Archive for the ‘Birth Injury’ Category

Issues in Medical Malpractices: The Birth Injury Attorney

By admin

Tuesday, August 20th, 2013

I recently settled a case involving a brain damaged baby with cerebral palsy for $ 3 million dollars. We were able to position it for the right settlement approximately a year or so in advance of any likely trial date, through the hard work of a talented and passionate staff.

The settlement brought out issues that face a malpractice attorney, other than the obvious ones surrounding the fetal monitor strips, meconium staining and genetic or pre-natal abnormalities. The obvious hurdle was to establish that the sad result was caused by delayed medical response to signs of a non progressing labor and fetal distress. We had prepared proofs that this had to be anticipated and avoided by attention, communication and a timely c-section delivery that the situation demanded.

By definition, the only “script” was the chart written by those who malpracticed, and at some point knew their reaction was too slow and medically wrong.  The barrier to a successful outcome was what it always is: the defense bar and insurance carriers have almost limitless access to the witnesses as well as the resources and connection to a cast of “experts” that the injured family frequently can’t match. No matter what is in the record, experience tells us what the defenses will be and what the doctors retained by the defense will be hurling at us.

You cannot properly represent someone with such a life changing injury, without the experience, staffing and resources to understand, develop, and present the reality of what happened, as opposed to the pasteurized version.

There are many ways to tell the story. Knowing how to project it can be as varied and as creative as there are personalities and lawyers. A carrier, defense attorney, or potential juror can say they understand the severity of what the child and family face. They don’t, and it is our job to break through that resistance to something they have never lived, and make palpable the real horror suffered by real people and a real life; one that was unimaginably destroyed by inattention and sometimes, arrogance.

Projecting the reality and magnitude of what was lost, can be all the difference between a settlement, jury trial and the amount of recovery.

It can be the difference between an early settlement versus the ever present risk of a long, drawn out and painful litigation process. That process, by definition, invites the changed circumstances that time can bring to the condition or even survival of the injured child, as well as the obvious twists and turns human testimony can create.

The art is in anticipating the defenses and preparing for the problems so that the defense recognizes the hurdles can be cleared and the risk of trial is not something they want.

Aside from knowing the medicine and questions that must be answered, a focus also has to be on understanding what the child and family need to deal with what the malpractice has thrust upon them. Not for days or weeks, but long term. What can never be forgotten is that this is not the attorney’s case. It is the child’s and his family’s, whose needs and risks must be weighed against the strength and weakness of the facts and medicine.

In this case, no amount of money could make whole what had been taken.  Delay for this 8 year old and his family, was not in their best interests, as they realized money had a purpose and waiting for a trial off in the future was not something that was to the betterment of their child’s remaining life or their ability to care for him for however long that is to be. A big verdict or even a delayed, larger settlement, might have made the attorney feel good, but it had to be weighed against the benefit to the child and family of having resolution and funds to do now what was needed, while at the same time, protecting the future.

Spastic quadriplegia; cerebral palsy; brain damage; cortical blindness; pulmonary problems. These are not just words. They are real, life altering problems for the little boy and for his family. More was required of me than courtroom experience or even performance. More than knowledge of law and medicine. A judge I greatly respected had reminded me a long time ago that I was not just a legal warrior. I was to counsel, recognizing all sides of a law suit and clearly defining for the client what was before them, as we started through our legal system.

Not only did we consult with medical experts to develop a clear picture of the hurdles to proof of fault and its connection to the child’s problems. We also consulted with experts as to the care this child needed and the expense that would cause.

After all of that, we reached out for an expert on how to maximize the use of whatever funds we obtained, so that we knew what was needed, not just wanted. We had to recognize the impact on the family and the need to protect the child’s access to proper care over projected time periods.

Attorneys are trained to litigate. They are not money managers and they are not doctors. They are people who must look at and appreciate all aspects of their client’s needs and the most effective way to highlight their reality and what needs to be done to guide them through it.

Videos and exhibits to make the events and their impact, real, take experience and creativity. Pain must be more than a word. Suffering must be made more than a concept. Their reality requires thought, empathy, and imagination, that go beyond simple knowledge of the law.

More than familiarity with law books is needed. It requires a sense of how to communicate and persuade, so that the other side, whether it be the attorney, the carrier or the jury, is convinced of the right way to resolve such monumental suffering that no one, given the responsibility to evaluate and decide the meaning and impact of what happened, has ever experienced.

Birth Injury Statute of Limitations

By admin

Tuesday, September 20th, 2011

[Reviewed by Andrew M. Rockman, Esquire,
 Senior Partner, Medical Malpractice Department]

Although the New Jersey Statute of Limitations for a medical malpractice action is two (2) years from the date the patient / plaintiff knew or should have known he or she was victimized by malpractice, prior to 2004, an infant victimized by medical malpractice at birth was given a much more liberal timeframe.  He or she could file a lawsuit at any time up to the date of  their twentieth (20th) birthday.

However, parents and/or guardians of minor children should be aware that as of June 2004 (effective July 2004), the Statute of Limitations was decreased for a minor or infant suffering an injury at birth, now requiring that a lawsuit be filed PRIOR to the child’s thirteenth (13th) birthday.  It must be strongly emphasized that this CHANGE APPLIES ONLY to an injury suffered at birth or that occurs during the birthing process, as the result of the negligent act of a healthcare provider.

A minor that suffers an injury resulting from medical negligence, either during the course of infancy, childhood or adolescence, remains able to claim the benefit of the extended Statute of Limitations, lasting until their twentieth (20th) birthday.  For specific reference, see N.J.S.A. 2A:14-2.

The above is provided for informational purposes only.  If you believe your child may have any type of potential medical malpractice claim, you must and should always consult directly with an attorney as soon as possible to determine what timeframe limitation may be applicable to your child’s specific circumstances. There are other time restrictions that might apply, depending upon who committed the malpractice and where.  Again, you should consult with an attorney so that you know your rights and the obligations you have, to protect whatever claim you or your child might have.

If you believe you or your child may have been victimized by medical malpractice, please contact our office at (800) 432-LAWS.

Learn how to recognize misdiagnosis of jaundice for your newborn

By admin

Thursday, July 14th, 2011

In a fairly recent case, a family received a substantial recovery for their brain damaged child. The recovery was based upon the failure of the doctors to properly diagnose a condition known as “jaundice/hyperbilirubinemia” and to initiate proper treatment. Aside from the very real tragedy their error caused, the case points out the error doctors sometimes make when they underevaluate the significance of jaundice in a newborn as a benign, transient or temporary condition, needing no testing or treatment.

The reality is that this misdiagnosis and reaction can allow “icterus” or yellowing of the skin and the whites of the eyes to go underappreciated, allowing it to move on to “kernicterus” and brain damage. The high levels of bilirubin in the baby’s blood and tissues and the resulting yellow skin, are not always a temporary condition that simply resolves. The error is in not recognizing and dealing with the potential severity of this often common occurrence. In this particular case, the baby’s skin color and feeding problems did not result in the necessary appreciation for the need for prompt billirubin testing and, sometimes, an exchange transfusion.

The tragedy is that the “kernicterus” is easily prevented. When the baby demonstrates jaundice, or yellowing of the skin, the doctor must know the baby needs treatment to avoid the seriousness of what happens when it is not. The billirubin, a yellow chemical produced in the blood travels to the liver where a chemical reaction is supposed to take place to remove it.

Sometimes the liver can’t remove enough billirubin and the amount increases, traveling throughout the body. If not treated, it can cause damage to the baby’s brain if it is allowed to stay in the body for too long.

An informed parent can be an important factor in helping to protect a baby.

Mistakes by Medical Professionals During Labor and the Birthing Process Causing Catastrophic Injury to the Baby

By admin

Friday, May 27th, 2011

There are few events in life that can approach the wrenching hurt of watching a baby or child try to live in the world with brain damage or severe physical injury or disability. Fortunately we live in a time where knowledge and equipment exists that help medical professionals to anticipate, predict and plan for the potential of an abnormal birth. When a doctor pays close attention and remains plugged in to the labor and birthing process, available and prepared to act and react, tragedy can often be avoided.

In terms of medical malpractice litigation, the defense of a doctor most often revolves around determining whether the apparent abnormality has a benign or easy explanation. When it does not, the defense often argues that there was a sudden emergency that could not be anticipated or planned for. The medical malpractice attorney representing the family of the injured baby must know (a) the questions that need asking; (b) the answers that demonstrate that the failure to respond was excusable under the law and (c) how to separate the excusable failure to respond from defense manipulations of what was happening that seek to excuse wrongful inaction and the resulting tragic injury.

The investigation by the medical malpractice attorney for the family must look to prove that the unanticipated and unprepared for emergency should have been both anticipated and prepared for, and should not have been allowed to degenerate into a predictable crisis. Some of the relevant investigation questions are: Do fetal monitor tracings that appear temporarily abnormal have a ready and reoccurring explanation? Do they return to normal in time so that there is a firm reason to accept they were the result of temporary positioning of the fetus? Is there something in the mother’s history or in the labor itself, that raised the risk of fetal compromise or danger that required anticipation and preparation by the doctor?

If labor is not progressing, is there an increasing risk of compromise of the cord that nourishes the fetus until birth and the baby’s ability to live separately from the mother? Has there been meconium staining, sometimes a sign of fetal distress and an indication that an earlier birth is necessary?

Was there some practical reason that would interfere with the need for a quick or emergent delivery? Did the doctor and hospital arrange to be ready for that potential, so that precious time was not wasted if a quick or emergency delivery in fact became necessary?

Did the delivery professionals properly anticipate and plan for the potential of a problem birth for the patient who had a problem labor?

The above are only a few questions that arise in brain damaged baby situations or with babies born with cerebral palsy. Investigation frequently boils down to figuring out what the delivery staff should have known and when could they and should they have known, appreciated and reacted, to avoid or minimize that developing risk to the baby.

The medical malpractice attorney for the family must ascertain whether the excuses of the doctor, after the fact, are simply the product of after the injury research found in a textbook or a witness hired to provide excuses.

The medical malpractice attorney for the family must determine whether or not the birthing professionals actually looked for and connected the dots prior to and at the time of the birth or did they, rather, bend over backwards after the injury to the baby to come up with benign, excusing explanations, because they failed to appreciate the pattern or collection of events that evidenced the baby’s increased need for protective action and caution. Further, it must be ascertained whether the doctor made primary the avoidance of unnecessary risk to the baby, that a more prompt delivery, recognizing the risk potential, would have provided.

The battle in this kind of a medical malpractice case is one between what the doctor knew or should have appreciated versus the many excuses and experts who are available to give excessive weight to the existence of after the fact possible excuses and explanations for delayed reaction, rather than timely anticipation and action.

Medical Malpractice Related to Birth Injury or Birth Defects

By admin

Tuesday, May 17th, 2011

Becoming a parent of a newborn child is one of the most rewarding experiences you can have. However, that joy can turn to immeasurable pain if you learn your child is born with a birth defect that will change his or her ability to participate fully in what life can offer. The question facing the parent involves how to deal with and minimize the impact of what happened and how to help finance what needs to be done to protect the child, the mother or the family.

If that disability or injury has resulted from improper or unacceptable medical conduct or practices, the family may ask whether those that caused the problem, unnecessarily, by failing to practice or perform within known standards of medical care, should be required to lessen the economic impact of what happened. 

Simply because some birth defects or injuries could be the result of the conduct of a doctor or other healthcare professional during pregnancy or during or after birth, does not mean there was provable malpractice. If the mother or baby are harmed due to the negligence of another, it must be proven by a Medical Malpractice Attorney who knows what is needed to discover and present that proof. Under the law you may be entitled to monetary compensation, but only if that malpractice or medical negligence can be proven.

The majority of pregnancies and child births occur without incident. However, when they go wrong, the results can be catastrophic. There are various reasons for births to be difficult or create problems, either from events during pregnancy or at the birth itself. The questions often surround whether the doctor or medical staff properly anticipated or reacted to either early warnings or the late development of problems with pregnancy or labor. The review of that care will center around whether the medical providers reacted or acted within the known standards of care required of them, given the circumstances and the knowledge they were required to have.

That decision must be made from a full review of the records, circumstances and evidence, by a qualified physician, expert in pregnancy and births or in newborn or pediatric medicine. Cerebral Palsy and Erb’s palsy or an injury to the baby’s brachial plexus, among many other injuries, may raise questions as to how the steps up to birth and the birth itself were conducted, but they do not prove malpractice simply by their occurrence. A detailed review must be performed to find out if what happened could and should have been anticipated and/or avoided. The medical malpractice attorney needs to know what questions to ask and where to ask them.

If any of the unfortunate occurrences above have occurred to you or someone you love, please take the opportunity to contact us to see if we can help.   Our medical malpractice attorneys have the resources, experience and pride necessary to find the questions and answers and to represent you from and through the beginning to the end. Our mission is to give you the best chance for success, whether through a settlement or a jury verdict. We know and have experienced the complexity presented by malpractice cases and what is needed to get to the proper outcome.

Please do not hesitate to give us a call at 1-800-432-LAWS.