Medical Malpractice Questions Birth Injuries Questions

Q: What is medical malpractice?

When negligence is committed by a professional health care provider, for example a physician, nurse, dentist, technician, or hospital employee, whose treatment of a patient departs from the customary care of those with similar training and experience, resulting in injury to a patient.

Q: Does a patient who is unsatisfied with the outcome of his or her surgery have a malpractice case?

A: Generally, medical outcomes are not guaranteed, and bad outcomes do not necessarily mean negligence occurred. A successful medical malpractice case shows the plaintiff's injury or harm was caused by the health care provider's deviation from the customary practices applicable to the procedure or treatment.

Q: What should I do if a think I have a medical malpractice claim?

A: You should talk to a lawyer who specializes in such cases, as soon as possible. Tell the attorney exactly what happened, from your first visit to the doctor or other health care provider, through your last contact with him or her. If possible, obtain your medical records and bring them to your first meeting with the attorney. There are time limits governing how long someone may bring a medical malpractice claim, so time is of the essence.

Q: How does "informed consent" work?

A: A doctor must 1) inform a patient of all the potential benefits, risks and alternatives involved in any surgical procedure, medical procedure or other course of treatment, and 2) obtain the patient's written consent to proceed.

Q: Do I have a medical malpractice case against a doctor who failed to tell me a drug he or she prescribed was part of an experimental program?

A: A doctor has a duty to inform you that a drug is part of an experimental program, and you have the right to refuse to participate in the experiment. Whether there is a cause of action depends on the doctor's failure to obtain your "informed consent" about the treatment in question.

Q: Do I have a medical malpractice claim if the consent form I signed before my procedure is considered valid?

A: Yes. Negligence liability cannot by waived by obtaining "informed consent." If the following can be established, 1) your physician deviated from the applicable medical custom in performing the procedure, and 2) the deviation caused your injury, you may still recover against the physician. Additionally, if the doctor performed a procedure that went beyond the consent you gave, you may have a claim for battery.

Q: What does the jury consider when determining if a physician's actions were negligent?

A: A jury will consider the opinion of other physicians within the same specialty as your physician who will state whether they think your doctor's actions were customary within that specialty or below the customary care within that specialty.

Q: What is a "Certificate of Merit?"

A: One obstacle plaintiffs in many states may have to overcome before they can even file a malpractice action against a health care professional is the requirement that they file what is commonly known as a "certificate of merit." In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff's health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff's action has merit.

Frequently Asked Questions about Birth Injuries

Q: What's the difference between a birth defect and a birth injury?

A: Birth injuries are generally caused by something that went wrong during child delivery itself, while birth defects usually involve harm to a baby that arose prior to birth, due to something that happened during or before the pregnancy.

Q: What kinds of situations give rise to a lawsuit for birth defects (or injuries)?

A: Most of these cases occur when a doctor fails to adequately assess or respond to conditions and complications during a woman's pregnancy or delivery, or when a woman takes a prescription drug during pregnancy that causes harm to the baby.

Q: Will a lawsuit always be successful if a baby is harmed through a birth defect (or injury)?

A: No. Some birth defects (or injuries) are unavoidable. The key question is whether medical providers and/or a pharmaceutical company failed to give you or your baby adequate medical care or medication advice during pregnancy and/or delivery.

Q: What is medical malpractice?

A: Medical malpractice is negligence committed by a professional health care provider--a doctor, nurse, dentist, technician, hospital or hospital worker--whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients. The profession itself sets the standard for malpractice by its own custom and practice.

Q: How common are birth injuries?

A: It has been estimated that, for every 1000 babies born in the U.S., five will be injured during birth.

Q: In a lawsuit for birth defect (or injury), how does a jury determine if a doctor's actions were within the standards of good medical practice?

A: A jury will consider testimony by experts--usually other doctors, who will testify whether they believe your physician's actions followed standard medical practice or fell below the accepted standard of care. A specialist, like an obstetrician, is held to a higher standard of care--that of a specialist--than would be expected of a non-specialist.

Q: I've heard about "teratogens" causing birth defects. What are they?

A: A teratogen is a chemical or agent that causes birth defects in a child. A number of drugs have been found to be teratogens, and many of these were initially meant to aid a woman's pregnancy. These include Delalutin, a drug administered to pregnant women for the prevention of miscarriages, and Bendectin, a medication given to pregnant women, to fight nausea.

Q: How common are birth defects?

A: Estimates are that 7% of all babies are born with a birth defect or irregularity, from very minor to severe.

Q: As a birth defect (or injury), what is cerebral palsy?

A: Cerebral palsy is the generic term for a number of disorders affecting a baby's brain function and body movement. Cerebral palsy can be the result of an injury to a baby's brain in the womb, during delivery, or some time after birth. It can also be caused by a lack of oxygen flow to a baby's during delivery.

Q: Who will receive money after a successful lawsuit for a birth defect (or injury)?

A: If a living child suffers harm due to an avoidable birth defect (or injury), damages awarded as part of a successful lawsuit will typically go to the child, sometimes in the form of a trust. Parents can receive compensation for emotional distress damages in some situations.