There is only one type of birth injury law, and it falls under the broad category of tort law. Tort law covers civil wrongs for which an individual takes legal action against someone else to obtain compensation for some type of injury suffered. A birth injury is any type of physical damage to the child or to the mother that occurs during pregnancy, labor or childbirth. Birth injury law covers legal actions against medical professionals for medical malpractice, which is a form of negligence. The terms "negligence" and "medical malpractice" are interchangeable in the context of birth injury law.
Birth injury law covers numerous types of birth injuries that may arise from medical malpractice. The child and the mother can both suffer harm from birth injuries. Examples of birth injuries to the child include fractures, paralysis, cerebral palsy, stroke, lacerations, brain damage and bruising. Birth injuries to the mother can include urinary tract infections, lacerations, damage to the rectum, blood clots and death, among others. Some birth injuries may be permanent, cause life-long suffering, and drain financial resources.
A birth injury lawyer is often a medical malpractice attorney specializing in birth injury law. This type of lawyer sues medical professionals and hospitals for medical malpractice. In birth injury law, medical malpractice includes errors made by medical professionals, misdiagnosis, failure to diagnose, and medical mismanagement of the birthing process. In a birth injury case, a lawyer would need to show that the injury occurred because a medical professional failed to exercise the same degree of judgment, care and skill that a prudent medical professional would exercise in similar circumstances. To do this, the plaintiff’s attorney would need to work closely with medical experts.
The attorney essentially would need a medical expert, such as a doctor, to testify that a defendant did not exercise the knowledge, care and skill ordinarily required of members of the profession in a similar circumstance. This requirement raises tremendous conflicts, because experts often disagree and many factors influence decision-making when rendering medical services. Nevertheless, a medical expert would review and analyze all of the medical reports and listen to the testimony of the defendants to formulate an expert medical opinion regarding a specific birth injury claim. The expert would then testify in court an offer his opinion. The birth injury lawyer would then have to convince the jury that the expert’s testimony should entitle his client to win the case.
Birth injury law seeks to compensate victims for pain and suffering, lost income and medical expenses resulting from the injury. Large damages awards are common when injuries are permanent. For example, some forms of cerebral palsy permanently damage a child’s motor skills and brain development. Consequently, a child may have hearing problems, vision problems, speaking problems, seizures, and life-long learning disabilities.