The birth of a child is a joyous time for most parents because they have brought a new life into the world. For parents of a child who has suffered a birth injury, however, the birth of a child is a time of sorrow, or at least a time of great distress. The same is true for parents of a child who has suffered a birth defect. A birth injury, unlike a birth defect, is a consequence of medical malpractice. Because of this, you might be entitled to file a legal claim seeking compensation.
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The Legal Elements of an Ohio Birth Injury Claim
Ohio recognizes four legal elements of a medical malpractice claim:
- A doctor/patient relationship existed (this is rarely a source of controversy);
- The health care provider´s treatment fell below the applicable professional standard of care (negligence);
- There was a causal link between your healthcare provider’s negligence and your injury; and
- You suffered damages as a result of your injury.
Ordinarily, you will need at least one expert medical witness to prove your claim, especially regarding your claim that your healthcare provider´s treatment fell below the applicable professional standard of care.
The Ohio Birth Injury Statute of Limitations
The Ohio statute of limitations tells you how long you have to file a lawsuit over your claim. This deadline looms large over private settlement negotiations as well, since your bargaining power will drop to zero once you miss the statute of limitations deadline.
Since a birth injury is generally a medical malpractice injury, the Ohio medical malpractice statute of limitations usually applies. The applicability of a medical malpractice statute of limitations is not good news, however, since in Ohio you only have one year from the date of the injury to file a lawsuit. Several exceptions apply, including exceptions that apply specifically to birth injuries:
- If you file a written notice of intent to take action within a year of the initial birth injury, you can extend your deadline by 180 days.
- The discovery rule allows you to extend the statute of limitations for as long as four years after the date of injury, if there was a delay in discovering the existence of the injury or in attributing the injury to medical malpractice. Any delay must be reasonable.
- The injured child has until their 19th birthday to file a birth injury lawsuit in their own name. This represents a one-year window, since an injured child cannot file a lawsuit in their own name until they turn 18. 19 years is normally too long to wait to have a realistic chance of winning a birth injury lawsuit, however.
- If the child dies as a result of a birth injury, you have until two years after the child’s date of death to file a wrongful death lawsuit.
- If the negligent party is an individual, and if that individual leaves the state or attempts to conceal themselves, the period of absence or concealment will not count against the statute of limitations period.
A completely different statute of limitations applies if your child’s injury was caused by defective medical equipment. In this case, the Ohio product liability statute of limitations will apply (see below).
Proving Negligence (Medical Malpractice)
To prove negligence you must answer two questions:
- Exactly what was the professional standard of care, under the circumstances and at the time that the birth injury occurred? You normally establish this standard using the testimony of an expert medical witness. “A reasonably competent obstetrician would have ordered a C-section at this point” might qualify as a standard of care, for example. Remember, the other side may call expert witnesses too, reducing a trial to a “battle of the witnesses.”
- Did your health care provider´s treatment fall below the foregoing standard of care? Your doctor must act as a “reasonably competent healthcare professional.”
Proving negligence is not enough on its own to win your claim, however.
Examples of Birth-Related Medical Malpractice
Following are some common examples of birth-related medical malpractice:
- Failure to properly screen the mother for dangerous conditions such as preeclampsia during pregnancy:
- Misusing various birthing tools (using forceps with too much force, for example);
- Failure to control maternal bleeding during delivery;
- Failure to consistency monitor the baby’s heartbeat;
- Failure to detect or respond to fetal distress;
- Failure to perform an emergency C-section when necessary; and
- Other errors.
Courts have held healthcare providers liable for hundreds of distinct medical errors during the birthing process.
Medical negligence “in the air”, so to speak, is not enough to win a medical malpractice claim. Your healthcare provider´s negligence must have actually caused the harm that you are complaining about. Failure to monitor the baby’s oxygen supply, for example, will not cause a doctor to bear liability if low oxygen was not the cause of the birth injury that the baby suffered.
Special Case No. 1: Product Liability Lawsuits
A product liability claim might arise in a birth injury situation if, for example, your baby’s injury was caused by a defective fetal heart rate monitor rather than by any fault of your healthcare provider. Alternatively, your doctor and a product manufacturer may share liability.
An expert tip from Doug Mann
The product defect must have been a manufacturing defect, a design defect, or a failure to provide adequate product warnings (“This drug should not be taken by pregnant women”, for example). The product must be both defective and unreasonably dangerous. Depending on the circumstances, you might not even need to prove fault on the part of the manufacturer to win.
Special Case No. 2: Wrongful Death
A wrongful death claim might arise if either the baby or the mother dies as a result of a birth injury. In Ohio, the personal representative (“executor”) of the deceased victim’s probate estate files the wrongful death lawsuit. Even a deceased infant has a probate estate, and the court will appoint a personal representative for it (typically a parent). Damages can include:
- Funeral and burial expenses;
- Outstanding medical bills;
- Mental anguish suffered by survivors;
- Loss of financial support support (if the mother dies);
- Loss of the services such as housework and child care (if the mother dies);
- Loss of the care, companionship, advice, guidance, etc. (if the mother dies); and
- Loss of prospective inheritance by a deceased mother´s spouse or children (if the mother dies).
Other elements of compensation are possible as well.
Contact an Experienced Ohio Birth Injury Attorney
Birth injuries are some of the most traumatic experiences someone can deal with. It’s important that justice is brought for your child, but it’s just as important that you spend your time caring for them rather than worrying over a case. Our experienced birth injury attorneys will handle the legal side of things so that you can focus on what matters most: being there for your family. Contact us today to set up a free consultation.