Giving birth to a child should be a joyous occasion for the mother. Unfortunately, many mothers are scarred by the memory of a doctor or nurse making a preventable mistake and the baby suffering a permanent injury as a result. Some birth injuries can be physical in nature, such as a shoulder dystocia. Others can affect the child’s brain, like a hypoxia. If this situation arises, you should strongly consider speaking to a medical malpractice injury attorney who has handled birth injury cases to see what legal options are available to you.
A birth-related neurological injury means an injury was inflicted on the child’s brain or spinal cord that was caused by the deprivation of oxygen or mechanical injury occurring in the course of labor. Such an injury can leave the infant permanently disabled, developmentally disabled, or cognitively disabled, according to Va. Code Ann. § 38.2-5001.
An important distinction must be made between injuries inflicted during a live birth, as opposed to a disability or death caused by genetic or congenital abnormality (e.g., dwarfism), degenerative neurological disease, or material substance abuse (i.e. drug abuse by mother).
A live birth injury applies to any child born on or after January 1, 1988, who suffered an injury to the brain or spinal cord caused by the derivation of oxygen or mechanical injury occurring in the course of labor in a hospital, according to Va. Code Ann. § 38.2-5001.
A birth injury medical malpractice claim can be pursued by the parents of an infant injured during a live birth. In addition, the mother could bring a medical malpractice claim herself for the injuries she sustained because of the malpractice committed by the hospital during the live birth.
If there is a case in which both the infant and the mother have both been injured due to malpractice (which is common), bringing one claim does not bar the other from being brought simultaneously, under Virginia law (i.e. Va. Code Ann. § 38.2-5002).
This distinction is important because of the Virginia Birth-Related Neurological Injury Compensation Program in which some physicians and hospitals may be enrolled in. Being enrolled in this program can shield an enrolled hospital or physician from a birth-related medical malpractice claim. If you are not enrolled, your right to make a birth injury medical malpractice claim is protected, in most cases, according to Va. Code Ann. § 38.2-5002.