Birth Injury

Brachial Plexus Injuries in Maryland Birth Injury Cases

March 27, 2020 | Lebowitz & Mzhen

The brachial plexus is a network of nerves between a person’s neck and shoulders that control one’s chest, shoulders, arms, and hands. A brachial plexus injury occurs if the nerves are stretched, compressed, or torn. A brachial plexus injury can occur during a birth, and a brachial plexus birth injury occurs in about one to three of every one thousand births. An injury can cause a loss of muscle function and even paralysis of the upper arm. Brachial plexus injuries can be the basis for a negligence claim in some Maryland birth injury cases.

A state appellate court recently decided a case involving brachial plexus injury that occurred during the course of a delivery. In that case, the mother was being treated by an obstetrician for her pregnancy. The obstetrician advised inducing labor because the mother was diabetic, in order to minimize any possible issues. The mother went forward with the elective induction. During the delivery, the doctor found that the baby’s shoulder was lodged against the mother’s public bone, and that the umbilical cord was wrapped around the baby’s neck. The obstetrician performed maneuvers to dislodge the baby’s shoulder in order to deliver the child, and the baby suffered a permanent brachial plexus injury.

A claim of negligence was filed by the parents against the obstetrician. They argued that the obstetrician failed to exercise ordinary care while delivering the plaintiffs’ baby, thereby causing the baby’s brachial plexus injury. The jury found the obstetrician was negligent and awarded the family $2.7 million in damages. However, before and after the trial, the obstetrician argued that the parents had to prove the higher standard of willful and wanton negligence because the obstetrician was providing emergency medical care at the time. Under a state statute, in cases involving the provision of emergency medical care, a plaintiff is required to prove willful and wanton negligence.

Maryland Medical Malpractice Lawsuits Arising after Serious Birth Injuries

March 15, 2016 | Lebowitz & Mzhen

Any time a patient seeks medical care, they are doing so with the hope and expectation that what they are seeking to be provided with will be adequate. This is nowhere more so the case than when a family chooses the doctor who will help them through their pregnancy and ultimately deliver their child. However, doctors are humans and do still make mistakes. And sometimes these mistakes can have drastic consequences for both mother and child.

When a physician fails to provide adequate medical care to a pregnant patient, and the patient or her child suffers injury as a result, Maryland law allows for the patient to file a medical malpractice lawsuit against the doctor. In many cases, the hospital employing the doctor, as well as the doctor’s practice group, can also be named in the lawsuit, to prevent the doctor from shifting liability to a non-present party.

If successful, a plaintiff may receive compensation for the injuries they have sustained. Compensation packages vary according to the facts of each case, but generally they will include amounts for previously incurred medical expenses, the future costs of medical care for mother or child, lost wages and accounting for a decrease in earning capacity, as well as for the harder-to-determine category of pain and suffering.

Birth Injury Plaintiff’s Failure to Timely Serve Defendant Nearly Results in Dismissal

February 22, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s supreme court issued a written opinion in a birth injury case that had been dismissed by the lower court because the plaintiff failed to serve the defendant with notice of the lawsuit in a timely manner. In the case, Collins v. Westbrook, the plaintiff was a mother suing the defendant doctor for the wrongful death of her still-born daughter. The court ultimately held that, although the defendant was never served, the plaintiff showed “good cause” justifying the failure, and the case should not be dismissed on that basis.

The Facts of the Case

The defendant was the plaintiff’s treating physician during her pregnancy, which resulted in a still birth. The plaintiff then filed suit against the defendant doctor, alleging that his negligence was the cause of her child’s still birth. As is required by the rules of procedure, the plaintiff set out to serve the defendant with notice of the lawsuit. The applicable rule requires notice to be provided within 120 days.

The plaintiff’s attorney charged his assistant with serving the defendant. However, shortly before the 120 days had elapsed, her attorney realized that the assistant had not effectuated service due to “great personal problems.” The attorney then hired a professional process server to track down and serve the defendant.

Family Receives $9.6 Million after Eight-Day Birth Injury Case

November 23, 2015 | Lebowitz & Mzhen

Earlier this month, a California family was awarded $9.6 million after an eight-day trial culminating in the judge finding that the doctor was negligent in the delivery of their child. According to one local California news source, the young girl, who is not three years old, will never be able to walk, talk, or care for herself.

Evidently, back in 2012, the family’s doctor was called to the hospital to assist in the delivery of the child. The doctor, who was employed by a federally funded clinic at the time, failed to deliver the child in a timely manner, waiting too long to perform the necessary Cesarean section procedure.

The young girl was born with serious and permanent injuries, including blindness. She will also require the use of a feeding tube for her entire life and suffer from unexpected seizures. The bulk of the $9.6 million award was designated as compensation for the payment of a 24-hour live-in nurse, as well as for the continued medical care that the girl will need throughout the duration of her life.

Midwife Accepts Responsibility for Her Role in Infant’s Death and Pleads Guilty to Several Charges, Family of Child Not Satisfied with the Sentence

September 22, 2015 | Lebowitz & Mzhen

Earlier this month in North Carolina, a judge sentenced a woman to 6-17 months in jail for assisting in a delivery that resulted in the child’s death. According to one local news report, the woman was holding herself out to the public as a midwife, although she was not licensed under state law to practice midwifery in North Carolina.

Evidently, the woman did attend some schooling for midwifery, but that institution was not accredited. The family who retained her services was aware of this and decided to hire her nonetheless. However, at some point during the delivery, the child died.

The woman was initially charged with murder of an unborn child, assault, theft by false pretenses, and obstruction of justice. After some discussion between the woman’s attorney and the prosecutor, she was offered a deal of 6-17 months incarceration for pleading guilty to obstruction of justice and unauthorized practice of midwifery. The judge, hearing that the woman had already spent almost 300 days in jail at the time of sentencing, suspended her sentence.The family has expressed their disappointment in what they believed to be a lenient sentence.

New Study Looks at Treatment of Gestational Diabetes

July 8, 2015 | Lebowitz & Mzhen

Gestational diabetes is a form of diabetes that affects pregnant women and is a totally separate form of diabetes than the other two types, commonly referred to as Type I or Type II. It is estimated that around 18 percent of women will develop gestational diabetes at some point during their pregnancy, making it one of the more common pregnancy-related conditions experienced by expecting mothers.

In a nutshell, gestational diabetes is the name of the condition where a mother has too much sugar in her bloodstream. This is the result of the body’s failure to produce enough insulin. According to one recent news article, a new study looks at two common ways to treat gestational diabetes, insulin and glyburide.

As noted above, insulin is the hormone that is responsible for breaking down sugars and converting them into energy. A direct dose of insulin has long been one alternative to treating diabetes. However, more recently doctors have been prescribing glyburide to patients with gestational diabetes. The study takes a look at both medications and ultimately concludes that treatment by glyburide may result in a higher risk of required admission into the intensive care unit, a larger chance of the mother developing respiratory stress, and also a greater risk that the mother will be large for gestational age.

State Supreme Court Wrestles with Tricky Statute of Limitations Issue

June 1, 2015 | Lebowitz & Mzhen

Earlier this month, the Rhode Island Supreme Court decided an interesting case that may factor into how other states handle loss-of-consortium claims brought by parents against the medical professional they claim was responsible for their child’s preventable birth injury. In the case, Ho-Rath v. Rhode Island Hospital, the plaintiffs were the parents of a child born with a debilitating genetic birth defect.

The plaintiffs claimed that the defendants (several doctors and other medical professionals at the hospital where the mother was treated) were negligent in their treatment. Specifically, the plaintiffs claimed that it was negligent for them not to test the child, prior to her birth, for the genetic disorder that was known to be a possibility, given the family’s history with the disease. The case was brought when their child was 12 years old.

The parents sought compensation on behalf of their minor daughter, but also in their own capacity, seeking compensation for their loss of consortium. A loss of consortium claim seeks compensation for the loss in the enjoyment of another’s company, in this case, the couple’s child.

Mother of Child Born with Cerebral Palsy Claims Doctor Was Negligent

May 11, 2015 | Lebowitz & Mzhen

Earlier last month in Ireland, a mother filed claims against the doctor who delivered her third child, claiming that the doctor’s “poor performance” caused her child to be born with the incurable disease cerebral palsy. According to one local news source, the woman was admitted to the hospital for the birth of her third child on June 15, 2015.

That day, during the birth, the mother’s uterus ruptured, and the infant’s heart rate reached dangerously low levels. This necessitated an emergency cesarean section. However, during the delivery process, the child was distressed from the lack of oxygen it was receiving and needed to be put on anti-seizure medicine. This, however, was not told to the mother.

It wasn’t until later when the mother’s sister, who was also a nurse at the hospital, asked about the course of treatment that it was discovered the doctor did not order hypothermic, or “cooling,” treatment for the baby. This alarmed the baby’s aunt, who was aware that there is research suggesting that cooling therapy goes a long way to help prevent permanent and irreversible damage in children who are deprived of oxygen at birth.

Substantial Lawsuit Brought Against Kaiser After Allegedly Botched Delivery

April 22, 2015 | Lebowitz & Mzhen

The father and guardian ad litem for a child born with severe brain damage has brought a suit in Multnomah County Circuit Court against the hospital system that delivered his daughter. According to a courthouse news source, the father is claiming that his daughter’s seizure disorder and brain damage was a result of the medical negligence of the medical professionals who assisted in the labor and delivery. The complaint alleges that, given his wife’s past deliveries, her labor should have been more closely monitored, and that failure resulted in his daughter’s condition.

In 2010, the mother and father of the child went to St. Vincent Hospital to give birth to their daughter. Kaiser and Providence contracted with St. Vincent’s Hospital to use their services for labor, delivery, and newborn care. This particular child was born with the assistance of Kaiser’s medical staff.

The mother of the child delivered her other child via a Cesarean. However, for this birth the doctor and the mother agreed that they would attempt a vaginal birth before a Cesarean. The couple’s daughter was born after 12 hours of labor, and she was unfortunately found to have been suffering from the effects of the loss of oxygen to her brain. It was alleged that the loss of oxygen during labor was not detected by the hospital staff, and as a result the child suffered permanent brain injuries.

Update on the Proposed No-Fault Birth-Injury Fund Proposed by Maryland Lawmakers

March 16, 2015 | Lebowitz & Mzhen

In an earlier post, we discussed a pending bill in front of the Maryland State Legislature that would establish a no-fault birth-injury fund to help cover the costs associated with having a child with a birth injury. In a recent article by Southern Maryland News Net, the bill is discussed in greater detail.

According to the article, Senate Bill 585 and House Bill 553 would establish a fund to help provide those families who give birth to a child with a neurological injury with the necessary means to care for and treat their child. Specifically, the fund provides money for the “living and care expenses” of the baby. The fund would be created by local participating hospitals that, according to actuarial estimates, would total around $25 million a year.

Pros and Cons of the No-Fault Birth-Injury Fund

The bill has been met by some harsh criticism, some of which is directed at the amount of money that the hospital would deposit into the fund. According to the bill’s sponsors, only about seven babies would qualify to tap into the fund each year. However, according to the Maryland Association for Justice, the number of eligible babies should be closer to 150 per year. If that is the case then the fund will be woefully inadequate to address the needs of all the children born with qualifying birth injuries.