Massachusetts Birth Injuries on the Rise

The health care industry is coming under increasing fire for the high number of birth injuries that occur each year in the United States.

Physicians with specialities in obstetrics or pediatrics account for nearly half of all medical malpractice claims. Specialists in orthopedics, emergency medicine and family medicine are also among the most common defendants in birth injury claims. birthinjury11-300x199

Victims are most commonly neonate (less than 1 month old), although claims are fairly evenly split among neonates, infants in their first year, adolescents and teenagers. Contrary to popular belief, the hospital is not the most common site of alleged malpractice, except for neonate claims, 60 percent of which involved labor or delivery. Otherwise, the most common treatment location in cases where malpractice is alleged is a physician’s office or clinic.

Our Boston birth injury attorney reported last year on the high risk of maternal death during childbirth in the United States. An investigation by the USA Today Network found more than 50,000 mothers are injured and more than 700 die while giving birth in the United States each year.

Birth Injury Claims: Risk and Liability

Medical malpractice claims involving children fall into the following categories:

  • Neonate Injuries: Nearly half of these claims involved brain injury. Injury to the arms was the second-leading cause.
  • Infant Injuries: Brain injury account for about one-third of all claims, followed by lung or respiratory injuries, and heart injuries.
  • Adolescent Injuries: Brain injury, lung and respirator injuries and eye injuries are the leading causes, although injuries to older children are much more diverse; these three causes account for only about 30 percent of medical malpractice claims involving this age group.
  • Teenager Injuries: Brain, teeth, and joint injuries were the most common medical malpractice claims involving older children.

Nationwide, about 75 percent of claims were filed within three years of injury. Massachusetts statute of limitations for medical malpractice claims is three years and can be found in M.G.L. Ch. 260 Sec. 4 and M.G.L. Ch. 231 Sec. 60D. In cases involving children, a medical malpractice claim must also be filed with three years. However, the Discovery Rule, permits victims to file claims beyond the deadline in cases involving delayed discovery of injury or malpractice. Under Massachusetts law, cases involving minors must be filed within three years from date parent’s had knowledge or sufficient notice that defendant’s medical care may have resulted in injured. Children under age of 6 years old have until the 9th birthday, regardless of date of injury.

The statute of repose puts an absolute deadline of seven years on most Massachusetts medical malpractice claims, regardless of date of discovery. The only exception is for medical malpractice claims involving foreign objects left in the human body.

Medical malpractice claims in general, and birth injuries in particular, are among the most costly and legally and medically complex claims a Massachusetts law firm can handle. Finding a law firm with the experience and resources to prevail against some of the nation’s largest insurance companies and legal defense firms is essential to making a successful demand for damages. Our birth injury lawyers in Boston will carefully review your case, and consult with leading medical experts, to determine the full extent of your damages and to identify all of the parties responsible.

M. G.L c. 231, § 60H puts a cap of $500,000 on medical malpractice awards when it comes to pain and suffering, loss of companionship and other general damages. Exceptions exist for cases involving substantial disfigurement or where such limits would otherwise deprive plaintiff of just compensation. Damage caps for some non-profit or government owned healthcare facilities may be capped at $100,000, while damages against a charitable organization are capped at just $20,000. Unfortunately, most Massachusetts hospitals are either municipally owned or are run by charities.

A landmark case, Dylan Keene Vs. Brigham Women’s Hospital, reduced a $4.1 damage award against Brigham and Women’s Hospital to just $20,000. The couple sued Brigham after neonatal care left their child blind and quadriplegic.

But it’s important to note that no damage caps exist for individual employees of non-profit hospitals (such caps do exist for employees of public hospitals). But the Keenes could not sue individuals because Brigham claimed to have lost all of the child’s medical records for the critical treatment period after he contracted neonatal sepsis and meningitis. The hospital appealed the initial award, and the Massachusetts Supreme Judicial Court agreed, saying the hospital was protected by the state’s cap on damages paid by charitable organizations, which reduced the Keenes award to just $20,000.

Justice Roderick Ireland dissented from the majority, arguing that “the charitable immunity cap is doing a disservice to the public by allowing substandard treatment practices to be rewarded by virtue of a corporate status.” Today, nearly all of New England’s most renowned hospitals are operated as “charitable institutions.”

Your chosen medical malpractice law firm must be prepared to argue your case at time of filing, not at some future, undetermined day in court. Massachusetts medical malpractice claims first go before a three-person tribunal (including a lawyer and a medical doctor), where they must prove sufficient evidence of malpractice before being allowed to proceed to a claim in court.

Birth Injury Medical Malpractice Claims in Boston

Proving a medical malpractice claim involving birth injuries requires significant review of medical records by experts in the field.

Common causes of Massachusetts birth injury claims:

  • Cerebral Palsy: A brain injury involving muscle control, more than 10,000 cases of cerebral palsy are diagnosed each year in the United States, an increase of more than 25 percent in the last decade.
  • Erbs Palsy: Damage to the Brachial Plexus nerves in the shoulder, resulting in weakness and loss of function in the arms. Most common results from excessive pulling during child birth.
  • Pre-Eclampsia/Eclampsia: This terrifying, life-threatening medical condition can effect any expectant mother and can result in death of mother or infant, and/or premature birth and other serious medical complications. Late diagnosis or failure to diagnose most commonly results in a life-threatening medical crisis.
  • C-section injuries: The number of c-sections has skyrocketed in the United States. While c-sections can be necessary and life-saving medical procedures, they are also among the riskiest child births.

Giving birth is not without risks. But the United States has among the highest rates of infant and mother mortality of any developed nation in the world. If you are dealing with a birth injury, availing yourself of the opportunity for a free and confidential consultation with a leading Massachusetts law firm is among the best things you can do to protect the rights and financial well-being of you and your family.

If you have suffered personal injury in Massachusetts, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.

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