Suing for a Traumatic Birth Injury
The birth of a child is one of the most life-changing events a person can experience, but with this joy comes the highly stressful process of childbirth. While the vast majority of births proceed with minimal complications, some can result in serious birth-related injuries to the child and/or mother due to the negligence of the doctor and/or medical staff. These types of injuries can be particularly hard to face because the mother and child are in such vulnerable positions, and must rely on the experience and skill of the medical personnel in attendance. Further, newborns are inherently fragile and can easily be seriously or permanently injured if someone is negligent or reckless. A recent article in Digital Journal discussed a settlement between the Florida Department of Health and the parents of a now six-year-old child that was significantly injured when she contracted the herpes simplex virus during birth, which turned into meningoencephalitis that caused severe brain damage. Although prenatal testing showed the mother had the herpes virus, she was not informed about the condition, nor did she receive any treatment during pregnancy or childbirth to protect the baby. Florida law has specific provisions related to neurological injuries experienced during birth that limit how compensation may be awarded, minus a few exceptions. Given that this law would bind the recovery process for most parents, an overview of this compensation method and the exceptions that permit personal injury litigation will follow below.
Claims and Decisions
The most important thing to know about this process is that it is a no-fault compensation system. This means a family is entitled to compensation if an administrative law judge determines:
- a child suffered a qualifying neurological injury during or immediately after childbirth;
- while under the care of an obstetrician licensed to practice in Florida; and
- the child suffered an injury that left the child permanently and significantly mentally and physically impaired.
The neurological injury must involve injury to the spinal cord or brain of a live infant (stillbirths are excluded under this law) due to oxygen deprivation or mechanical injury during labor, birth, or resuscitation immediately post-birth. A claim must be filed by the child’s fifth birthday, or it is barred.
Once a claim is filed, the administrative law judge must schedule a hearing between 60 to 120 days after the petition is submitted, and the parties are bound by the judge’s decision.
Awards for these injuries are intended to cover the following items:
- actual expenses for medically necessary treatment, rehabilitation, medication, equipment and related travel, which are limited to reasonable charges based on what is commonly charged for a similar service in the community;
- a death benefit of $10,000; and
- reasonable expenses accumulated in connection with filing a claim, including lawyer’s fees.
Note that these awards are typically paid as periodic payments, which cannot exceed $100,000 per payment. Past expenses are usually paid as a lump sum and future expenses as they are incurred.
As stated above, compensation for most injuries of this type will be limited to the system described, but the law does make exceptions in certain situations that will allow a party to file a lawsuit that could result in a higher compensation award. These exceptions apply when there is convincing evidence of the following:
- bad faith, i.e., misrepresentation;
- malicious purpose, i.e., intentional; or
- wanton disregard of human rights, safety, or property.
Note that this type of lawsuit must be filed before a payment award under the no-fault compensation system becomes final.
Consult a Medical Malpractice Lawyer
No parent should have to face a lifetime of suffering for child due to a doctor’s negligent behavior. If you believe your family is the victim such inadequate care, talk to a medical malpractice lawyer to learn about compensation you may be entitled to receive. The Miami law firm of Pita Weber & Del Prado handles a wide variety of medical malpractice matters, and can assess the strength of your claim. Contact us for a free consultation.