LITIGATING THE BIRTH INJURY MALPRACTICE CASE

Birth injury cases are among the most difficult and complex cases that can be litigated. They involve emotional as well as legal and medical issues which must be carefully handled by your attorney. Obviously, as with any injury there are sensitive issues when one is disabled. When that injury involves permanent disability to an infant who will have to live with these injuries for a life time, the emotional and financial issues can both be devastating. It is an important for your attorney to be aware of these issues and keep them in the forefront of his/her mind when prosecuting these type of cases.

As has been made clear in other pages of this web site, Litigating Complex Negligence Cases & Medical Malpractice Basics, complex cases involve much time and expense and require the participation of experts from many disciplines as well as numerous medical experts to support the client's injuries. When there is permanent disability to an infant that will have lifetime impact on their ability to function and earn a living, the role of these experts becomes more difficult and more important.

Typically, birth injuries involve determining whether a medical professional has deviated from the standard of care in the birth or prenatal care of the infant. This means that your attorney must prove that the medical professional in question has not acted as a reasonable person with the same expertise would have acted under the same circumstances.

When we agree to investigate a potential birth injury case, there are numerous steps involved:

• First, the case must be evaluated
• To evaluate a case all of the medical records must be obtained.
• Then these records must be evaluated by the attorney who must then find an appropriate expert to review the case.
• If the expert believes that medical malpractice occurred, then he must evaluate whether the malpractice is the cause of the birth injury and if this can be proven, then a law suit can be filed.

In every birth malpractice case damages must also be proven. This will also often require multiple fact, medical and other expert witnesses to testify about the infant's injury. This will also include medical experts on both sides who will testify about how the injury will affect the child now as he/she grows into adulthood. Usually, each side's experts will disagree as to the extent or the baby's injuries. The physician testifying on our client's behalf will need to be properly prepared and the other side's expert will have to have his opinions and/or credibility successfully challenged by your attorney. Aside from medical testimony there are often other experts that will be needed. For example:

• If the infant's injuries are such that it is likely it will effect future earning potential, at least to the same extent as she/he would have been able to absent a birth injury, then a permanent wage loss claim will be made. When this occurs a vocational expert may be required to present evidence of the difference in wage earning capacity between what the child would likely have been able to earn without being injured as compared to the diminished earning capacity as a result of the injury.
• An economist might be called to explain to the jury how much a diminished earning capacity will cost the injured child over the course of their lifetime, taking into account inflation and changes in wages etc.
• The infant may have injuries severe enough to require assistance to simply get by in day to day living. In such a case, a life care planner is often required to show what accommodations are needed and how much they will cost, such as the cost of a wheel chair or the cost of building ramps in one's house. This is particularly complex in the case of an infant who will have these needs for a lifetime. For example if the child requires a wheelchair, the expert must be prepared to answer the question of how many different wheelchairs will be needed over the hopefully long lifetime of the baby. Then the expert must be able to demonstrate how inflation will likely affect the cost of the wheelchair over the decades.

Finally, there is the issue of causation. Even if your attorney proves that the defendant physician and/or hospital was at fault in the accident there is still often a fight about whether the actions of the defendant actually caused the birth injury. For example it might be that we are claiming that the injury to the infant was caused by the physician during the extraction of the baby during the birth. Yet the defendant physician might take the position that the injury to the infant occurred in utero before the obstetrician ever even touched the baby. Like all of the other issues in the case, this to must be proven with the use of expert testimony.

The birth injury case brings with it issues and difficulties that are specific to these kinds of cases. At Berman, Sobin and Gross, LLP, we are sensitive to these delicate issues. We also have the experience, knowledge and resources to prepare and litigate the complex birth injury cases and we stand ready to prosecute these cases zealously on behalf of our clients.