Birth Injury Lawyers in Delaware
Our attorneys handle birth injury medical malpractice cases in the State of Delaware. Delaware birth injury cases are some of the most challenging and emotional cases we handle because oftentimes the client is a baby or child. This page will seek to provide general information about Delaware birth injury cases. If you have questions about these types of cases, please feel free to contact us for more information.
What is a Delaware Birth Injury Case?
A Delaware birth injury case is a medical malpractice lawsuit:
– against a doctor, nurse, midwife, birthing center, or hospital,
– in the State of Delaware,
– seeking to recover compensation for wrongful death or injury,
– to mother, child, or other person,
– for negligence relating to the birth of the child.
What are some common types of birth injury cases?
The brachial plexus is a network of nerves in the neck/shoulder that carries signals from the spinal cord down the arm to the hand. Erb’s Palsy is an injury to one or more of the nerves within the brachial plexus. The injury is often caused by pulling on the baby’s head during head-first vaginal delivery. When the baby’s head is out of the birth canal but the shoulders become stuck, pulling or “traction” applied to the head can result in severe and permanent damage to the brachial plexus. The nerve damage can result in the need for surgery to the damaged nerves, failure of the arm and hand to grow, loss of sensation or numbness in the arm and hand, inability to flex the arm or bend the arm at the elbow, inability to raise the arm, and other problems. The word palsy means paralysis. Erb’s Palsy is paralysis, to some degree, to the arm and hand.
Erb’s Palsy is often the result of a foreseeable and completely preventable medical error. The baby’s shoulders becoming stuck is called shoulder dystocia. The baby’s shoulder becomes stuck under the mother’s pubic bone. There are techniques available for resolving shoulder dystocia that do not involve yanking on the baby’s head, exposing the child to the risk of life-long complications from Erb’s Palsy. If your infant has been diagnosed with Erb’s Palsy, you should contact a Delaware birth injury medical malpractice lawyer as soon as possible.
Cerebral Palsy is a condition which can occur as a result of abnormal brain development or damage to the areas of the brain that affect movement. Sufferers will struggle to control their movements, and may experience excessive looseness or tightness of the muscles. Brain function, hearing, vision, and development are often impaired in children with Cerebral Palsy. Symptoms vary among cases. Cerebral Palsy is caused by an event occurring before, during, or after a child is born. Brain injuries occurring during or soon after birth can develop into cerebral palsy.
Some examples of birth injuries which can cause cerebral palsy are:
* Oxygen deprivation
* Being dropped
* Being pulled out with force
* Injuries from instruments like forceps and vacuums
* Labor exceeding eighteen hours
Some examples of pre-birth injuries which can cause cerebral palsy are:
* Injuries to the white matter of the brain
* Abnormal development of the brain
* Brain bleeding
* Inadequate oxygen to the brain
Medical evaluation can determine whether a birth injury occurred and if the birth injury can be linked to Cerebral Palsy. There is no cure for this condition. Cerebral Palsy symptoms will not change over time, and those with the condition will often suffer lifelong complications and sometimes need extensive lifelong care.
Hypoxic / Anoxic Oxygen Deprivation and Brain Injury
Oxygen deprivation during childbirth can cause serious brain injuries to an infant. In fact, this is the main cause of infant brain injury. If the brain is deprived of oxygen for even a short period of time, serious consequences can ensue. The brain needs a constant and uninterrupted flow of oxygen through the blood in order to maintain proper function. There are two ways in which oxygen deprivation to an infant might occur during childbirth.
Hypoxia sets in when a serious decrease in oxygen occurs. Anoxia occurs when oxygen is completely cut off. There are a few common ways in which these complications occur. One possible cause is umbilical cord complication. The umbilical cord is responsible for delivering oxygen and blood to the infant. This flow can be seriously reduced or even eliminated when the umbilical cord is compressed or twisted. Another cause is placental abruption. If the placenta becomes detached from the uterus before birth, the infant will be deprived of oxygen and blood, and an emergency caesarean section must be performed immediately. Other causes include certain maternal illnesses, such as low blood pressure, low blood oxygen levels, severe respiratory disease or infection in either the mother or infant. Delivery trauma from an excessively lengthy birth can also result in oxygen deprivation. Oxygen deprivation can occur when the infant’s airway is improperly formed or somehow blocked. Infant anemia is another cause.
Birth asphyxia, characterized by oxygen and blood deprivation to the brain, has a number of consequences. Depending on the severity of the oxygen deprivation, an infant may or may not experience a full recovery. Consequences range from brain, heart, lung, kidney, bowel, or other organ damage to organ failure and even death. The Apgar score, which is given by medical professionals after birth, can help determine whether birth asphyxia occurred. There are a number of treatments given for birth asphyxia.
Maternal infections are actually a rather common complication of pregnancy. However, when left untreated, they can cause brain damage to an infant. This often occurs during labor and delivery or the final days of a pregnancy. Pregnant women have a heightened risk when it comes to certain infections due to changes in hormones and the immune system, and may experience increased severity. Maternal infection during pregnancy has the potential to harm both mother and baby. Certain maternal infections can actually be transmitted from the mother to the baby during childbirth. The following is a noncomprehensive list of some potentially damaging infections which might occur:
a) Group B Streptococcus is carried by one in every four women. The infection is most commonly transferred from the mother to the baby during vaginal birth. Serious complications can ensue, including stillbirth, and severe infection for the baby, as well as inflammation in the mother. If a severe infection in the baby is not addressed, serious consequences such as birth defects or even death can occur. A doctor should test for Group B Streptococcus at the end of pregnancy.
b) HIV can pose serious dangers. It is important for a pregnant woman who has HIV to seek medical treatment. Certain new therapies, as well as cesarean delivery can help prevent transmission to the baby.
c) Chorioamnionitis occurs when an infection in the mother’s vagina travels to the amniotic fluid or fetal membrane. Chorioamnionitis can also occur if the membrane ruptures prematurely.
d) Toxoplasma gondii is a parasite which is commonly found in raw meat, soil, and in the bodies of most people. However, the immune systems of most of these people prevent the parasite from spreading and resulting in a Toxoplasmosis infection. The weakened immune systems of pregnant women are less able to block the spread. If the infection is transmitted to the baby, it can result in floaters, blurred vision, visual impairment, or blindness.
Wrongful Death of Mother or Baby
In the event that a mother or baby dies as a result of a birth injury, the Delaware Wrongful Death statute permits actions for the benefit of a spouse, parent, child, or sibling of the mother or baby. Calculation of damages will be based on the injury that the plaintiff (the party bringing the wrongful death suit) experienced as a result of the death.
Spinal Cord Injuries and Paralysis
Strain on a baby’s neck during delivery–resulting from twisting, pulling, or the use of tools to assist the baby through the birth canal–can cause spinal cord injury to occur. The results of these injuries can be severe and irreversible. While spinal cord injury can occur anywhere on the spine, most injuries occur in the neck area. Injuries to the lower part of the spine can occur too, and are more common in instances of a breech birth. When spinal cord injury occurs higher up on the spine, the resulting damage and complications are typically more severe.
In cases of umbilical cord complication, rushing a delivery may become necessary to protect the life of the baby. However, improper use of vacuums, forceps, and other tools can not only cause spinal cord pressure and injury, but also brain bleeding and skull fracture. During a rushed delivery, a doctor may pull or twist the baby. When done incorrectly, these actions can result in serious damage.
In the event of incomplete spinal cord injury, the baby may experience impairment, but not experience total paralysis and lack of sensation in the body below the area where the injury occurred. In certain mild cases, full recovery can be possible. A complete injury is one which causes the baby to completely lose the ability to move and feel in the area of the body below the point of injury. Complete spinal cord injuries can cause death, paralysis, and lifelong complications or disabilities.
Some conditions present before birth can increase the risk of a spinal cord injury occurring during delivery. Breech and hyperextension of the baby’s head pose this risk. The risk is increased when instruments are used, as well as when labor is prolonged. Babies weighing more than eight pounds and babies with a low weight are also at a heightened risk for injury. Prematurity is another risk factor. When a mother has an internal infection or preeclampsia, there is an increased risk of bleeding. If there is a missed spina bifida diagnosis during pregnancy, there is a heightened risk of spinal cord injury to the baby. Traditional delivery can be especially dangerous for babies suffering from this condition.
A baby who endured a spinal cord injury during birth will exhibit signs of weakness or paralysis. While treatments do exist, there is no cure for spinal cord injury.
Kernicterus is a condition caused by severe, untreated jaundice and results in brain damage to a baby. Jaundice is a common condition among newborns, in which a baby has excess levels of bilirubin in its blood, and the liver is unable to remove the bilirubin. Kernicterus complications include athetoid cerebral palsy, hearing loss, vision problems, teeth problems, and intellectual disabilities.
Newborns should be tested often for jaundice. The CDC recommends checks every 8-12 hours at a minimum for the first two days, and then another check shortly after discharge–when the baby is 3-5 days old. Jaundice testing can be done in two ways: use of a light meter, or taking of a blood sample. The latter method is more accurate.
There are a number of factors which may place a baby at a higher risk. One of these is skin color. Babies with a dark skin color often suffer missed diagnosis of jaundice. Jaundice can be detected in babies with dark skin through inspection of the gums, inner lips, and blood testing. Babies of Asian and Mediterranean descent have a heightened risk. Premature birth, difficulty with feeding, urination, and elimination, as well as bruising, and a blood type of O or Rh negative factor in the mother all put a baby at a higher jaundice risk. Furthermore, babies with siblings who had jaundice are more likely to experience this condition.
Kernicterus is a preventable condition. This is why early intervention when a baby develops jaundice is so important.
Other Frequently Asked Questions
What is the time limit for filing a birth injury lawsuit in the State of Delaware?
The statute of limitations for medical negligence claims in Delaware is two years. Delaware law allows the statute of limitations to run for an additional year (three years total) in the event that the injury could not have possibly been discovered by the injured individual in an “exercise of reasonable diligence.” If an injury occurs to a child under age six, the child has the time up until his or her sixth birthday or the duration of the aforementioned statute of limitations–whichever is longer–to file suit.
Source: 18 Del.C. § 6856.
Can we get punitive damages in a Delaware malpractice case against the doctor and nurses that harmed my baby?
Yes. Delaware law provides that, in the event of a “maliciously intended” injury or “wilful or wanton misconduct by the health-care provider,” a court may award punitive damages in a medical negligence suit. The award must be made in a finding separate from the determination of compensatory damages, and must be made by the trier of fact. Injuries resulting from accidents or unintentional action are not considered to be maliciously intended.
Source: 18 Del.C. § 6855
While punitive damages may be recovered in a survival action, it is important to note, however, that punitive damages are not available in wrongful death actions.
Source: Reynolds v. Willis, 209 A.2 760, 762-63 (Del. 1965).
My baby was delivered by a midwife, not a medical doctor. Does that make a difference in the medical malpractice case?
A legal claim for negligence is based on a breach of a standard of care, which in turn causes injury. Medical professionals owe a duty of care to their patients. The nature of a medical professional’s position–doctor, nurse, midwife, etc.–will determine the standard of care owed by that individual to the patient. For example, due to a doctor’s education, training and job responsibilities, A doctor may be expected to offer a different level and type of care to a patient than a nurse or midwife would. Evidence of the standard of care can be found in laws, administrative rules, and testimony of medical professionals holding similar positions.