Brain Injuries from Birth: Do You Have a Medical Malpractice Claim?

Especially in infant children, early onset or in utero brain injuries can be hard to diagnose, and even if they are diagnosed, it can be nearly impossible to tell how the injury will manifest in the life of a child. Typically, brain injuries present from birth occur as the result of lack of oxygen during the birthing process, which is generally preventable. Accordingly, if your child has suffered from a traumatic brain injury since birth, you should consider the possibility that her injury was the result of medical malpractice. Whether it was malpractice during the birthing process or failure to diagnose an infection during development, traumatic brain injuries seldom occur in otherwise healthy children without external contributing factors.

Brain Injuries Defined

There are two different categories of brain injuries: traumatic brain injuries and acquired brain injuries. A traumatic brain injury is defined as an alteration in brain function as the result of an external force, i.e., a car accident. An acquired brain injury, however, is actually defined as a brain injury that is not hereditary or induced by birth trauma, i.e., a tumor or injury caused by a stroke. According, if your child suffered a brain injury during the birthing process, it is generally considered a traumatic brain injury. The following are examples of traumatic brain injuries:

• Diffuse axonal injury (the injury seen in shaken baby syndrome)
• Concussion/contusion
• Coup contrecoup injury
• Penetrating injury
• Locked–in syndrome.
• Of those traumatic brain injuries, the following are types commonly seen from birth:
• Caput succedaneum
• Cephalohematoma
• Normal head deformity due to birth forces
• Hemorrhages throughout different areas of the brain

Typically, traumatic brain injuries that occur during the birthing process are caused by decreased oxygen or decreased blood flow to the baby’s brain.

Developmental and Unpreventable Brain Injuries

Unfortunately, there are some brain injuries that occur in utero that are generally not caused by medical malpractice. While failure to diagnose an in-utero infection or jaundice can result in brain injury and is, in turn, claimable as malpractice, injuries such as cerebral palsy are not always preventable as they are sometimes caused by natural brain malformation. Further, maternal negligence can also cause pre-birth traumatic brain injuries that are not the fault of a physician. For example, fetal alcohol syndrome, caused by excessive consumption of alcohol by the mother during pregnancy, leads to developmental issues in the brain that are generally not reversible.

• Change in eating or nursing habits
• Inability to be consoled
• Inability to pay attention
• Depression
• Loss of interest in favorite activities
• Drastic changes in sleeping habits

When a child develops an inability to concentrate during his vital educational years, parents and medical professionals may assume that the child is suffering from attention deficit disorder. However, before accepting such a diagnosis, it is important to ask yourself if a traumatic event before or during birth may have resulted in a brain injury.

Medical Malpractice in Florida

Even if a doctor tells you that a brain injury from birth was not preventable, always get a second opinion. It is not normal for a child to be deprived of oxygen during the birthing process, and injuries that develop as a result of an infection or undiagnosed, treatable condition can also be considered medical malpractice. Pursuant to Florida law, in order to recover compensation due to medical malpractice, such as birth injuries, you must show that the injury would not have occurred but for the medical error. In determining this, Florida courts look to whether the infant’s brain injury would have been a reasonably foreseeable result if another competent doctor had used medically acceptable standards of care.

In order to prove that your child’s brain injury was caused by medical malpractice, it is usually necessary to hire expert medical witnesses in the field to testify on your behalf. If the injury is serious enough that lifetime medical and educational assistance will also be necessary, it is also important to hire an economic expert witness who can testify as to what your child will need to live the fullest possible life. Under Florida law, “if scientific, technical, or other specialized knowledge will assist the trier of fact [jury or judge] in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion.”

For example, the expert could testify that, due to your child’s inability to hold a steady job as the result of traumatically induced attention issues, you should be compensated approximate $50,000 each year over the next 20 years (i.e., his work life). This would result in the expert testifying that your child’s future economic loss is approximately $1,000,000 dollars. Further, economic experts can work with your medical experts to calculate the reasonable cost of your additional medical bills as a direct result of the malpractice.

Contact a Tampa Bay Medical Malpractice and Birth Defect Lawyer Immediately

Whether you recently delivered a child and were told she is suffering from a brain injury, are pregnant and realize your physician gave you medication that may cause a birth defect, or have an older child and believe he may be suffering from birth-related cognitive dysfunction, it is essential to contact a Florida medical malpractice attorney who understands infant traumatic brain injuries. It is even more important to ensure you call an attorney who has the experts you need to determine the financial impact of your child’s injury and what she will need to live a full, healthy life. The Dolman Law Group can help fight for your rights as a parent. They are your premier personal injury and birth defect lawyers in the greater Tampa Bay area. Call them today at (727) 451-6900 for a free, no-risk consultation.

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