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Birth Injury

Who Should Be Held Responsible After a Birth Injury?

June 24, 2022

Understanding who can and should be held responsible after a birth injury helps ensure victims recover full compensation for their losses. Liability for birth injuries in Chicago is not limited to doctors, nurses, and hospitals. Midwives, anesthesiologists, birthing centers, and even medical device manufacturers may also be held liable. If numerous medical professionals were negligent, you may be able to hold multiple parties after a birth injury. 

Birth injuries are among the most tragic injuries a person can suffer. Due to their long-term and debilitating effects, birth injuries may rob a child of the ability to experience a normal life. Birth injury victims frequently need substantial compensation to help them pay for lifelong medical treatment and caretaking expenses. Due to the high financial exposure potential defendants face in birth injury lawsuits, insurance companies hire aggressive defense attorneys. These attorneys go to great lengths to defend against these lawsuits. Skilled representation is essential to increase your chance of recovering compensation.

What Is a Birth Injury Lawsuit?

A birth injury lawsuit is a type of medical malpractice legal claim brought against a healthcare provider and/or medical facility. Medical malpractice occurs when a medical provider commits an act of negligence that breaches the applicable standard of care and causes or contributes to causing a victim to suffer an injury. 

People often ask, “when is a birth injury medical malpractice?” Common examples of medical malpractice that cause birth injuries include:

  • Failing to recognize and properly respond to signs of fetal stress
  • Failing to perform or delaying the performance of cesarean section procedure
  • Improper birthing procedures
  • Improper use of medications
  • Failing to properly use vacuum extractors or forceps

While most birth injuries are caused by errors committed during labor and delivery, birth injuries can also occur after the child is born. For example, a medical provider may fail to diagnose or properly treat a post-delivery infection affecting the child or mother. Medical providers or hospitals may fail to perform proper post-birth tests on a child, resulting in newborn screening errors. Children who are the victims of medical malpractice can suffer injuries resulting in permanent physical, cognitive, and/or developmental disabilities. Mothers that are victims of medical malpractice can also suffer severe physical and mental injuries.

Medical Negligence

To bring a successful medical malpractice claim, you must prove the medical provider administered care that fell below the standard of care applicable to the medical provider. Illinois law provides that medical providers – like all professionals – must act with the same level of knowledge, skill, and ability as other medical providers would that are reasonably careful in a similar situation. This includes following widely accepted practices in providing medical services to patients. 

A birth injury lawsuit requires testimony by an expert medical witness who practices the same type of specialty as the at-fault healthcare provider. An expert witness must provide testimony defining the applicable standard of care and how it was breached. For example, if the at-fault doctor is an obstetrician, you need an obstetrician to testify regarding the standard of care for obstetricians and how the at fault doctor’s care failed to conform with the standard. 

Illinois law also requires that plaintiffs support their medical malpractice claim with a Certificate of Merit from a medical professional. The healthcare professional must state, under oath in an affidavit, that he or she has knowledge of the medical issues in your case and practices the same field of medicine as the at-fault doctor. The healthcare provider must review the medical evidence in your case and explain his or her medical opinion about what occurred. 

Vicarious Liability

Medical malpractice lawsuits are not always filed against an individual doctor or specialist. A lawsuit in Illinois can also be brought against a hospital under the theory of vicarious liability and/or respondeat superior. Under these legal theories, a hospital may be liable for the actions of its employees, agents, and/or apparent agents if an employee, agent, and/or apparent agent commits an act of negligence while in the scope of his or her employment or agency.

For the doctrine of respondeat superior to apply, the negligent medical provider must be an employee of the hospital. The negligent doctor can’t be an independent contractor. The difference between an independent contractor and an employee is the level of control the employer has over the medical professional. Generally, employers have more control over and legal liability for the actions of full-time employees. Despite this limitation, there are other ways a hospital can be held liable. 

Hospital Negligence

A hospital can be sued directly for certain acts of negligence. For example, if the hospital’s nurses and physician assistants are employees (rather than independent contractors), the hospital must ensure that they meet the necessary qualifications. Specifically, a hospital must ensure the medical providers have proper licenses, training, and education. A hospital can be liable if it fails to verify an employee’s background and credentials. In addition to verifying the background of employees, a hospital must also hire a sufficient number of medical providers. 

But what if the negligent nurse or doctor is an independent contractor? Fortunately, you may be able to sue the hospital after a birth injury for negligently selecting an incompetent contractor. For example, a hospital could be liable if it granted privileges to an incompetent doctor. At the same time, you can sue the nurse or doctor directly for his or her negligent acts.

A hospital could also be negligent if it has inadequate or outdated medical policies. For example, a hospital has legal exposure if it fails to perform proper medical tests or fails to maintain proper medical records. Additional errors include employing improper policies and failing to admit patients who require medical care. A hospital may also face liability if it fails to train, supervise, or terminate incompetent employees. Determining potential negligence by a hospital requires a detailed investigation by a birth injury lawyer

Financial Compensation Available After a Birth Injury

Illinois law allows birth injury victims to claim economic and non-economic damages. Economic damages serve to compensate a victim for his or her financial losses. Economic damages include the victim’s past and projected future medical, therapy and caretaking bills, as well as past and projected cost of future medical devices and medications. Non-economic damages operate to compensate a victim for losses that do not have a specific financial value. Non-economic damages include compensation for the child’s pain and suffering, loss of a normal life, disability or loss of a normal life, and disfigurement. A child’s mother can also obtain financial compensation if she suffered an injury due to the medical provider’s negligence. 

About The Author

Photo of Jeffrey M. Goldberg
Attorney Jeffrey M. Goldberg, founder of Goldberg & Schulkin Law Offices, has spent his entire professional career handling cases involving birth injury, medical malpractice, product liability, aviation and related accidents.