Whether your child is sick with the flu, has a broken bone, or is being tested for diseases with scary names and even scarier prognoses, you trust the healthcare providers you take them to to keep them at least as safe and healthy as they are when you place your child in their care. When your child comes out worse than they were when you took them in, you may feel a spectrum of emotions: anger, fear, frustration, and confusion, to name a few. Pediatric medical care requires patience, attention to detail, and compassion, and when the provider’s care not only does not provide those things but rises to the level of medical negligence, you need to know what your legal options are. At Erin Marshall Law, our experienced attorneys may be able to review your child’s case, offer guidance about your legal rights, and represent your child to ensure that their voice is heard without further traumatizing them. Call (505) 218-9949 for a complimentary consultation to discuss what happened to your child and how you may be able to seek justice through the legal system.
What Is Pediatric Medical Negligence?
Understanding pediatric medical negligence starts with understanding pediatric medical care. Pediatric medical care is medical care for children. Children are not merely small adults. Their bodies are smaller and still developing, with smaller organs that can be affected differently by medications. They are also more susceptible to some illnesses and diseases, and are more prone to being injured in falls or accidents due to their developing bones and smaller size. The different developmental stages that children go through (infant, toddler, pre-teen, adolescent) all have unique health concerns that require personalized approaches.
Pediatric medical negligence occurs when a healthcare provider fails to meet the standard of care when treating a child. This failure can cause harm, injury, or even death to the child. While pediatricians are often the first healthcare provider to come to mind when considering pediatric medical care and negligence, other healthcare providers can also be negligent when caring for children. This can include emergency room doctors, obstetrician-gynecologists (OBGYN), nurses, hospital staff such as anesthesiologists, or any provider who treats a child.
How Is Pediatric Medical Negligence Different From Adult Medical Negligence?
Parents may question why there is a special category of medical negligence for child patients. Just as pediatric medical care differs from adult medical care, pediatric medical negligence has unique legal and medical considerations that adult medical negligence does not.
Parent or Guardian Must File Claim
One of the first considerations is that a child cannot file their own claim. Children, or minors, are typically anyone under the age of majority or age 18. Because they are under 18 and not considered adults, children cannot file a claim independently, even if they are aware of the negligence and would want to. Instead, their parent or guardian must file a claim on their behalf. In some cases, a Guardian ad Litem (GAL), typically an attorney representing the best interests of the child, is appointed by the court to bring the child’s claim.
Statute of Limitations May Be Extended
Section 41-5-13 (2021) of the New Mexico Statutes provides adults with three years from the date the medical negligence occurred to file a claim. However, it also provides that the time for a minor to bring a claim is extended until one year from their age of majority (18) to commence legal action. This creates a somewhat variable statute of limitations for children under the age of 18. However, there may be other exceptions to the statute of limitations that may provide more or less time to file a claim, which is why speaking with an attorney may be important to ensuring that a claim is filed before the statute of limitations expires and the claim is barred.
Difficulty Determining Damages Due to Child’s Continuing Development
As previously indicated, children are still growing and developing, with many unique changes to both their bodies and their minds. This physical and cognitive development is a significant factor in determining damages, as the long-term impact on the child’s growth and development is a primary concern in filing a pediatric medical negligence claim. These cases may require more time and expert opinions to assess how the injury may affect the child’s future growth, education, and earning potential. These assessments are critical to the case, because once the claim is settled, the family cannot seek more compensation. Having a thorough understanding of how the negligence impacts the child’s future is essential to asking for and receiving the full compensation the child may be entitled to under the law.
Child’s Inability to Participate in Their Own Healthcare
In many cases, adults can ask questions about their own healthcare and can later testify as to what questions they asked and what answers were provided. They can often accurately identify and explain symptoms and injuries that indicate something did not go according to plan with a diagnosis, treatment, or surgery. They can seek out second opinions to learn more about their conditions. Children are not always able to do these things.
Children, particularly young and especially pre-verbal children, often cannot describe or explain symptoms or injuries of the original concern that caused their parent to seek medical treatment. Tears, complaints of pain or illness, and parental observations are often the only indications of a problem. Parents often must seek out second opinions and try to observe and identify symptoms or injuries that would indicate pediatric medical negligence. This can make it more difficult (though not impossible) to prove negligence.
What Is the Most Common Pediatric Medical Error?
Unfortunately, there are no hard numbers that can provide a definite answer as to the most common pediatric medical error. However, one of the most common preventable errors is medication errors. According to the National Library of Medicine, there is an estimated 7.5 million preventable medication errors potentially occurring in pediatric patients each year. Of those, 14% to 31% have the potential to cause harm or death to pediatric patients.
Also worth noting is that there are higher rates of medication errors in pediatric patients than adult patients, with a rate of 31% in pediatrics and only 13% in adults. These errors also occur across all phases of the medication process, including prescribing, dispensing, and administering.
Prescribing Medication Errors
Many prescription errors can occur in pediatric medical care. Prescribers can choose the wrong drug, prescribe an incorrect dosage of the correct medication, or prescribe the wrong method of administration. Other prescribing errors may include a lack of treatment personalization, using an unlicensed or off-label medicine, or an inappropriate prescription, such as one that is incorrect or unreadable. While others, such as pharmacists filling prescriptions, are involved, these errors often come directly from the prescribing healthcare provider.
Dispensing Medication Errors
Dispensing errors may include failing to register administered medications into the pediatric patient’s medical chart or incorrect transcriptions of the administration into the medical record. Incorrect transcriptions may involve errors in the drug’s name and dosage or the frequency and timing of administration. These errors can cause under- or over-medicating errors, as well as other issues such as not knowing with certainty what medications the child has taken, and whether the dosage or the number of administrations of the drug has under- or over-medicated the child.
Administering Medication Errors
Errors in medication administration for pediatric patients can include administering a non-prescribed drug or the wrong drug preparation, such as the wrong dilution or incorrect capsule division. Route of administration, and frequency and time of administration errors can also occur. Another administration error that may occur is administering medication under inappropriate conditions.
Whether it is an error in prescribing, dispensing, or administering medication, these errors can have long-lasting and potentially even fatal effects for pediatric patients. Parents or guardians who believe their child may have experienced pediatric medical negligence in the form of a medication error may want to consult with an experienced medical negligence attorney at Erin Marshall Law to learn more about their legal rights and options.
Other Common Errors That Can Lead to Pediatric Medical Negligence
Several other common errors can lead to pediatric medical negligence. These include:
- Errors from misunderstood patient characteristics, such as differences between the child’s age and weight
- The child’s inability to play a role in their own healthcare and error prevention
- Diagnostic errors
- Surgical mistakes including “never events.” (“Never events” are events that should never happen, such as operating on the wrong body part or leaving a surgical tool in the patient.)
- Anesthesia errors
- Birth injuries, some of which are not treatable and cause the child to live with a permanent disability, according to the Birth Injury Center
- Failure to monitor (failing to properly observe the child’s vital signs, particularly in critical care situations)
How to Prove Pediatric Medical Negligence
While it may seem like proving pediatric medical negligence would be as easy as showing that a medication error was made or that a birth injury occurred, it is not that simple. In some cases, negligence may be apparent, but in many cases, parents or guardians must provide other evidence. There are some specific types of evidence that parents or guardians can start to collect that will likely apply to any medical negligence case. Still, there may also be other types of evidence that an attorney will suggest, depending on the circumstances.
Gain Access to the Child’s Full Medical Records
One of the most critical parts of evidence-gathering in a pediatric medical negligence claim is access to the child’s complete medical records. These records often contain information that can prove or disprove the claim, which is why parents or guardians cannot simply rely on the provider or facility to hand over the full record. Additionally, some of these records may include things that the parents have in their possession, which is why it is important to keep all paperwork from any healthcare provider.
When getting access to the child’s full medical records, make sure to ask for and confirm the inclusion of things such as discharge instructions, medication labels, diagnostic testing orders and results, bills, communications with the provider (emails, texts, messages through a patient portal), and other paperwork.
Gather Witness Statements and Expert Testimony
Medical providers typically will not admit their negligence. However, other medical staff or people who were present may have observed or overheard evidence of the mistakes made. Gather witness statements from nurses and other medical staff who were there. If friends or family were present, or another patient in the office heard the provider admit the error to another staff member or heard them say they were going to do one thing and observed them doing something different, witness statements from them will also help.
Expert witnesses can offer testimony explaining the mistakes made, the harm the mistake caused, and how the mistake could have been avoided. An attorney may also subpoena the medical office or hospital administration for standard practices, protocols, and rules. This can be used to show how the provider’s actions were not aligned with the standard of care.
Other Useful Evidence
Other evidence that can be useful in a pediatric negligence claim includes photos or videos of physical injuries or harm from the negligence, such as bruising or other skin changes, broken bones or birth injuries. Before and after photos or videos may also be useful to show the difference between the child’s appearance or behavior prior to the negligent act and after.
Phone records that establish the parent or guardian’s attempts to follow up or otherwise show timing of communications with the provider can also be helpful, particularly in cases where the provider claims not to have known the child was harmed or that the parent or guardian never contacted them regarding the negligence. Previous records of complaints can also greatly benefit a medical negligence claim.
How a New Mexico Medical Negligence Attorney May Benefit You
Children, whether newly born or in their adolescence, are some of the most vulnerable patients. With no experience and little ability to speak up for themselves, they do not always recognize when something wrong happens, and they do not know how to ask questions regarding their treatments. Instead, they rely on healthcare providers to do their jobs properly and parents and guardians to speak up on their behalf when those providers fail. A New Mexico pediatric medical negligence attorney at Erin Marshall Law may be able to assist you in determining whether negligence occurred, gathering evidence, negotiating a settlement, and representing you and your child in court. Call our Albuquerque office at (505) 218-9949 to schedule your complimentary consultation and learn more about your legal rights and options when a healthcare provider has harmed your child.
