The birth of a new member into your family should be a joyous occasion, and one that is filled with hope and celebration. However, nothing is scarier than learning that your new baby is sick or injured. This comes with stress, worry, and despair for your family. There are two kinds of medical issues that newborns may suffer from that can be caused by a doctor, medical staff, or third-party healthcare personnel: a birth injury or a birth defect.
Parents and family members of children who are victims of these preventable injuries at birth due to negligence of the medical staff during pregnancy, labour, or delivery have the right to pursue legal action.
To understand what your legal options are when it comes to these conditions, you need to recognize the differences between birth injuries and birth defects.
What are birth injuries and birth defects?
In Canada, there are around 1 in 25 babies born every year with a birth defect, and around 2 out of every 1000 babies that are born may suffer from a birth injury. The nature and cause of the baby’s injury or disability will help determine whether a family has an obstetric malpractice claim.
Birth defects are injuries or health conditions that occur when a baby is still in the womb. About 3% to 4% of babies are born with birth defects, and embryos and fetuses are particularly vulnerable to harmful environmental factors at certain stages of development.
During the first 13 to 60 days, the baby’s major structures are developing, including the organs, and this time period is when the embryo is the most sensitive. During weeks 5 to 7, the central nervous system is being developed, and a birth defect during this stage is the most serious type. During the fetal stages, the baby will be less vulnerable, but they can still be affected by contaminants that cross through the placental-blood barrier.
Birth defects range in causation as well as severity. They can range from mild to moderate, while others are more serious. Severe birth defects might mean that the baby only has a few weeks or months to live.
Many birth defects are caused by a mix of environmental and genetic circumstances. About 70% of birth defects do not have a known cause, and the other 30% are due to chromosome abnormalities, single gene defects, multifactorial inheritance, and teratogens.
If the birth defect was caused by a genetic factor, there will be no legal grounds to file a claim against another party. On the other hand, if it can be proven that a birth defect was caused by a physician or another person, then you could be entitled to legal compensation.
Examples of common types of birth defects include:
- Hemoglobin disorders;
- Neural tube disorders;
- Down syndrome;
- Sickle cell disease;
- Thalassemia; and
- Upper and lower limb reduction defects.
What causes an increased risk of a birth defect?
Many factors contribute to the risk of a birth defect. Some environmental factors are out of our control and other factors are not. In a claim, if any of these factors are relevant, they could reduce the chances of legal compensation. They include:
- Drinking any amount of alcohol;
- Abusing recreational drugs like heroin or methamphetamine;
- Using certain types of prescription medication;
- Being obese or diabetic before or during pregnancy;
- Having birth defects that run in the family; and
- Conceiving at an older age (over 34 years old).
When can physicians or hospitals be held accountable for causing birth defects?
Unfortunately, many birth defects are preventable. Approximately 70% of major heart defects go undetected by physicians, 75% of babies missing limbs also go unnoticed, and over half of Down syndrome cases will also go unnoticed.
With the correct screening processes and medical care, physicians should be able to identify a problem and take action early through preventative measures for the best possible outcome in the future.
Screening can give healthcare workers notice of a birth defect that could cause potential issues during birth and which might need to be treated immediately to avoid injury. Preventative measures that should take place include ensuring mothers take enough folic acid, early detection, and surgery. Examples of preventative treatment include:
- Aborting a pregnancy once Down syndrome is detected;
- Surgery to fix specific types of spina bifida; and
- Avoidance of shock or oxygen starvation caused by a heart problem unknown to doctors during birth.
Medical workers are held to a strict standard of care when giving their patients treatment. If that standard of care is broken, then a physician can be held liable for the damages they caused, including the pain and suffering, emotional distress, medical costs, and more
Like birth defects, birth injuries can also range in severity and cause. These injuries can include fractured bones, dislocation, brain damage, spinal cord damage, lacerations, contusions, and oxygen deprivation. Broken bones can be fixed, but strangulation due to the umbilical cord can result in brain damage or death.
Some birth injuries cannot be prevented, while others can and a doctor should be held accountable. Even during difficult or complex deliveries, it is the doctor’s responsibility to identify possible complications or be able to adapt to the situation when needed. Any doctors or hospital staff who act carelessly or recklessly can lead to a birth injury. When the standard of care has not been upheld, that party should be held liable for damages.
Differences Between Birth Defects and Injuries
The terms “birth defect” and “birth injury” are used interchangeably, and their meanings look quite similar; however, there are critical differences between them. A birth defect occurs before the baby is born, during its development in the womb. On the other hand, a birth injury happens during the delivery of the baby or immediately after.
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