What’s A Parent To Do When Their Child Is Injured During Childbirth?
Childbirth should be one of the most exciting and happy times in parents’ lives, but this joyous moment could quickly become tragic if a doctor or assistant mishandles the birth and the child is injured. While the birth of a child comes with inherent risk, if a doctor provides negligent care that causes injury, he/she may be liable for medical malpractice. A mother in childbirth is in a particularly vulnerable position and almost wholly reliant on medical staff to make reasonable decisions and measured actions if a problem with delivery occurs. Further, a newborn is susceptible to injury due to its undeveloped strength and body structure, which means that when an injury occurs, the consequences are often catastrophic and permanent. Typically, when medical malpractice occurs, the injured patient must file a lawsuit to recover compensation, but if an infant suffers neurological injuries related to childbirth, a special procedure is available as an alternative. Families in this situation have the option of accessing the Florida Birth-Related Neurological Injury Compensation Plan, and bypassing the courts in order to receive compensation quicker and at a lower cost. However, there are drawbacks to this alternative that should be understood before electing this route to recovery.
What Injuries Qualify?
Only certain types of neurological injuries will qualify for a claim under the state compensation plan. This limitation is in place because this is a no-fault compensation plan that only requires suffering specified injuries to receive a compensation award. Thus, only very serious injuries are included. In particular, the injury must involve:
- a live birth of a child weighing at least 5.5 pounds;
- trauma to the spinal cord or brain due to oxygen deprivation or the application of excessive physical force;
- which occurred during labor, delivery or resuscitation just after birth; and
- the injuries caused permanent and substantial physical and mental impairment to the child.
Who Decides Claims?
An administrative law judge (ALJ) has exclusive authority to decide these claims, not a jury, and while a claim is pending no lawsuits may be filed. Further, if the ALJ awards compensation and the family accepts it, no further legal action may be taken to hold someone liable for these injuries. Consequently, this is all the compensation a child will receive for the injuries.
Importantly, damages will only be paid for certain reasonable expenses related to the child’s past, current and future medical needs. Specifically, compensation awards under the no-fault plan are permitted to cover:
- medical and hospital treatment and stays;
- rehabilitative care;
- special equipment;
- family custodial care; and
- professional custodial care.
These awards are generally paid as periodic payments, so the family does not receive the entire amount as a lump sum, though the ALJ does have the option to allow payment in this manner.
This process is intended to be quicker and cheaper, which is primarily possible because fault is not an issue. However, the damage awards are extremely limited, and may not adequately cover all the necessary expenses incurred for the child’s care. In addition, damages for the intangible injuries related to pain and suffering are not available, nor are punitive damages. The doctors and medical staff are never held accountable for the harm they cause, which allows them to continue any unsafe practices with no direct repercussions. Finally, the family never gets their day in court, and the opportunity to receive the psychological release of hearing that someone is responsible for what happened to their child.
The life of a child is precious, and if the quality of that life was severely damaged by a doctor’s negligent treatment, talk to a medical malpractice lawyer about holding the doctor accountable. No one should have to watch their child needlessly suffer, and the lawyers at the Miami law firm of Pita Weber & Del Prado will fight to get you the money your family needs and deserves. Contact us for a free consultation.