INFORMATION ABOUT
NEWBORN MALPRACTICE

We hope that the questions and answers presented here will assist you in familiarizing yourself with some of the main issues and terms associated with Newborn Malpractice. While the material below attempts to answer common questions in this area, State and local laws may significantly modify the facts set forth. Because all legal problems are unique, nothing provided here is a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

MY BABY WAS BORN WITH A BRAIN INJURY. WAS THIS BECAUSE OF SOMETHING DONE WRONG BY THE DOCTOR OR HOSPITAL?

Possibly. The miracle of pregnancy and birth is complex. Many factors during pregnancy, from the time of conception through delivery, can result in injury to the fetus and/or newborn. Of course, the mother may also suffer injuries but that is not the issue raised by your question. Every baby with Cerebral Palsy should raise the question of brain injury during the pregnancy or delivery, in the minds of the parents.

WHAT IS CEREBRAL PALSY?

Cerebral Palsy represents a group of disorders that occur when a baby's or young child's brain is injured. It may especially occur before or during birth. The brain injury results in posture and movement disorders. Although not always, there is usually some level of associated mental retardation. These injuries are lifelong and not reversible. Cerebral Palsy is the most common handicapping disorder in the United States.

WHAT CAUSES BRAIN INJURY BEFORE OR DURING BIRTH? CAN YOU GIVE SOME EXAMPLES?

Any number of things can occur during birth or before, as well as up to 5 years of age, that result in brain injury and damage. Fetal distress is the common denominator that results in the brain injury. The mother could have a difficult labor. This alone does not mean the baby will have a bad outcome but it may increase the chance that the doctor or delivery room nurse could make a mistake thereby injuring the baby. There could also be a traumatic delivery. One example here would be where the obstetrician uses forceps to go after the baby when its head is in the birth canal. The trauma of the forceps around the baby's head could result in internal bleeding in the head.

Early separation of the placenta or damage to the umbilical cord can also result in brain injury. With proper monitoring of the baby this can frequently be prevented. The doctor and assisting hospital staff should be able to recognize early when the baby is in distress due to these problems. Proper action on their part could make the difference between a normal or brain injured child. Sometimes an infection can develop around the time of delivery in the vagina. This can spread to the membranes surrounding the baby causing brain injury. As with the other examples, early recognition by the delivery team can prevent a lifelong catastrophe.

In general, brain injury occurs when the baby's brain does not get enough oxygen. This may occur during some stage of development in the uterus or at the time of delivery. Prompt medical recognition of a problem and appropriate timely action can prevent a bad outcome. The doctor, hospital, and the delivery team owe a duty to the mother and baby separately.

WILL I KNOW IMMEDIATELY IF MY BABY HAS A BRAIN INJURY?

Perhaps, but not necessarily. Brain damage may be subtle and thus not apparent for some time after birth, once development, or lack thereof, becomes more obvious. Even a mild appearing defect can result in significant permanent disability later in life. Fortunately, as a general rule, the parent can bring a malpractice suit in the name of the brain-damaged child up to 2 years after his/her age of majority (18 years or older depending on the state). But each state differs on this time per code.

WHAT ARE SOME OF THE SIGNS OF CEREBRAL PALSY?

Mental retardation occurs to some degree in 75% of cases. This may not be obvious at birth. Things to look for in the baby include sucking and swallowing problems, extremities (arms and legs) that appear to be in an abnormal position, jerky limb movements and poor muscle control, balance difficulties, speech difficulty, weak muscles with poor strength, gait problems (e.g., dragging one leg or foot behind the body while walking), and seizures. Speech difficulties, partial or complete deafness, and visual defects are additional signs of a problem. If any or all of these manifest themselves during the baby's development, prompt medical consultation should be sought.

DO I HAVE TO HAVE AN ATTORNEY?

Yes. In order to prove negligence, you will need to retain experts to testify on your behalf about what occurred, from a technical sense. The negligent party will then retain its own experts to contest everything that you say. The attorney will be able to help you find experts and cross-examine the other party's experts as well. It would be most difficult, if not impossible, for a non-lawyer to handle a newborn malpractice case.

HOW DOES MY ATTORNEY GEY PAID?

Most attorneys review potential malpractice cases on a contingent or percentage fee basis. This means that the attorney's fee will be a percentage of the amount recovered on your behalf. If there is no recovery, then you will not owe any fee to the attorney. Most attorneys will even advance the expenses needed to bring the case to trial, and then get reimbursed for those expenses from the recovery. All of these details regarding the fee and cost arrangements should be worked out with your attorney in advance, before any work is done on the case. You should review all of these details completely with the attorney and have the fee arrangements put into writing.

DESSEN, MOSES & ROSSITTO is happy to assist you in any legal matter that involves either Pennsylvania or New Jersey, the two states in which our attorneys routinely practice. If you wish to contact us for more information concerning this field of law or any other in which we practice, please send us an E-mail message and we will be happy to try to assist you.

LINKS TO OTHER INTERESTING INFO

Learning Disabilities Association
National Institute on Life Planning for Persons with Disabilities
The Special Education Resources on the Internet
United Cerebral Palsy Association

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INFORMATION ABOUT NEWBORN MALPRACTICE