A prenatal injury can have devastating impacts on a child’s start in life. Sadly, these injuries can also have enormous consequences for the financial health and future of the entire family – substantially impacting the opportunities parents are able to offer their injured child many years down the road. If a prenatal injury occurs as the result of another party’s misconduct or negligence, it may be possible to recover compensation to cover the costs of medical expenses and other losses related to your child’s injury by filing a prenatal injury lawsuit. The process can be complicated, primarily because the exact rules that apply at each stage often depend in part on the type of injury, the circumstances under which the injury occurred, and even the relationship of the potentially responsible party to the mother and fetus – particularly if the prenatal injury occurred in a medical context. An experienced New Mexico maternity and birth injury attorney with Erin Marshall Law may be able to help you chart your path forward in a private consultation. Call 505-218-9949 to schedule a time with our Albuquerque office.
Causes of Prenatal Injuries
Given that in many cases a prenatal injury may not be recognized until the baby is delivered, it is not surprising that prenatal injuries are often considered together with birth injuries – those that occur during the labor and delivery process. The Birth Injury Help Center explains that many of the injuries in this latter category are, like so many of life’s tragedies, no one’s fault – often stemming from some “natural” birth defect or other abnormality in fetal development. They may be especially likely if the developmental deviation is of a type likely to cause a difficult delivery.
However, as the Center goes on to explain, a subset of injuries identified in newborns actually stem from problems earlier in the pregnancy. These prenatal injuries can stem from many different sources, but – because fetal development is so closely linked to maternal health – the mother’s treatment during care and any physical trauma sustained during pregnancy are among the most common causes.
Prenatal Injuries Caused by Failures in Maternity Care
Because a developing fetus is completely reliant on the mother’s body for food, protection, and even for oxygen, any harm to a pregnant person’s body has the potential to injure the unborn child as well. In medical contexts, one of the most common ways this unfortunate scenario plays out is through a missed diagnosis during the pregnancy.
In addition to specific concerns they may only screen for based on a pregnant person’s symptoms and personal history, such as genetic conditions and certain types of infections, medical professionals tasked with seeing a woman through pregnancy to the successful delivery of a baby generally monitor a pregnant person for signs of common, potentially serious pregnancy-related complications, such as preeclampsia, or gestational diabetes, as well as for signs of any issues with the growing baby that could affect the delivery, such as fetal macrosomia – a term that refers to a fetus significantly larger than average for gestational age. According to the Mayo Clinic, macrosomia affects about 9% of pregnancies around the world, and is associated with a significant increase in the difficulty of vaginal deliveries. In the vast majority of cases, these conditions can be managed without harm when they are identified in a timely manner and promptly treated. A late or missed diagnosis, however, can lead to serious and even life-threatening complications for both mother and baby.
Prenatal Injuries Caused by Maternal Trauma
The same total dependence on a mother’s body that makes a developing fetus susceptible to diagnostic and treatment failures in maternity care also leave an unborn infant vulnerable to the impacts of serious physical trauma their mother sustains while carrying the child in her womb. The Mayo Clinic identifies auto accidents as the most common cause of blunt force trauma during pregnancy, account for half of all maternal trauma cases and around 80% of fetal deaths – a term used to refer to the death of an unborn child, usually one that occurs prior to the natural onset of labor (after that point, the death is more commonly called a stillbirth).
Despite ongoing struggles with prenatal and maternity care, New Mexico takes harm done to pregnant women and the children they are carrying very seriously. State law makes provision for an individual who causes the death of a fetus by injuring the mother to be held to account by trial in the criminal courts. However, if a pregnant mother is injured by another party – either by direct physical assault or through negligence that leads to injury – and does not lose the pregnancy, then after the baby is delivered the consequences of the prenatal injury may become apparent, and the family may need to pursue compensation through New Mexico’s civil court system in order to cover the costs of immediate and in some cases ongoing medical care for infant health issues caused by the injury in utero.
Steps to Filing a Lawsuit
In many respects, the steps involved in filing a prenatal injury lawsuit are the same as for filing any other type of action in a civil torts case. You will need to identify the party or parties responsible for the harm done to your baby, and collect appropriate documentation – both showing the extent of the prenatal injury’s impact on your family and connecting the adverse event with which the party you are suing was involved to your child’s injury (in other words, you will need to show the economic and non-economic burdens placed on your family by the injury, and you will also need to establish a cause-and-effect relationship between the conduct of the party you are suing and the injury your child has suffered).
Identifying Crucial Documents
In most instances, the bulk of the documentation you will need is likely to be medical in nature – diagnostic results, prescribed treatments, fees charged for care – but in some instances other types of records may also be needed, depending on the circumstances and how the prenatal injury came about. A maternal care and birth injury attorney with Erin Marshall Law may be able to help you identify the records you may need to advance your case.
Filing the Petition
Civil actions in New Mexico are initiated by filing a petition with the District Court, pursuant to NMRA 1-003, or with a Magistrate Court, pursuant to NMRA Rule 2-201. One of the most important items to consider in filing your petition to recover compensation for a prenatal injury may be the statute of limitations – the maximum period of time you have for filing an action to recover damages after an injury is discovered. New Mexico’s laws concerning the statutes of limitations in cases involving children can be complicated, especially where healthcare providers may be among the parties named as defendants in the petition. Consider speaking with an experienced attorney in your area who can give you an overview of the process tailored to your specific situation.
Service of Process
Service of process can be a complicated matter, but the logic behind the requirement is that it would be very unfair to defendants to allow them to be sued and held liable, without any chance to present arguments in their own defense, or even a notice that they had been named in a legal action. Consequently, the civil courts mandate strict requirements for the legalities surrounding service of process – otherwise known as serving someone “with papers” in a case. Law firms often have relationships with professional process servers on whom they can call; individuals who are representing themselves may have to exercise a bit more ingenuity. The legal requirements for New Mexico service of process are set out in NMRA 1-004, which also establishes a few different methods by which process may be served on a defendant.
Negotiating for a Settlement
Many parents of children who have suffered from prenatal injuries want to see the party they consider responsible held to account in court. Realistically, however, when the primary goal of a civil lawsuit is to recover compensation appropriate to cover the losses your family has experienced – and the anticipated losses your family may continue to experience, depending on the type of injury done to your child – it makes sense in most situations to at least attempt to negotiate a settlement. In the event that the responsible party is willing to make a fair offer out of court, in many cases it can save time, money, and stress to settle outside the courtroom, and devote your energy and attention to taking care of your growing child, instead of constantly waiting for the next court date.
Litigation
If you are unable to settle the case out of court, the next step is to move forward with litigation. Typically this stage will take you into the discovery process, during which both sides have an opportunity to request key documents and receive written answers to lists of submitted questions – but from this point on, the specifics of each step will depend very much on the circumstances of the particular case, so it may be a good idea to work with a legal professional who can offer guidance directly responsive to your situation.
Call a New Mexico Prenatal Injury Lawyer
If your child has suffered a prenatal injury, you are likely already struggling with grief and anxiety, concerned about caring for your child and covering his or her medical bills. The good news in this unfortunate situation is that in many cases it is possible to recover compensation to recover some or all of your losses related to the child’s prenatal injury. The statute of limitations can be tight, however, so you may wish to speak with an attorney as soon as possible to discuss your options. Call the understanding and compassionate Albuquerque legal team at Erin Marshall Law to set up a personalized consultation to discuss your needs. Reach us at 505-218-9949 today.
