Q: What is the statute of limitations for bringing a birth injury claim in California?
A: The statute of limitations for medical negligence cases in California is found in Code of Civil Procedure §340.5. In California, injuries to a child under the full age of 6, must be brought within three years, or prior to the child’s 8th birthday, whichever is longer. California also has a special “birth injury” statute of limitations found in Code of Civil Procedure §36. However, case law has interpreted the statute of limitations in CCP §340.5 to be applicable.
Q: I am a Kaiser member. Is my newborn bound by the Kaiser contract?
A: Yes. Two California Court of Appeal decisions have ruled that unborn children become Kaiser members, and are subject to the Kaiser arbitration agreement, immediately upon their birth. The fact that the children themselves are not old enough to contract, and are not legally in existence when the contract was negotiated, have been held to be irrelevant. For this reason, birth injury claims brought against Kaiser, or The Permanente Medical Group, are subject to the arbitration provisions of the Kaiser contract. (For more information regarding Kaiser, please visit our special Web site focusing exclusively on Kaiser claims, at www.kaiserinjurylawyers.com.)
Q: How can I get information about the merits of a possible birth injury claim?
A: If you have questions about the existence of a potential birth injury claim, or the chances for success at trial or arbitration, you should call us at 1-888-SFATTYS, or (415) 981-7210. We will discuss your case, and determine whether or not medical records should be obtained and submitted for expert review to a qualified obstetrician.
Q: If we prosecute a case on behalf of our child, how long will it take to reach resolution?
A: In California, the Superior Courts operate under what is known as a “fast track” system. Under this system, 80% of cases must be resolved within 12 months; 90% within 18 months; and, 100% of all cases must be resolved within 24 months. Because in most cases it is not possible to determine long-term needs of injured infants until at least 3 years of age, most cases do not resolve before complete neurological assessment can be completed.
Q: Are there limits on the amount of recovery against a doctor or hospital?
A: Yes. Under California law, for more than 35 years, injured patients have been limited in what they can recover against doctors and hospitals. The most unfair limit on recovery is the $250,000 “cap” on general (pain and suffering) damages for such things as inconvenience, disfigurement, emotional distress, pain and suffering. California’s regressive and outdated law punishes injured children by limiting the maximum amount they may recover for their non-economic harm. This statutory limit has existed since 1975 and has been repeatedly upheld as constitutional. In addition to this amount, an injured child is entitled to seek recovery for lost earnings, pension benefits and fringe benefits which will result because of a lifetime of disability, and, such amounts as are required to provide nursing, attendant, medical and rehabilitative care. Defendants are entitled to introduce evidence of available government benefits including social security, private insurance, and local school district benefits.
Q: If we file a lawsuit, where will the trial be held?
A: Under California law, an action for medical negligence must be filed in the county where the injury occurred, or where the defendants (the doctors or hospital) or any of them, reside.
Q: Do all medical malpractice cases require expert testimony?
A: Under current California law, the testimony of a medical expert is almost always required to prove the existence of negligence in a birth injury case. The plaintiff has the burden of proof in all such cases. This means, the injured person and their lawyers must prove, by a 51% or greater likelihood, the fault or culpability of the defendants. To do this, an expert is almost always required. If a plaintiff claiming a birth injury does not have appropriate medical experts, the patient will almost certain lose his/her claim.
Q: Are witnesses besides experts needed during the process of the lawsuit?
A: Yes. As we go forward on your behalf towards trial, we will consult with experts in areas including pediatric neurology, perinatology, life care planning, physical medicine and rehabilitation, vocational rehabilitation and economics. Utilizing experts in disciplines other than medicine, we will do our best to outline and recover all of the losses which your child will sustain in the future.
Q: What's the difference between a birth defect and a birth injury?
A: Birth injuries are generally caused by something that went wrong during delivery, while birth defects usually involve harm to a baby that arose prior to birth, as a result of genetics, infection, or something that happened during or before the pregnancy.
Q: What kinds of situations give rise to a lawsuit for birth injuries?
A: Most cases occur when a doctor, nurse mid wife or other health care professional fails to adequately assess or respond to conditions and complications during a woman's pregnancy or delivery.
Q: What is medical malpractice?
A: Medical malpractice is negligence committed by a professional health care provider--a doctor, nurse, dentist, technician, hospital or hospital worker--whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients. The profession itself sets the standard for malpractice by its own custom and practice. A breech of the standard of care must always be proved by the injured person through expert testimony
Q: How common are birth injuries?
A: It has been estimated that, for every 1000 babies born in the U.S., five will be injured during birth.
Q: In a lawsuit for birth injury, how does a jury determine if a doctor's actions were within the standards of good medical practice?
A: A jury considers the testimony of experts-- other doctors, who testify whether they believe your physician's actions followed standard medical practice or fell below the accepted standard of care.
Q: Who is to blame for such injuries when it comes to legal action?
A: A birth injury is not a simple matter. It is often one of the hardest types of malpractice to prove. Many people are involved in a birth injury lawsuit, such as nurses, anesthesiologists, obstetricians, mid wives, and some cases have been extended to include the whole hospital. But there is always the question of who should the lawsuit focus on. This is why it is very important to find a lawyer who is experienced when it comes to birth injuries suits.
Q: What is the best way to go about seeking legal action for brain damage caused by birth injury
A: Often parents of an injured child decide to sue because they feel that some form of malpractice has taken place. In most cases these parents have no idea what they are getting into, nor do they understand fully what this type of lawsuit will entail. When a family decides to go forward, they will need to hire an experienced lawyer that they feel confident in and one whom they feel can do the best job for them.
Q. What causes a birth injury?
A. There are many causes of birth injuries and any baby or mother is at risk. The most common causes include oxygen deprivation, use of excessive force during delivery, delay in performing a necessary cesarean section, or lack of proper medical care.
Q. What are some common birth injuries?
A. The most common birth injuries include fractures to the arm or collar bone, bruising on the face or head, umbilical cord entrapment and skin irritations. More serious birth injuries, such as Cerebral Palsy or Erb’s Palsy, may occur less frequently, but often cause lasting pain and suffering.
Q. How often will a birth injury occur?
A.With all of the advances in the medical profession, injuries to infants or mothers before, during, or just after delivery have been greatly reduced. Statistics show that approximately 3 out of every 100 babies born in the United States each year suffer from birth injuries. It is important to receive proper medical care to reduce the chances of suffering a birth injury.
Q. Can medical malpractice lead to a birth injury?
A. Doctors and all other medical personnel must use a level of skill equal to that of everyone else in their profession under similar circumstances. Proper pre-natal care is vital to the healthy delivery of a child. The baby and mother should be monitored throughout the pregnancy to check for certain signs of risk or danger. If your doctor does not perform the necessary tests or give you adequate attention, this negligence may result in a serious birth injury. Negligence is difficult to prove, and the sooner the matter is investigated, the greater the chances are of receiving compensation.
Q: What are some common types of birth trauma and injuries?
A: The most common birth injuries are Erb’s palsy, brachial plexus, cerebral palsy, brain damage and shoulder dystocia. A good birth injury lawyer is familiar with all these issues.
Q: How can I know whether the doctor is responsible for my child's birth injury?
A: This is not easily done. An investigation must be completed by qualified birth injury attorneys to ensure the process is done thoroughly.
Q: What other types of injuries may be caused by the doctor?
A: Other injuries resulting from a doctor’s malpractice might include soft tissue injuries, skull fractures, facial paralysis, nerve trauma, body paralysis and spinal cord damage. These are serious matters, requiring the expert help of a birth injury lawyer.
Q: What are some examples of errors that occur in the delivery room?
A: Errors that may lead to birth injuries include hospital neglect, giving the wrong drugs, improper epidural, miscalculation of contractions, failure to take vital signs, improper extraction of the infant and forced delivery. Competent birth injury attorneys can discern these matters.
Q: My baby has been given a clinical diagnosis of asphyxia. What does this mean?
A: Asphyxia refers to the lack of oxygenated blood flow in the baby’s brain, when the oxygen levels fall below normal and cause brain damage. It is the responsibility of a clinician to monitor the fetus' oxygen for any signs of abnormalities
