence.

4. In most instances, insurance companies are only concerned with cases that have been filed. They recognize these cases as serious claims and are more apt to settle. An unfiled lawsuit is an empty threat that goes into the inactive file and is ignored.

5. It allows you plenty of time to find the medical expert witness or dental expert witness you need.

6. Memories fade, witnesses move, and essential records may be lost or destroyed. The records and evidence necessary to your case should be gathered as early as possible. A witness statement, made soon after the injury, is more valuable than one made years later.

7. Scars fade, pain subsides, and people adjust to their disabilities. With the passage of time, most injuries, even death, have less impact on a jury. Jurors are more impressed by imagining the suffering and problems facing an injured person, than by hearing the defense lawyers tell them that you have adjusted to your disability, are holding a job, driving a car, and have a happy family life.

8. Many medical malpractice cases and dental malpractice cases are settled instead of going to trial, and settlement negotiations can take a long time. If you wait to file your lawsuit until after the settlement negotiations, your payment could be delayed. But, if your lawsuit is filed before your lawyer begins negotiating with defense lawyers, it is in the pipeline, and he can engage in settlement negotiations, without delaying the trial if negotiations break down.

If your child was injured during or before birth as the result of a surgery, medication, or other medical treatment, and you believe the injury may have been the product of medical malpractice, you need an attorney that has experience in dealing with birth injury claims by your side to make sure you receive all the benefits and compensation you are entitled to. You need experienced and aggressive attorneys like Dan Newlin & Partners to help you get everything to which you may be entitled. Call us at (407) 888-8000 for a free consultation and have all your questions answered regarding your injury.