While every soon-to-be parent hopes for a smooth, uneventful pregnancy, labor, and delivery, birth trauma and injury can be all too common.
The birth process — which results in about 6-8 birth injuries per 1,000 live births in the U.S. — can leave mothers and babies alike with physical and emotional injury during a time that should feel celebratory. That aftermath can be confusing, lonely, and incredibly stressful, especially if parents are left wondering whether medical negligence contributed to their child’s injury or death.
While nothing can reverse a birth injury, the medical malpractice attorneys at Burg Simpson are deeply experienced in securing justice and compensation for families that experience this traumatic event — and are ready to arm parents with the facts and resources they need to face a birth injury case.
What Is a Birth Injury?
A birth injury generally starts with a medical complication in pregnancy or birth, said Burg Simpson Attorney Marc Johnson.
Johnson, who has practiced medical malpractice and birth injury law for more than 15 years, said that natural complications like gestational diabetes, maternal blood pressure concerns, or an issue during labor and delivery can lead to birth injuries, which occur when medical providers don’t respond appropriately to the complication.
Johnson and Scott Eldredge — a birth injury attorney since the late 80s — commonly see birth injuries after a fetus’ heart rate decompensates during labor. While this situation can be handled through quick intervention and delivery, injury can happen if care providers don’t act quickly enough.
Birth injuries can also occur if medical professionals don’t appropriately resuscitate a baby who is experiencing difficulty after birth, the attorneys said. Other injuries include:
- Kernicterus – This condition can cause cerebral palsy if a baby with rising levels of bilirubin, also known as jaundice, is not appropriately managed post-birth.
- Inadequate glucose monitoring – If a healthcare team does not keep an active eye on a baby’s glucose levels, that baby can suffer a brain injury.
- Shoulder dystocia – This event occurs when a baby gets caught in the birth canal and their head is delivered, but their shoulder is not. When a doctor pulls on the baby, they can damage the infant’s brachial plexus nerve, causing lasting physical injury.
Of course, mothers can experience injuries, too. Johnson recalled a case in which a mother’s blood pressure was too high before she gave birth. While blood pressure can return to normal after birth, hers did not. Medical providers did not properly monitor the mother’s postpartum blood pressure, and she experienced a catastrophic stroke, Johnson said.
How Do I Protect Against Birth Injuries?
While there’s nothing you can do to fully prevent a birth injury, Eldredge and Johnson recommend that parents not hesitate to advocate for their baby if they suspect something is going wrong during pregnancy, labor, or delivery.
“A lot of times, people will defer to the nursing staff, defer to the doctors,” Johnson said. “Parents, and particularly mothers, have an intuition that they should follow. That’s there for a reason. And even if their concerns are determined to be not of consequence to the mother or to the child, it’s still worth bringing it up.”
Expectant parents can also research their medical providers ahead of labor and delivery using Colorado’s Department of Regulatory Agencies website, which allows users to look up physicians, their education, and any legal or administrative action taken against them. While getting sued once doesn’t mean a doctor is bad at their job, a pattern of successful litigation against them may be something to consider.
”Unfortunately, both Scott (Eldredge) and I have seen multiple cases against the same providers with different patients — there are some bad apples out there,” Johnson said. “And one way that you can try to protect yourself against that is to go on the Department of Regulatory Agency’s website and look up that historical information.”
How Should I Approach Birth Injury Claims in Colorado?
If you are concerned about a potential birth injury, it’s important that you reach out to a qualified legal professional as soon as possible.
While the aftermath of birth injuries is overwhelming and stressful, Eldredge emphasized that it’s critical to retain a birth injury attorney quickly so you don’t lose critical memories or details to time.
“Sooner is better than later,” he said. “The sooner [clients] reach out, the clearer their memories will be, and the quicker we can begin to evaluate the case.”
When Eldredge and Johnson receive an inquiry, they arrange a detailed conversation with the prospective client, gathering all the information they can while it’s fresh. A client’s memories and experience help in the preparation of any case, so it’s vital that a prospective client creates a record of everything they remember from the birth.
“In the shoulder dystocia cases that we’ve handled successfully, the parent’s recitation of what happened during the delivery is very important,” Eldredge said. “Did the doctor encourage them to stop pushing? Did it look like the doctor was straining as they were trying to pull the baby out?”
Though it’s crucial to retain an attorney quickly, it’s equally essential to hire someone who’s well-versed in Colorado medical malpractice law and regularly takes on birth injury cases. Johnson and Eldredge have more than 50 years of combined medical malpractice experience, and they also regularly stay up to date on medical literature and new advances in clinical care.
“Most lawyers don’t go to court. Of the lawyers that go to court, most lawyers don’t do personal injury litigation,” Eldredge said. “Most lawyers that do personal injury litigation don’t do medical malpractice litigation, and most lawyers that do medical malpractice litigation don’t handle birth injury cases because they’re the most difficult, they’re the most time-consuming, they’re the most expensive cases, and it’s why families should find a firm that has handled this type of litigation for over 35 years.”
What Regulations and Caps Does Colorado Have on Birth Injury Claims?
Colorado statutes give parents two years from the point at which they knew or should have known about medical malpractice to file a claim on their own behalf, while a claim filed for a child may be viable for up to two years after the child turns 18.
That window for a child’s claim is lengthy for good reason. Though a child’s injuries are sometimes apparent immediately after birth, it can take a few years for observation and testing to confirm the extent of cognitive injuries.
Johnson once handled a case in which his Burg Simpson team followed a client’s child for years, ensuring they had the information they needed to fully understand the extent of the child’s injuries and future medical needs. That allowed Burg Simpson to engage the numerous experts needed to forecast every need and expense an injured child is likely to encounter for the rest of their life.
While this timeline can feel lengthy, the birth injury team at Burg Simpson recognizes the importance of spending the time and resources necessary to build the strongest case.
“When you file a case, you get one opportunity to recover damages,” said Johnson, who noted that the foundation developed in this particular claim allowed his team to resolve the case with the help of a mediator and fund a Trust set up to cover the child’s lifetime care needs.
Unfortunately, even if attorneys win a favorable outcome for a birth injury client, Colorado caps a victim’s damages. The state has a relatively low cap on non-economic damages (which include pain, suffering, and loss of enjoyment of life) for victims who suffer a birth injury or the loss of a child to medical malpractice.
“I think birth injuries are among the most egregious examples of why those caps are completely inappropriate and don’t adequately compensate the citizens of our state,” Johnson said.
Though Colorado has a $1 million cap on economic damages, a judge can exceed that limit if they find there’s a valid basis to do so.
“We often are able to recover significant amounts of money for the families of these birth-injured children, way in excess of the million-dollar cap, because the injuries are so severe and the future needs are so high,” Eldredge said.
Finding a Birth Injury Lawyer in Colorado
Burg Simpson’s medical malpractice and birth injury attorneys provide free case evaluations to prospective clients, who, through Burg Simpson, will have access to some of the most experienced and highly credentialed experts in the country.
“We don’t hire experts whose sole job is to review and testify in medical malpractice cases,” Johnson said. “We get experts in the top of their fields that can substantiate the claim.”
Burg Simpson is also a large firm, which makes a difference in expensive birth injury cases. The firm has the resources to cover costs — like hiring the top experts — up front, meaning clients can benefit from the best team before they even step foot in the courtroom.
While the birth injury claim process can be complicated, experienced lawyers can bring together the right combination of experts, planning, and funding to be able to provide for injured children for the rest of their lives, Eldredge said.
“The first birth injury case I handled in the 80s, I met the family within days after the baby’s birth. She was injured, but not so injured that she couldn’t walk and couldn’t talk. I had the opportunity to attend her high school graduation 18 years later, which was a real thrill for me, and we stay in contact to this day,” Eldredge said.
If you suspect your child experienced a birth injury due to medical negligence, contact the experienced attorneys at Burg Simpson Law Firm today.
The news and editorial staffs of The Denver Post had no role in this post’s preparation.