Birth injuries can occur before, during, or just after a child is born. These injuries can be temporary, such as a broken bone, or lifelong conditions, such as cerebral palsy. When these conditions are brought on by the carelessness of a doctor, nurse, or other professional, the law offers a means of compensating for injuries suffered. Below is a brief overview of these claims, as well as common birth injuries.

Elements Of A Medical Malpractice ClaimBirth injuries are a type of medical malpractice claim. A valid medical malpractice claim requires a plaintiff to prove four things. First, the plaintiff must establish that the doctor owed a duty of care to the plaintiff and what exactly that duty was. This is a strange way to state a simple concept: a medical professional is expected to exercise care in treating a patient. Exactly “how much” care is also a simple answer. The professional is expected to exercise the expertise and skill of a professional in that field. Thus, a doctor is expected to work with the knowledge and care of a doctor and a nurse must work with the knowledge and care of a nurse. When a medical professional’s actions fall below this standard, the second element is met. Third, the breach must cause injury. Causation can be extremely difficult to establish in medical malpractice cases. The plaintiff must prove that the actions of the doctor brought about the disease or condition complained of, which can be very difficult when a disease is still largely unknown or may be caused by several things. One example is cerebral palsy, which can be caused by birth trauma, but the cause of most cases is still unknown. The final element that must be proven is the easiest: injury. The injury can be a temporary condition or a lifelong ailment, even including death.

When a plaintiff succeeds in bringing a medical malpractice claim, they can recovery monetary damages from the careless doctor. These damages include medical bills, both past and future. This can be extremely important in the case of lifelong conditions that are brought on by the doctor’s negligence. A child’s pain and suffering can also be compensated. This is a good point to clarify: it is the child that is compensated for the malpractice claim, not the parents. This means that the pain, suffering, and mental anguish compensated is that of the child, not of the parents. Damages can also include loss of earning potential and enjoyment of life, compensating for opportunities the child will never be able to experience due to the long-term effects of the injuries. However, Kansas has capped all damages for medical malpractice cases via statute. This means that a jury’s award of damages will be limited to the figures outlined in Section 60-19a02: $300,000 for injuries occurring between July 1, 2014 and July 1, 2018; $325,000 for injuries between July 1, 2018 and July 1, 2022; and $350,000 for injuries after July 1, 2022. In the context of most birth injuries, long term effects will easily place damages over these caps, meaning recovery will be limited by these numbers.

Common Types Of Birth InjuriesBirth injuries can come in an endless variety of ailments and conditions. Common examples include physical ailments caused in difficult births and by mishandling the child, such as broken bones or bruising. Other conditions can develop from various occurrences, such as cerebral palsy when oxygen is cut off from the brain or meconium aspiration syndrome when fluid fills the newborn’s lungs. These conditions are brought on by failure to properly diagnosis, monitor, or otherwise treat the mother and the baby. Simply because a birth injury occurs is not sufficient to bring a claim for medical malpractice. The plaintiff must show specific actions or inactions by the doctor that caused the condition or ailment.

Showing which actions caused a birth injury can be difficult, as noted above. To do so, a plaintiff will generally have to use expert witnesses to testify about highly scientific medical information. The plaintiff is not required to rule out all other causes of the injury, but they must offer enough evidence to show a jury it is more likely than not that the carelessness caused the condition to develop. Defendants will often try to muddy the waters by using their own expert to offer contradictory evidence. A jury can easily be confused if defense experts are not sufficiently reigned in.

Death Of The ChildIf a birth injury results in the death of the child—even before the child’s actual birth—the parents can bring a wrongful death claim against the careless medical professionals. Section 60-1901 creates the cause of action for wrong death under Kansas law. To recover, a parent must show that the wrongful actions or inactions of another caused the death of the child. Subsection c of the statute makes clear that even the death of an unborn child is actionable, meaning that careless medical care resulting in a child dying while in the womb can still constitute a wrongful death claim.

When a birth injury occurs, the experience can be tragic and jarring for the new parents. Careless and substandard treatment by doctors can create lifelong struggles for the newborn child. Recovery for these injuries is complicated by the extremely complex and scientific information that these claims involve. When a birth injury has occurred, it is extremely important to contact capable and experienced legal counsel. Attorneys with experience in medical malpractice cases can ensure that injuries are redressed to the maximum extent allowed by the law.