Checklist: Do You Have a Case?

Nationwide Cerebral Palsy Resource Network

After assisting children and families for more than three decades, the goal of Stern Law, PLLC is simply to help you find answers. The legal system is difficult to navigate, and medical practitioners may be less than cooperative. That is where we come in. Our firm helps mothers and fathers address the life-altering consequences of a birth injury caused by medical negligence.

Please call Stern Law, PLLC for a free evaluation of your case: (800)462-5772. For more information about the elements of your claim, please consult the list of questions below:

Do you or your child qualify for compensation in the form of Lifetime Benefits?

If you recognize something is wrong with your child and do not know why, it can be incredibly stressful. You have joyfully anticipated the birth of your child and are now faced with a very different reality. The first thing you want to know is why. An initial case review known as a Medical Legal Review can give you some of the answers you seek, and help you face the future with knowledge and hope.

If your child’s impairment is due to a birth injury, the law permits families, through the litigation process, to pursue Lifetime Benefits in the form of monetary awards. Monetary awards – compensation for injuries incurred – can be used to fund expenses, such as your child’s medical treatment, therapies, adaptive equipment, medications, communication devices and home or automobile modifications.

Doctors and other medical professionals: Who is at fault?

If a baby is injured before, during, or after the birthing process, there generally has to be a reason. Something happened during an expectant mother’s pregnancy, birth, or after birth care that affected her baby. When this occurs, it’s possible that any one of these individuals or entities may be responsible for a child’s condition?

  • Obstetric gynecologist;
  • Pediatrician;
  • Neurologist;
  • Anesthesiologists;
  • Pharmacists;
  • Nurses;
  • Hospital staff;
  • Hospitals;
  • Health care facilities.

Although anyone can commence litigation against someone else, successful litigation generally requires establishing that the defendant deserves to be sued. The defendant is the person, persons, or entity being sued by the plaintiff.

To establish that the defendant is at fault, proof must usually exist of an established medical doctor-patient relationship between the defendant and the plaintiff at the time of occurrence. In extreme situations when a patient is unconscious and in need of emergency care, it is implied that doctors and other medical professionals at the facility are to provide the care required to save the patient’s life, even if a patient was not able to formally consent.

A case can have multiple defendants. Though the law in each state varies, typically all individuals deemed responsible for the negligent care – including the medical facility that employs them and the facility providing the care – may be listed as defendants. In some states, all parties proven to be at fault are held fully responsible for one-hundred-percent of damages, or so-called “joint and several liability.” Other states divide the total amount of damages between defendants based on the entity or individual’s degree of responsibility.

Did a doctor, another medical professional or hospital breach the standard of care?

The question of whether a trusted doula, midwife, physician, medical practitioner or member of his or her medical staff caused harm to a child can be a difficult concept for a parent to accept. After all, many of these individuals were with you throughout your pregnancy, supporting you as you prepared for the birth of your child. Despite your hopes and dreams for your child’s future, something went wrong.

Despite the difficulty of laying blame, most parents would consider the health and well-being of their child above any other concern. Healthcare professionals, birthing centers, medical facilities and hospitals have an obligation to provide appropriate care to their patients. This duty of care requires the provision of medical care that falls within generally accepted standards of care in the medical profession.

When a physician or medical facility fails to meet the required standard of care, whether it is intentional or accidental, leading to your child’s injury, your child may be entitled to monetary damages which you can then use to provide the medical care, education and accommodations your child will need to achieve his or her fullest potential.

Doctors and other medical professionals generally have a duty to:

  • Obtain informed consent;
  • Be clinically competent;
  • Be duly licensed;
  • Not abandon or neglect the patient;
  • Protect the patient from harm to the best of their abilities within reasonable medical standards of care;
  • Assist the patient if harm occurs to limit permanent injury.

The health care facility generally has the responsibility to:

  • Establish and enforce policies and procedures;
  • Verify credentials of its medical professionals;
  • Train staff properly;
  • Monitor performance of its staff;
  • Provide a safe environment;
  • Provide a clean environment.

Proving a breach of duty generally involves establishing the standard of care that a “reasonable” person with similar qualifications would provide to a child under similar circumstances. A breach of duty is usually an action the defendant takes, but it could also be an omission when there is a duty to act. Usually, this is proven through expert medical testimony.

In some states, the standard of care can vary with the location of that care, or the type of facility providing the care. For example, a doctor and medical staff in a low-funded, rural institution in some states might not be expected to have the same resources at their disposal as a well-funded, cutting-edge urban medical facility. Often, attorneys research the policies and procedures of the facility, the equipment and technology available to the doctors and other medical professionals, and the qualifications and experience of the professional. Other elements, such as the options available to the doctor at that particular facility, or similar facilities, at the time of occurrence, are also considered.

Factors used to determine whether reasonable care was exercised generally include:

  • If the harm was foreseeable;
  • If the damage was foreseeable;
  • Whether precautions were taken to eliminate or reduce risks.

Was there a disclosure breach?

Doctors and other medical professionals must present patients with available, pertinent, and relevant information in order for the patient to be properly informed before consenting to treatment. An expectant mother has the right to be armed with all available information in order to make the decision that is best for her baby. A disclosure breach occurs if the patient agrees to a decision without being informed of all available relevant information. In this scenario, it’s mandatory to demonstrate that a sustained injury would not have occurred had the doctor disclosed the missing information to the patient, who, in turn, would have denied consent to the treatment.

A disclosure breach may include:

  • Informed consent – This is a failure to obtain informed consent, unless it is an extreme emergency.
  • Treatment disclosure – This is a failure to disclose the required treatment.
  • Risk disclosure – This is a failure to disclose treatment risk, failure to disclose alternative treatment risks, or failure to disclose risk of refusing treatment.
  • Alternative treatment disclosure – This is a failure to disclose alternative treatment.
  • Confidentiality – This is a failure to maintain patient privacy.

Was there a diagnosis error?

Failing to properly diagnose a condition requiring medical intervention in an appropriate time frame under some circumstances can be fatal, or cause severe injury to a child. One question an expectant mother might ask is whether the doctors and nurses were paying attention to her? Or, were there other things going on that distracted them from her? As the patient, she would know when the focus was not where it should have been – on her and her baby. Did a doctor’s failure to diagnose a condition in a timely manner result in an injury to her child?

Diagnosis errors account for some of the largest awards, or judgments. To properly diagnose, the doctor must order appropriate tests in the time frame deemed reasonable for symptoms or circumstances experienced by you or your baby. Misdiagnosis can lead to injury or impairment in cases where you or your baby were inappropriately treated for a condition you did not have, or your child did not have. Harm must be proven to have occurred because of the diagnosis error. Failing to diagnose, delaying a diagnosis, or misdiagnosing can be negligent when you or your child is harmed.

Diagnosis errors include:

  • Failing to diagnose;
  • Failure to conduct warranted tests;
  • Failure to diagnose pregnancy;
  • Failure to diagnose complicated pregnancies, such as uterine, ectopic, or multiple pregnancy;
  • Harmful delay in diagnosis;
  • Avoidable delay, or denial, of tests;
  • Avoidable delay, or denial, of referral to a medical specialist.
  • Misdiagnosis;
  • Misinterpretation of test results or monitor reads;
  • Failure to properly act on test results or monitor reads;
  • Failure to properly calculate gestational age.

Was there improper treatment before, during, or after birth?

Improper medical treatment can occur before conception, during pregnancy, during birth, or immediately after birth. Mistakes that are made during a medical procedure will often fall into the improper treatment category, especially if the errors occurred during commonly performed procedures. Errors must cause harm, and it must be shown that the harm was a result of breach of duty and the standard of care. Mistakes during very difficult circumstances may not qualify, as the procedure or risks may be acceptable under certain extenuating circumstances.

Improper treatment at or following birth may include:

  • Performance of an unwarranted cesarean section;
  • Delayed treatment;
  • Avoidable delay in treatment or response;
  • Denial of treatment.

If you suspect that you or your baby received improper treatment – that your child was injured before, during, or even after birth – you should trust your instincts. There is nothing a mother would not do to protect her child. It is important for you to get answers about why this terrible thing happened to your child.

You have many things to consider, as many different factors may have led to your child’s injury. The following considerations may lead you in the right direction.

The explanation a mother seeks may be found if any of the following circumstances occurred:

  • If you developed an infection – Bacterial, viral, fungal, parasitic, or sexually transmitted infections may place your newborn baby at risk. Conditions such as German measles, toxoplasmosis, rubella, cytomegalovirus, herpes, or a urinary tract infection may also cause injuries.
  • If you had preeclampsia or hypertension during your pregnancy or during labor – If these conditions were not treated quickly or appropriately, they can result in a birth injury or injury to you.
  • If doctors, nurses or other obstetric specialists failed to order any specific tests – All appropriate tests or studies should have been administered during your pregnancy.
  • If your baby lacked nutrients – Did your child at any time during your pregnancy lack nutrients?
  • If doctors or nurses failed to notice any significant changes in a baby’s heart rate – Changes to your baby’s heart rate should be monitored during your pregnancy.
  • If you had a fever that was 100.4 F or greater – Did you have a fever during your pregnancy, or during labor?
  • If you experienced excessive bleeding during pregnancy - Was bleeding improperly treated?
  • If you experienced premature rupture of the amniotic sac or premature separation of the placenta – If these conditions went untreated, it may have put you and your baby at risk.

A mother must also consider the events that occur during labor and delivery. Some of the events or conditions that can harm a baby include:

  • A placenta rupture.
  • Maternal shock from heavy bleeding and fetal distress that leads to placenta abruption.
  • A lack of oxygen before or during the birthing process.
  • The presence of meconium, or fecal material, in your fluids when your water broke.
  • If it took more than 24 hours to deliver after your water broke.
  • If doctors or nurses failed to order any specific tests or studies during your labor.
  • If the doctors or nurses failed to interpret any specific tests or studies during your labor.
  • If you had preeclampsia or hypertension during labor that was not treated quickly or appropriately.
  • If your baby was delivered with forceps or with a vacuum extraction device.
  • If your baby was injured by the forceps or vacuum extractor.
  • If your baby was stuck in the birth canal during a long labor, or if doctors or nurses failed to deliver your baby in a timely manner.
  • If there were any umbilical cord problems, such as prolapsed cord, that could choke your baby during delivery.
  • If your baby’s head was too large to fit through the birth canal (known as cephalopelvic disproportion) and a cesarean section was not performed.
  • If your baby was born with shoulder dystocia, a very serious situation where one or both shoulders impede delivery.
  • If your baby’s heart rate indicated fetal distress at any time during the delivery, and doctors or nurses failed to monitor it or diagnose any significant, sustained changes in your baby’s heart rate.
  • If the doctors or nurses failed to perform an emergency c-section when they knew – or should have known – that your baby was in fetal distress.
Consult our Medical Malpractice checklist to determine if you have a case

Was a child’s condition the result of medication, prescription, or pharmacy errors?

Pharmacy errors relate to mistakes made by pharmacy staff, including pharmacists. These errors can include dispensing medicine in incorrect doses, mislabeling prescriptions, and providing the wrong medication altogether. Pharmacists may also err when accounting for potential drug interactions and allergies.

Prescription errors are usually the responsibility of the prescribing physician or anesthesiologist. Doctors must take reasonable measures and precautions to determine if a particular drug is capable of having adverse effects on a patient. Reasonable measures would include testing for patient reaction and heeding patient information on hypersensitivity or allergy. Just as important, doctors are obligated to inform patients of potential medication side effects, complications, or risks. As in all cases, the breach of duty must result in definitive harm to the patient in order for litigation to be warranted. The error must have led to the harm of you or your baby.

Pharmacy errors include:

  • Dispensing medicine in the wrong dose.
  • Mislabeling prescriptions.
  • Providing the wrong medication.
  • Failure to account for potential drug interactions and allergies.

Medication and prescription errors include:

  • Prescribing the wrong drug.
  • Prescribing the wrong dosage.
  • Prescribing a medication to which the patient is allergic.
  • Prescribing incompatible medications, thereby causing adverse drug reactions.

Medication administration errors include:

  • Inappropriate or incorrect use of prescribed medications.
  • Administering anesthesia incorrectly.

Did your child experience a birth injury?

Birth injury negligence or malpractice occurs when you or your baby suffers harm, impairment, or injury around the time of delivery due to physician or hospital error. The error can be intentional or accidental, but the catastrophic impact on you and your child is the same.

Many birth injuries result in long-lasting or permanent impairment, disability, or even death. Asphyxia – when your newborn’s brain is deprived of oxygen – is one such condition and occurs frequently. Asphyxia can cause serious complications. The brain can sustain similar injury as a result of infection, physical damage, or trauma to the infant during delivery.

Birth injury may involve:

  • Failure to recognize fetal distress or birth asphyxia as described on the fetal monitor.
  • Choosing an inappropriate delivery method based upon the circumstances.
  • Failure to timely perform an emergency cesarean section.
  • Inappropriate delay in performing an emergency cesarean section, typically a delay exceeding 30 minutes.
  • Failure to identify or properly treat umbilical cord complications.
  • Failure to notice or respond to the fetal condition.
  • Failure to notice and respond to maternal hypertension or toxemia.
  • Inappropriate, excessive, or incorrect use of vacuum extraction or forceps, resulting in physical brain injury to the baby, or injury to the face, neck and shoulder.
  • Failure to assess or respond to complications or disorders during the birthing process.
  • Failure to properly identify and treat high risk pregnancy or delivery.
  • Failure to properly resuscitate a distressed baby at birth.
  • Failure to treat seizures.
  • Failure to treat jaundice.
  • Failure to treat meningitis.

Was there a system failure or administrative error?

There are times when a breach of duty may occur due to administrative error. It is particularly disturbing to consider the fact that a clerical error may have disastrously altered the course of your child’s life, and that of your family, but in order to get the compensation that your child deserves, every option must now be thoroughly investigated.

It is possible that the medical facility or hospital may be responsible for system failures or administrative errors that resulted in the birth injury suffered by your child. In these situations, an employee of the facility may have committed a negligent act and the facility becomes liable for the actions of its employee. In some situations, the facility did not have policies or procedures in place to address or prevent the problem and is therefore solely responsible for the failure. In other situations, the facility management did not hire, train, oversee, supervise, or manage an employee properly.

Was your child the victim of an equipment failure?

Failure to maintain equipment and service agreements on equipment used on, or for the benefit of, patients can lead to unnecessary harm or injury.

Parents who would like to learn more about the circumstances surrounding the cause of their child’s birth injury and the consequential impairment or disability – and whether the child’s circumstances may qualify the family to pursue Lifetime Benefits – are encouraged to call Stern Law, PLLC at (800)462-5772. For more than 30 years we have been committed to seeking justice and fair compensation for children and families. Contact us today for a free consultation.