Bringing a child into the world is a beautiful thing, but it can also be dangerous and scary. In many cases, the birth process goes smoothly and results in a healthy baby and mom -- but medical errors can result in unimaginable tragedy.
Birth injuries can be devastating, and some birth injuries are unavoidable. What makes it worse is when a birth injury is fully preventable and was due to the direct result of medical errors or negligence.
As a mom to a beautiful baby boy, Kristen understands the debilitating pain, anger, and gut-wrenching heartache a birth injury can be to your family. She also understands how important it would be to your family to pursue the truth and the need to seek justice for what occurred.
Serious birth injuries can lead to substantial medical bills and lifelong care. While no monetary award can ever take the place of your healthy child, it can help with costs and the stress that often follows.
At Lojewski Abuse & Injury Law, Kristen will pursue full justice within the parameters of Wisconsin law to ease the financial burden. She also understands that, while money justice is all that can be recovered for claims of this nature, that your family likely wants answers and to hold someone accountable for their wrongdoing and negligence. If you believe your child's injuries are the result of medical errors or negligence and want accountability and answers, call Kristen and tell her your story.
What are Birth Injuries?
A birth injury typically involves damage or harm suffered by a baby or a mother before, during, or shortly after the process of labor and delivery.
These injuries can happen for various reasons, often related to complications during birth and vary significantly in terms of severity. Birth injuries can result in the death of your child. If you child survives, he or she may still suffer life altering injuries.
Below is a list of the statistically most common types of birth injuries:
- Cerebral palsy
- Brain damage
- Brachial plexus and other nerve injuries
- Spinal cord injuries
- Subgaleal Hemorrhage (SGH) and other brain bleeds
- Bone fractures (most common is clavicle aka collarbone)
- Perinatal asphyxia
- Erb's palsy
Let's discuss some of these terms in more detail:
- Cerebral palsy -- this is a condition caused by brain damage that affects a child's ability to control muscles and movement. In some cases, it is caused by a lack of oxygen (asphyxia) during birth but can also result from infection or trauma, which can be due to medical negligence such as failure to address complications like fetal distress or oxygen deprivation during birth.
- Brachial plexus -- this is a type of nerve damage. Brachial plexus is a network of nerves located in the neck/shoulder area that extends down the arm and is responsible for producing sensory signals from the spinal cord to the arms and hands. This is sometimes caused by difficulty in delivering the baby's shoulder, where the shoulder gets stuck during birth, prolonged labor, or the use of forceps or a vacuum extractor. Erb's palsy is a type of brachial plexus injury.
- Subgaleal Hemorrhage -- this is a brain bleed and occurs when blood accumulates in the space between the baby's scalp and the skull. It can put a baby at risk for neonatal encephalopathy, seizures, and even death if not treated promptly. In some cases, it can result from trauma during delivery, particularly if forceps or a vacuum extractor is used or if there was excessive pulling during a difficult delivery.
- Perinatal asphyxia -- asphyxia means the lack of oxygen supply and it can have serious consequences for the baby's brain and organs. In some instances, it can lead to brain damage, cerebral palsy and other long-term health problems. Some common causes are umbilical cord issues, placental problems (like placental abruption/previa), infection, trauma, and maternal health issues like preeclampsia, which can be due to failure to monitor baby's oxygen levels, improper management of labor complications, or delay in delivering baby when distress is evident.
It is important to understand the difference between birth injuries and birth defects. Birth injuries often result from medical negligence or a medical mistake, whereas birth defects generally result from a person's genetic makeup or from medications.
Each case is different, so it is important to contact a Birth Injury Attorney if you believe your child sustained a life altering injury due to medical error or negligence during the birth process.
Causes of Birth Injuries
A birth injury with lasting effects can be caused by various medical errors and negligence, including:
- Brain damage due to lack of oxygen
- Head and brain trauma
- Excessive force or pulling during delivery
- Improper use of forceps or a vacuum extractor
- Failure to recognize infant distress
- Delayed delivery
- Prolonged delivery
- Improper management of labor complications
Many complications can arise during the labor and delivery process, and we trust medical providers to prevent and avoid these complications. If medical providers fail to prevent or avoid a birth injury due to medical error or negligence, as a mom, Kristen will pursue full compensation for you.
Birth Injury Liability
If your child's devastating injuries or death were due to medical negligence, who is liable? It is common to name all potential parties in a lawsuit to ensure maximum compensation can be recovered and that all at-fault parties can be held accountable. This may include:
- Obstetrician (OB/GYN)
- Hospital
- Nurse(s)
- Anesthesiologist
- Midwife/Doula
- Neonatologist
- Other medical specialists (depending on the case)
- Equipment manufacturer (if equipment is at issue)
- Pharmaceutical manufacturer (if medication is at issue)
- Other third-party service providers (depending on the case)
When Can You Bring a Birth Injury Claim?
Medical Malpractice cases, including birth injury cases, are some of the most challenging types of cases to resolve in Milwaukee and throughout Wisconsin.
The statute of limitations (i.e., deadline to file a lawsuit) for Wisconsin birth injury lawsuits is three years from the date of the negligence or one year after you discover that your baby was injured, but not more than five years after the medical error.
What does this mean?
If Mom and Dad know right away that a medical error occurred and baby was injured, they have three years from the date of the birth injury (medical error) to file a lawsuit.
If the birth injury is not clear right away, such as the baby has a brain injury that is not noticeable until he or she starts having developmental problems and missing those milestones we as parents follow religiously, then Mom and Dad have one year from the time they discover the injury to file a lawsuit.
But, no matter when Mom and Dad discover the injury, the parents must file the lawsuit within five years from the date of the medical error. This means if the birth injury was caused in 2020, the lawsuit must be filed by 2025, even if Mom and Dad did not know about the injury until 2024.
You can also file a separate claim for the child's losses, and these claims must be filed by the child's tenth birthday.
If you don't file your case before the deadline, the court will likely dismiss it, and you will lose your right to pursue damages.
Lawsuit Requirements in Wisconsin for Birth Injury Cases
In Wisconsin, you are not required to file a certificate of merit with the Court. Many states do require this certificate in medical malpractice cases. Meaning, Wisconsin does not require a retained medical expert to certify early on in the case that the case has merit, although a Wisconsin Birth Injury Attorney knows the benefits of retaining medical experts early on in the process.
Either before you file your lawsuit or within 15 days after you file your lawsuit, you must submit a request for mediation. Mediation is a dispute resolution process and, in medical malpractice cases, it involves a neutral panel of three people, including a health care provider, an attorney, and a lay person. The mediation period is usually 90 days.
If you don't reach a settlement agreement at mediation, you can then proceed with your lawsuit.
Damages and Compensation
The amount and types of compensation available to an individual in a birth injury case vary greatly based on the specific circumstances of the case. In Wisconsin, due to tort reform, some of these damages are capped as well, meaning there is a maximum amount allowed for recovery as decided by Wisconsin law.
Common types of damages awarded in a birth injury case include economic damages and non-economic damages. In limited cases, there may be recovery of punitive damages.
Economic damages include the monetary amounts that an injured party pays as a result of the birth injury sustained from a doctor's negligence, which can include:
- Past and future medical expenses
- Costs for life support and ongoing care
- Costs for therapies
- Special education coverage
- Lost parental wages
- Lost earning capacity of the child
Non-economic damages are the "human" damages or intangible effects of the injury, such as the pain, suffering, loss of society, and effects of disability experienced after birth injury. Wisconsin law allows medical malpractice victims to recover up to $750,000 for such losses.
Sadly, Wisconsin law also limits the non-economic damages recoverable in the tragic and unimaginable event that a birth injury leads to the death of your child. Recoverable damages in that instance include funeral expenses, the lost probable earnings of the child had he or she survived, and up to $500,000 in non-economic damages for the loss of the child's companionship, love, and affection.
Contact a Wisconsin Birth Injury Attorney Today
"Making the decision to have a child -- it is momentous. It is to decide forever to have your heart go walking around outside your body." -- Elizabeth Stone.
As a mom, Kristen understands the sensitivity of birth injury cases. You shouldn't have to fight alone or wonder what you could have done differently when the error was not your fault. Contact Kristen for a free consultation at (414) 999-3771 to share your story and to Be Seen, Be Heard, Be Safe, and Be Championed.