Basics
Anyone considering a legal action because of a birth trauma may want to have an understanding of some basic medical and legal concepts which are set out below.
MEDICAL TERMS:
Fetal Heart Monitor: The monitor which records the baby's heart rate and typically measures the mother's contractions as well.
Baseline heart rate: The basic rate at which the babies heart is beating when no abnormalities are occurring. Although each baby is different, this baseline will typically fall somewhere between 110 and 150 beats per minute.
Deceleration: A drop in the babies heart rate below baseline/normal.
Acceleration: An increase in the baby's heart rate (typically greater than 15 beats per minute and lasting for more than 15 seconds).
Bradycardia: A drop in the baby's heart rate that stays down below 110 beats per minute for a prolonged period.
Tachycardia: A heart rate above 150 beats per minute.
Variability: The moment to moment variations in the baby's heart rate. There are two types, long term variability and short term variability.
Beat-to-beat variability: The variation in the baby's heart rate with each beat or few beats. This is a subset of short term variability.
Apgar score: A scale from 0 to 10 that rates how well the baby appears to be doing immediately after birth. Typically the score is taken at one minute and five minutes, occasionally it will be taken again at 10 minutes. A low score is sometimes associated with a long-term neurological deficit.
Cord blood gas and pH: A sample of blood taken from the umbilical cord at birth that indirectly measures the amount of oxygen and acid (acute oxygen starvation), among other things.
Chorioamnionitis: Usually a type of infection that develops in the tissue surrounding the baby.
Placental insufficiency: A condition where a decrease in blood supply to the baby occurs because the placenta, the interface between mom and baby, is not functioning adequately.
Hypoxia: A reduction in oxygen concentration in the baby's tissues/cells.
Ischemia: A reduction in blood flow. This is often in association with hypoxia.
Cord compression: A compression of the umbilical cord that decreases or stops flow of blood to the baby. The amount of compression varies greatly. This may be minor, transient and normal just before birth. It may be severe or prolonged and cause brain damage. A cord compression will often cause characteristic decelerations to appear.
Abruption: A separation of the placenta from the uterus that will typically cause brain damage or death if not treated immediately.
Hypoxic Ischemic Encephalopathy (HIE): A lack of oxygen that was either 1) so sudden and severe, 2) less severe but so prolonged, or 3) a combination of 1 and 2, that a permanent brain injury has occurred. There are varying degrees of HIE.
LEGAL TERMS:
Negligence: A health care provider can be found negligent if it can be proven that he or she provided improper care. Each state defines this differently. Some states define improper care as failing to do what a "reasonable physician" would do, or failing to use “that degree of skill and learning ordinarily used under the same or similar circumstances by members of his profession.” Most all state and federal judicial systems do not require that patients receive the highest quality of care, rather that the standard of care be ordinary or normal. Sometimes, another medical approach may have had better results, but it is not necessarily malpractice as long as the doctor has done what would have ordinarily been called for in a particular situation. The definition of negligence generally provided to the jury in a birth trauma case varies by state but generally is failing to do what a reasonable physician (or nurse) would do in the same or similar circumstances.
Time Limits: Time limits are often called “Statutes of Limitations.” This means that you only have a certain amount of time to file a claim. However, statutes of limitations are highly technical. Each state sets out their own statutes of limitations under the types of claims. The general medical malpractice statute of limitations in most states is relatively short, one to two years. In some states it is shorter, and in some cases it is longer. However, when minor children are involved the time limit is often extended several years. But this varies extensively with each state. To make it even more complicated, each state typically has exceptions to the general rules which further alter the time limit. Additionally, medical malpractice/insurance protection laws are in a high rate of change throughout the United States, including time limits for filing birth trauma cases. For more information regarding your particular situation, please seek the advice of a qualified attorney as soon as possible.
Compensation and Recovery for Losses: There are typically five basic types of damages which you may potentially recover for a child in a birth trauma case. By far the greatest financial cost in many birth trauma cases is the future attendant or custodial care, that is the cost to have a nurse or other helper assist in caring for the child during the child's lifetime. Future attendant or custodial care is a type of future medical damage listed below. An example of a life care plan that addresses the future medical cost is found under the Life Care web page (click here to view). The general definitions are provided below.
Past Economic and Medical Damages mean damages incurred in the past for pecuniary (measurable dollars) harm such as medical expenses for necessary drugs, therapy, and for medical, surgical, nursing, X-ray, dental, custodial, and other health and rehabilitative services and for past lost earning and for past lost earning capacity.
Past Non-Economic Damages mean those damages arising in the past from non-pecuniary (intangible or immeasurable to a precise number) harm such as pain, mental anguish, inconveniences, physical impairment and disfigurement. Some states limit, or "cap" non-economic damages (click here for a state by state chart).
Future Economic and Medical Damages mean those damages arising in the future from measurable dollars harm such as lost earning, lost earning capacity and damages arising in the future for medical expenses such as necessary drugs, therapy, medical, surgical, nursing, X-ray, dental, custodial, and other health and rehabilitative services. By far the greatest financial cost to families in many birth trauma cases is the future attendant or custodial care, that is the cost to have a nurse or other helper assist in caring for the child during the child's lifetime.
Future Non-Economic Damages mean those damages arising in the future from non-pecuniary (intangible or immeasurable to a precise number) harm such as pain, mental anguish, inconvenience, physical impairment, disfigurement and loss of capacity to enjoy life. Again, some states limit, or "cap" non-economic damages (click here for a state by state chart).
Punitive Damages are awarded as a way to punish the wrongdoer. Typically, punitive damages are only awarded in rare cases when it can be shown that the wrongdoer had evil intent or, by his or her actions, showed a conscious disregard for the safety of others. Many states have also capped punitive damages.
What To Consider Doing If you Think You Have a Claim: Medical malpractice claims are one of the most difficult cases to litigate because the medical records are the major evidence in the case. The doctor, hospital, or clinic has control of these records, and although it is illegal to alter these records, there is often no way to know if they have been altered or not. Your medical records may not reflect events the way you remember them. For this reason it is very important for you to document as much as possible yourself. Be sure to keep notes, including dates, names and notes on conversations. You should also document any expenses incurred and keep receipts for everything. In the event you decide to pursue a case, the more information you can provide to your attorney, the better he/she will be able to represent you.