As a parent, you likely had big dreams around the birth of your child. From your visions of how the pregnancy, labor, and delivery would go to the dreams of life as a parent with your child, everything likely had that rosy glow of excitement, love, and optimism. So when your child was diagnosed with a condition that will impact their entire life and change all the dreams you had, it can be a devastating blow. You may feel sad, angry, and confused, and want to blame someone. If your child suffered birth injuries, you may be able to blame someone and hold them legally and financially responsible for your child’s suffering. If your child suffers from birth defects, the situation changes. Understanding the differences between them and being able to get confirmation from a medical professional about which one you are dealing with is critical to determining whether you have a medical malpractice claim. You may want to speak with a New Mexico birth injury attorney at Erin Marshall Law to learn more about medical malpractice and what your next steps would be if you have a case by calling (505) 218-9949 to schedule a free consultation.
What Are Birth Defects?
Understanding the difference between birth injuries and birth defects is critical when determining whether certain conditions are birth injuries or birth defects. While there can be some overlap, the two tend to differ.
Birth Defect Definition
Birth defects are structural or functional abnormalities that are present at birth. They arise during fetal development, most often in the first trimester, but they may develop at any point during the pregnancy. Defects may affect the baby’s appearance, internal organs, or bodily functions. They are often discovered during the pregnancy during ultrasounds or other testing, so the parents are aware before the baby is born.
Birth Defect Causes
Birth defect causes are not always clear. Birth defects can be caused by a combination of genetic factors, environmental exposures such as medications or infections, and maternal health conditions such as diabetes. Defects are not typically caused by a healthcare provider, though in rare instances (such as when a medication causes the birth defect), a healthcare provider may be liable. In general, birth defects are considered no one’s fault, especially when it is not possible to identify what caused the defect.
Birth Defect Prevention
Some birth defects are preventable with proper prenatal care. For example, taking folic acid supports healthy cell growth and development, which can prevent neural tube defects such as spina bifida. However, many birth defects are unpreventable. In some cases, even when steps are taken to avoid a particular birth defect, the defect may still occur.
Birth Defects Examples
Birth defects can include:
- Heart defects
- Spina bifida
- Cleft palate or lip
- Down syndrome
- Clubfoot
- Developmental dysplasia of the hip
- Cerebral palsy
There are many other possible birth defects, and while parents may be made aware of a defect during the pregnancy, others are not identifiable until after the baby has been born.
What Are Birth Injuries?
Birth injuries are similar to birth defects in the way they substantially impact the baby’s life. Knowing whether the baby suffered a birth injury or was born with a birth defect is critical to understanding whether a healthcare provider may be liable for the baby’s condition.
Birth Injury Definition
Birth injuries are physical trauma sustained by the baby during labor and delivery. Injuries can occur due to complications during the delivery, medical mistakes, or improper use of delivery tools. A birth injury will not have been present during the pregnancy and would not have been indicated in any ultrasounds or other testing done during pregnancy, as the injury does not occur until the birth.
Birth Injury Causes
Birth injuries can be the result of many things. A few potential causes include prolonged labor, shoulder dystocia (when one or both of the baby’s shoulders get stuck during delivery), fetal distress, or improper use of forceps or vacuum extractors. While parents may know that something was wrong during the labor and delivery, they will often need to get copies of the mother’s and the baby’s medical records and consult with other healthcare providers and a medical malpractice attorney at Erin Marshall Law to determine if their child suffered a birth injury that was the result of a healthcare provider’s negligence.
Birth Injury Prevention
Unlike birth defects, birth injuries are often preventable. Careful medical attention can prevent most birth injuries. This includes proper monitoring during labor, timely Cesarean sections (C-sections) when needed, and appropriate use of delivery instruments. Managing maternal health conditions, monitoring fetal growth and identifying fetal distress can play a role in prevention. Avoiding unnecessary interventions and promptly managing complications can also assist in preventing birth injuries.
Birth Injury Examples
Common birth injuries include broken collarbones, nerve damage such as Erb’s palsy, brain damage such as cerebral palsy (the most common birth injury), spinal cord injuries, and bone injuries. Many other birth injuries can occur, typically caused by some kind of trauma during the birth process. In some cases, the healthcare provider may refer to a birth injury as a birth defect, but the distinction between the two must be clarified.
When Birth Defects and Birth Injuries Cross
Some conditions can be either birth defects or birth injuries. For example, the Mayo Clinic describes the various circumstances that may cause cerebral palsy, including gene changes, maternal infections, traumatic head injury (such as improper use of forceps during delivery) and lack of oxygen to the brain during a hard labor and delivery. Cerebral palsy is just one condition that can be either a birth defect or a birth injury. Brain injuries, spinal cord injuries, and cleft lips or palates are other examples of conditions that can be either an injury or a defect. In most cases, the cause and the timing will determine whether a condition is a birth injury or birth defect.
Birth defects are often diagnosed before birth, but some are not apparent until sometime after the birth. Birth injuries will never be diagnosed during the pregnancy, as they are the result of the birth. The baby’s doctor can do a full medical examination, imaging, and other testing to try to determine if the condition is a birth defect or birth injury. While many birth defects do not have a known cause, the examination and testing may be able to point to the cause of birth injuries.
Legal Implications of Birth Defects Vs. Birth Injuries
Understanding the differences between birth defects and birth injuries is critical due to the different legal implications of each. From grounds for a medical malpractice claim to who can be liable, there are several implications to consider.
Grounds For a Claim
Birth injuries can often be grounds for a birth injury claim. Birth injury claims are a form of medical malpractice claim. If the birth injury resulted from a healthcare provider’s negligence or failure to meet the accepted standard of care, the family may be able to file a claim against the provider. Birth defects are generally not grounds for a medical malpractice claim since they often occur during early pregnancy and may be unpreventable, caused by genetic factors or maternal conditions that are not the result of provider negligence.
However, there are rare instances in which a birth defect may be the result of provider negligence. For example, if a provider knowingly prescribes a pregnant woman a medication known to cause a particular birth defect and the baby is born with that birth defect, the family may be able to hold that provider liable. Whether it is an injury or a defect, these cases are complicated and families should consider consulting with an attorney to gain a better understanding of their circumstances and whether they may have a legal case.
No Legal Difference Between Defects and Injuries
New Mexico law does not differentiate between birth defects and birth injuries. This may seem beneficial, particularly for conditions such as cerebral palsy, which can be either a birth defect or a birth injury. However, the family would still need to establish causation between a provider’s actions and the injury or defect.
Provider Liability
A common mistake many families make is thinking that the doctor who delivered their baby is the only provider who can be liable for their baby’s birth injury or birth defect. However, any healthcare provider who played a role in the baby’s birth and the injury may be liable for a birth injury. This includes doctors, midwives, nurses, birthing centers, hospitals, pathologists, laboratories, and pharmacists.
This may also hold true in those rare cases in which a birth defect is caused by a provider. For example, if the medication the doctor prescribed causes birth defects, and a pharmacist fills the prescription, both providers may be liable if the woman is noticeably pregnant or if she specifically asks if the medication presents any concerns or dangers to her unborn child.
Statute of Limitations
N.M. Stat. Ann. § 41-5-13 provides individuals with three years to file their claim. However, in cases of birth injuries, the injured party is the newborn. Because children cannot file a lawsuit, this law extends the statute of limitations to one year from and after the age of majority or the termination of incapacity. This means that families legally have until one year from the child’s eighteenth birthday to file the claim.
However, families do not want to wait that long. Over time, people’s memories of the circumstances surrounding the birth will fade. Medical records can be lost or destroyed. The sooner a claim is filed, the easier it will be to collect any evidence that exists.
How a New Mexico Birth Injury Attorney Can Assist You
If your child has suffered a birth injury, or you suspect a healthcare provider has labeled such an injury as a birth defect, it is crucial to take action as soon as possible. At Erin Marshall Law, our experienced New Mexico birth injury attorneys understand the nuances of birth injuries and birth defects. You can schedule a free consultation where we may review your and your baby’s medical records, explain whether you have a medical malpractice claim, and explain what your next steps should be. Call (505) 218-9949 to book your appointment in our Albuquerque office.
