With one-third of New Mexico counties offering limited medical resources to expectant mothers, and New Mexico’s Health Indicator Data & Statistics reporting that one in three mothers went without prenatal care in their first trimester in 2021, it is no wonder that the state has become known as a maternal care desert. While medical care, in general, has become challenging to find in many parts of the state, prenatal care is critical for both mother and baby and has dwindled to terrifyingly low numbers. When pregnant women can find the necessary care, it is often at an overwhelmed and understaffed facility, which may significantly reduce the quality of the care they receive. Making matters worse, there are only three hospitals throughout the entire state equipped to handle high-risk pregnancies and births, and for women who have low incomes or rely on state insurance for healthcare coverage, travel expenses to those hospitals often prohibit them from doing so. If you believe that your child suffered a birth injury as a result of someone else’s negligence, a birth injury lawyer with Erin Marshall Law may be able to review your case, go over your legal options, and assist you in pursuing any claims you may have. Call (505) 218-9949 for a confidential and compassionate consultation to learn more about birth injuries and your legal rights.
Common Causes of Birth Injuries
The National Library of Medicine indicates that birth injuries, or birth trauma, occur in 1.9 out of every 1,000 live births. While this may sound like a small number to someone who has not experienced it, it is a considerable number to the parents, siblings, and babies who have firsthand experience with being injured at birth.
There are several common causes of birth injuries. Awareness of these potential causes can help expectant mothers or their loved ones advocate for their care. Additionally, awareness may make it easier to prove medical malpractice if a birth injury occurs.
Failure to Diagnose and Treat Conditions
Pregnant women become accustomed to hearing, “That is normal during pregnancy,” when they express concerns about how they are feeling or what is happening with their bodies. Because first-time expectant mothers have never gone through pregnancy at all, and repeat mothers are reminded that every pregnancy is different, phrases like that condition women to ignore their own bodies and what they know about them. Unfortunately, this also can lead to a failure to diagnose and treat conditions.
When medical providers are overbooked and understaffed, they often rush through appointments. When a pregnant woman expresses concern about feeling dizzy or having a slight fever, she may be brushed off by the provider in a hurry to move on to the next patient. This can result in the provider not diagnosing or treating conditions such as gestational diabetes, infections, preeclampsia, or other maternal health conditions that frequently afflict pregnant women. When these and other conditions are not diagnosed and treated, they can lead to birth injuries. When women experience something that does not feel right to them, they should insist that the medical provider listen to them. They may also tell the provider that if the provider is unwilling to listen to please note in their file that the patient expressed concern regarding the symptom and the provider declined to listen. This may prompt a provider to slow down and hear the patient out.
Failure to Monitor Fetal Distress
During labor, babies can exhibit indications of fetal distress, such as an abnormal heart rate or decreased oxygen levels. When the mother is appropriately hooked up to a fetal monitor, these indications will appear on the monitor, allowing the medical provider to know when the baby is in distress. Depending on the exact indications, providers may simply monitor the indications to see what happens, or they may need to shift and change from a vaginal delivery to a caesarian section (C-section), or take other steps to protect both the mother’s and the baby’s health.
If the medical provider fails to put the mother on a fetal monitor, ignores the monitor, or does not take the appropriate actions in response to what the monitor indicates, birth injuries may result. While there are cases where the mother does not need a fetal monitor, such as low-risk pregnancies or in the early stages of labor, medical providers are expected to use these monitors when appropriate. Medical records from throughout the pregnancy may be used to determine if fetal monitoring would have been necessary or recommended.
Misuse of Delivery Instruments
In some deliveries, the use of vacuum extractors, forceps, or other delivery instruments is necessary. When appropriately used, these instruments facilitate the safe delivery of a healthy baby. When used improperly or unnecessarily, their use can cause brain trauma, skull fractures, or nerve damage. Examples of appropriate use might include if the mother is unable to push due to an underlying health condition, such as extremely high blood pressure, the baby is showing signs of fetal distress, or the mother is too exhausted to push the baby out effectively.
Improper or Delayed Delivery
Labor can take a long time, but medical providers are trained to recognize when labor is simply taking a long time versus when there is a problem that requires intervention such as performing a C-section or otherwise assisting and facilitating the delivery. If the provider fails to perform a C-section when it is necessary or they use unnecessary force to deliver the baby during a vaginal delivery, this improper or delayed delivery can cause birth injuries.
Medication Errors
Incorrectly administering or dosing of medication during labor and delivery can lead to birth injuries. This can include giving the mother medication to which she is allergic. These medication errors can have adverse effects for both mother and baby, in addition to causing a birth injury.
Lack of Informed Consent
Before performing medical procedures or interventions, medical providers should get informed consent from the parents. Informed consent means that the provider must explain the procedure, intervention, medication, or other treatment to the patient, including what the procedure or treatment is, how it will be done, and the risks and benefits associated with it. The patient then makes their decision based on their understanding of this information.
In an emergency, if the mother is unable to consent and waiting for someone else to provide consent would result in harm or death to the mother or the baby, providers may not need informed consent. However, in most circumstances, if there is no informed consent and the procedure or treatment results in a birth injury, this may be considered medical malpractice.
Negligent Postnatal Care
After the baby is born, they are typically carefully examined both immediately after the birth and several times in the next few hours. If the baby does not receive adequate postnatal care, providers may fail to identify and address complications the newborn is experiencing promptly enough. This can lead to missed opportunities for early interventions that may help or even worsen some conditions.
Inadequate Prenatal Care
Expectant mothers in New Mexico may struggle to find a provider for prenatal care, increasing the chances that something could go wrong. Upon finding a provider, these women trust that their provider will take appropriate care of them. Insufficient prenatal care can cause birth injuries, and when providers are seeing more patients than they can adequately handle, chances are that at least some of those patients will receive insufficient care. Inadequate prenatal care may include missing screenings, failing to address risk factors that can lead to birth injuries (particularly when proper medical attention would have prevented the birth injury), and failing to monitor maternal health adequately.
Serious Birth Injury Examples
Birth injuries can range from minor to major. Minor birth injuries might include bruising and small cuts. Minor birth injuries often do not result in lasting problems and resolve within a short time on their own. While parents are certainly justified in feeling upset if their newborn has suffered even a tiny cut or bruise, these types of birth injuries often do not result in lawsuits as the injury is short-term and heals on its own.
More serious birth injuries result in long-term issues that parents must deal with daily. These injuries may cause a parent to leave their job to provide full-time care to their child, purchase a new vehicle to accommodate wheelchairs or other assistance the child needs, perform home improvements to provide a safe environment for the child, and otherwise change their entire life in ways that the parent did not expect or want or can easily afford.
Facial Nerve Palsy
This condition is the temporary or permanent paralysis of the facial muscles. This condition typically occurs when pressure is put on the baby’s face during delivery. This can occur on one or both sides of the face. In the long term, paralysis can affect the baby’s ability to blink, eat, swallow, and communicate using facial expressions.
Cerebral Palsy
Brain damage or oxygen deprivation during the birth can lead to cerebral palsy (CP). This is a neurological disorder that can cause lifelong struggles with posture, muscle coordination, and movement. Over a lifetime, the baby may experience exaggerated reflexes, rigid or floppy limbs, tremors, stiff or weak muscles, and involuntary movements. There are three types of CP: spastic, dyskinetic, and mixed.
Erb’s Palsy
Erb’s palsy is also referred to as brachial plexus injury and is weakness or paralysis in the arm caused by damage to the nerves in the shoulder during difficult births. The condition may be caused by the baby’s position in the uterus, a C-section, or by stretching the baby’s neck during delivery. The baby may experience weakness, numbness, loss of feeling, and limited motion in the affected arm. While this is a serious birth injury, Shriners Hospitals for Children indicates that 70% to 80% of children will have a complete recovery within the first year of life if they begin treatment within four weeks of birth.
Intracranial Hemorrhage
An intracranial hemorrhage is bleeding inside the baby’s skull, typically caused by trauma during birth, such as oxygen deprivation or excessive force used on the baby’s head. This injury often leads to brain damage and other complications such as metabolic problems, seizures, apnea, and breathing problems. Early intervention is key to limiting the damage and providing treatment. Some babies with more minor hemorrhages will recover fully, but more severe hemorrhages may cause CP or intellectual or developmental disabilities.
Hypoxic-Ischemic Encephalopathy
Hypoxic-ischemic encephalopathy (HIE) occurs when the baby does not receive enough blood flow or oxygen to the brain during labor and delivery, often as a result of complications. HIE can occur before, during, or after birth. The range of HIE outcomes can be as mild as no long-term consequences to as moderate as severe disabilities such as neurological issues or developmental delays to as significant as death. Symptoms of this condition at birth can include blue or very pale skin, stained meconium, unusual movements, low reflexes, and seizures.
Spinal Cord Injuries
Spinal cord injuries are any injuries to the baby’s spinal cord during the birth process. They are often caused by improper manipulation or excessive force and may also be caused by arduous labor, breech presentations, or improper use of medical instruments. Depending on where the spinal cord is injured and how severely it is injured, symptoms can include breathing difficulties, inability to move certain limbs, loss of sensation in the extremities, abnormal reflexes, or bladder and bowel control issues.
Shoulder Dystocia
This birth injury usually occurs when the newborn’s shoulder becomes stuck behind the mother’s pubic bone during delivery. This is a medical emergency that requires immediate action. The baby may suffer nerve damage, fractures, hypoxia, and, in rare cases, brain damage. The mother may suffer damage to the bladder, rectum, and anal sphincter, third and fourth-degree perineal tears, or postpartum hemorrhage.
Perinatal Asphyxia
Perinatal asphyxia is also sometimes called birth asphyxia, and it occurs when the baby experiences an extended period of oxygen deprivation during labor or delivery. Perinatal asphyxia can cause severe complications, including brain damage such as vision and hearing impairments and learning disabilities, multi-organ failure, and early neonatal mortality. Some treatments may minimize the effects of asphyxia and may possibly prevent brain damage.
Elements Required to Prove Birth Injuries Are Medical Malpractice
Some birth injuries are the result of genetic conditions or other circumstances that are out of the mother’s and the healthcare provider’s control. Therefore, to prove that the birth injury is medical malpractice, four elements must be shown: duty of care, standard of care, breach of duty, and causation. If even one of these elements cannot be established, proving the injury is medical malpractice may not be possible. A knowledgeable birth injury attorney with Erin Marshall Law may be able to assist you in determining whether your case can prove all four elements.
Duty of Care
First, it must be shown that the provider owed the mother and her newborn a duty of care. Duty of care includes providing care and treatment that would be expected from any other provider in similar circumstances. The care and treatment that would be expected in similar circumstances is called the standard of care.
Standard of Care
The standard of care is the care and treatment that any competent and reasonable healthcare provider would provide in the same circumstances. Often, this element is proven by hiring expert witnesses, who are usually healthcare providers in the same role and can explain what would be expected under the specific circumstances the mother and her baby were in.
Breach of Duty
For this element, it must be proven that the provider breached the standard of care by acting in a reckless or negligent manner or otherwise deviating from the medical practices that would be acceptable under the circumstances. This may include the patient’s diagnosis (or a lack of diagnosis), their treatment or monitoring during the pregnancy or labor and delivery, or errors in surgical procedures. In particularly egregious cases, there may be multiple ways in which the provider breached the duty of care.
Causation
Finally, a direct link between the care the mother and her newborn baby received and the birth injuries must be established. This means proving that the provider’s actions, inactions, or other negligence were directly responsible for the birth injury or that they significantly contributed to the injury.
Damages You May Receive
Birth injuries can have an unforgettable impact on families. Even injuries that can resolve quickly and with little to no lasting symptoms can leave the family feeling traumatized and with unhappy, worrisome memories of their child’s first days and weeks of life. Those injuries that have lasting symptoms can have an even more devastating effect as the family often has to make many major shifts to accommodate the needs of their child. From quitting jobs in order to provide full-time care to renovating or buying a home that is better suited to the child’s needs, there are many tangible costs associated with a birth injury. Still, there are also many emotional costs as well.
Some of the damages a mother or family may be able to recover include:
- Medical expenses: Parents understand that pregnancy, labor, and delivery are expensive. Most plan to pay whatever portion their insurance does not cover or even the full amount if they do not have insurance. Birth injuries can incur many additional expenses the family did not plan on, and these expenses can be reimbursed if medical malpractice is proven.
- Ongoing healthcare: For birth injuries that require ongoing care, including lifelong care, families may be able to recover damages that cover these additional unplanned expenses. This includes hospitalizations, surgeries, medications, rehabilitation, assistive devices, therapy, and other expenses.
- Pain and suffering: Birth injuries can cause significant physical pain and suffering for babies who suffer them. Families can recover damages for this pain and suffering, for both existing pain and suffering and future pain and suffering that is anticipated.
- Loss of income: If one or even both parents must leave their jobs, reduce their hours, or otherwise lose income to provide care for their child, they can recover damages for the lost income.
- Loss of earning capacity: When a birth injury results in permanent or long-term disabilities that limit the child’s ability to work and earn a living, damages for the lost earning capacity may be awarded.
- Special education and care needs: For children who suffered birth injuries and require special therapies, adaptive equipment, special education, home modifications, or other specialized care, damages to cover these expenses may be awarded.
- Emotional distress: Parents expect the birth of their baby to be an occasion full of joy, love, and beautiful memories. Birth injuries instead give them an experience filled with anxiety, trauma, depression, and other psychological impacts. The family can be reimbursed for this emotional distress.
- Legal fees and costs: If the mother or family is successful with their lawsuit, the provider can be required to pay their reasonable legal fees and litigation costs associated with the lawsuit.
- Punitive damages: If the provider was extremely negligent or engaged in intentional misconduct, the family may be awarded punitive damages to punish and deter the provider from acting this way in the future.
- Other related expenses: If the mother or family incurs other related expenses, such as purchasing a van to hold a wheelchair the child needs, buying a new home, or adding improvements to the existing house that assist the child, they may be able to recover these damages as well.
How to File a Claim for Birth Injuries
When filing a claim for birth injuries, the patient is filing a medical malpractice claim. The New Mexico Medical Malpractice Act mandates that some medical malpractice claims must first be screened by the New Mexico Medical Review Commission to determine whether medical malpractice likely occurred. If an involved health care provider or facility is subject to screening, Commission findings can inform the patient and their attorney on how or if to proceed with a lawsuit. Consulting with an attorney at Erin Marshall Law can help you determine how to begin with filing your potential claim.
Gather Your and Your Baby’s Medical Records
The patient first must collect all the medical records for themselves and their child related to the pregnancy, labor, delivery, and postnatal care from all sources, including doctors, hospitals, midwives, etc. These records are essential to evaluating a medical malpractice claim and determining whether negligence occurred. Without these records, establishing a basis for the claim will be difficult if not impossible.
Investigate the Potential Malpractice
Most people will struggle to investigate their case independently, as it often requires consulting experts, reviewing the medical records, and evaluating whether the standard of care required during pregnancy, labor, and delivery was breached. Because of this difficulty, it is recommended that individuals considering a claim for birth injuries consult with an attorney. An attorney may be more familiar with New Mexico’s medical malpractice laws and the court system and have more resources to consult experts.
Document Damages
In addition to the medical records, this may be another essential component of filing a medical malpractice claim. Individuals must document the damages they have incurred due to the birth injury. This should include all medical expenses, lost income, ongoing medical expenses, and emotional distress. Individuals should maintain records of prescriptions, treatments, and other related expenses, as well as receipts for payments made toward those expenses.
File the Complaint
The next step is determining if any involved health care provider or entity is subject to screening by the NM Medical Review Commission. If so, the statute of limitations (deadline) for filing a claim in court is paused or tolled while the initial screening process is completed. If screening is required, after the Commission’s determination is made, the claim can be filed with the appropriate court. If Commission screening is not required, you may be able to file claims immediately with the court. This is done by filing a complaint with the appropriate court that outlines details of the birth injuries, alleges medical malpractice, and provides the amount of damages sought.
Serve the Defendant
The defendant or defendants must be served after filing either the Commission petition or the complaint with the appropriate court, whichever is filed first. Proper service is required to make the defendant aware of the lawsuit and allow them to respond to the claims. This is often done via a private process server. The defendant is given a specific period of time to respond before the case progresses.
Engage in the Discovery Process
The discovery process allows both sides to get additional information to build their case. During this phase, both parties will exchange information, gather evidence, and depose (question) witnesses. This is then used to support their arguments and attempt to prove whether or not the alleged medical malpractice occurred.
Mediation or Trial
The final phases are negotiation or trial, and in some cases, both. Mediation is the process of trying to agree to a settlement with the other party. If negotiation is successful in mediation, there is no need for a trial. If negotiation is not successful, the case will move to trial, where both parties will lay out their arguments, and a judge or jury will decide whether medical malpractice occurred and what damages are to be awarded.
Who Might Be Held Liable for Birth Injuries?
In pregnancy, labor, and delivery, many parties might be held liable for birth injuries. Healthcare providers such as doctors, midwives, obstetricians, nurses, anesthesiologists, and others may all be liable. Hospitals and medical facilities can also be liable.
Pharmaceutical companies can be liable for medication errors, defective drugs, or inadequate warnings about medication use during pregnancy or childbirth. A medical device manufacturer may be liable if a defect in forceps, vacuum extractors, monitoring equipment, or other devices fail to work correctly, break, or are otherwise defective. Third parties and, in some instances, government entities may also be held liable. An attorney may be able to help determine all potentially liable parties in a birth injuries case.
How a Birth Injury Attorney May Assist You
Whether it is your first baby or your tenth, the birth of your child should be an occasion of happiness and love. Trusting your healthcare providers should not even be a question in your mind. Unfortunately, for as many as a third of births, mothers are left with anxiety and fear, and babies are left with potentially lifelong and life-changing birth injuries due to a provider’s medical malpractice. If this has happened to you and your baby, an experienced New Mexico birth injury attorney may be able to assist you with gathering evidence, hiring experts, determining whether the birth injury is the result of malpractice, and fiercely protecting your and your baby’s rights. Call Erin Marshall Law at (505) 218-9949 for a confidential and compassionate consultation to learn more about your rights.
