Birth Injuries Covered by FTCA

For many families, an unexpected birth injury can turn what should be a joyous time into one of enormous stress, worry, and grief. It can forever change the lives of everyone in the family. For military families, the likelihood of a birth injury is even higher than in the general population — twice as likely, to be exact.

The emotional toll of these injuries can be debilitating and overwhelming – and the financial burden can be catastrophic. For example, the Centers for Disease Control (CDC) estimates that the cost of raising a child with cerebral palsy (one potential result of a birth injury) is 10-26 times the cost of raising a child without this condition. Given this reality, the parents of a child who has suffered a birth injury often have no choice but to seek compensation in order to protect their child’s future.

Families injured in military or federal hospitals or clinics can seek damages under the Federal Tort Claims Act or the Military Medical Accountability Act. The Doctor Lawyer Team, with its deep understanding of both the medical side (birth injuries) and the legal side (the complex federal statutory framework), can help military families find the solutions to assist them in what is inevitably the most challenging time in their lives.

Common Types of Birth Injuries

Birth injuries are distinct from birth defects. The latter is a health condition that forms while the infant is in the womb, often in the first trimester, and is commonly rooted in genetics. A birth injury, on the other hand, occurs during labor or shortly thereafter and is frequently the product of medical malpractice. These are some of the more common birth injuries:

• Cerebral Palsy (CP) is a loss of motor functions and other lifetime disabilities caused by brain damage during or shortly after birth. Severe cerebral palsy also may involve partial or total paralysis and profound lifetime disability. Cerebral palsy is often caused by a failure to monitor the umbilical cord or placenta.
• Brachial Plexus Injury (Erb’s Palsy) is damage to the brachial plexus nerve, which runs from the neck and down the arms. An injury of this nerve may result in loss of function and paralysis. This type of injury is often caused by the use of excessive force during delivery. With Erb’s Palsy, only the upper arm is affected, and it is frequently associated with errors made during a particularly long or stressful birth. Other brachial plexus injuries include caput succedaneum, shoulder dystocia, forceps delivery injury, and vacuum extraction injury.
• Hypoxic Ischemic Encephalopathy (HIE) is an injury that occurs when the infant does not get enough oxygen and blood during birth. HIE is often caused by a failure to adequately treat gestational diabetes, preeclampsia, or other umbilical cord problems. HIE may lead to cerebral palsy, epilepsy, or other delays in development.
• Spinal Cord Injuries involve reduced sensation and immobility, often resulting from a doctor’s failure to detect and diagnose conditions such as spina bifida. Injuries to the spinal column are also caused by misuse of birth-assisting tools, such as forceps.
• Cephalohematoma results from a pooling of blood and a rupture of blood vessels between the skin and skull. Infants with this condition may have seizures and other issues with the skull and head.
• Subconjunctival Hemorrhage occurs when blood vessels below the eyes rupture during birth. If not managed properly, the resulting hemorrhage can lead to blindness or seizures.
• Bone Fractures may occur during births, especially the clavicle or collar bone, and complicated births may result in broken arms or legs or shoulder dystocia.

Causes of Birth Injuries

The causes of birth injuries vary, but many happen because of medical negligence. Medical negligence results from healthcare providers failing to make sound decisions regarding care or outright neglect. The outcome, often, is harm to the infant or mother. It is more common in military hospitals, likely because care providers at these facilities are often less experienced than their civilian counterparts.

Instances of medical negligence leading to birth injuries include:

• Failing to recognize birth complications, such as a twisted umbilical cord, in time to prevent injury.
• Not adequately addressing fetal distress or a lack of oxygen during delivery.
• A failure to take steps to stop bleeding or hemorrhaging by the mother.
• Neglecting to recognize and treat gestational diabetes.
• Misuse of medical equipment, such as forceps or vacuums.
• Failing to properly treat an infection in the mother.

If the medical negligence of a care provider causes a birth injury, the parents may be able to make a claim or file a lawsuit.

Birth Injury Claims Under FTCA

Parents of an infant who suffers a birth injury in a military or federal hospital can seek financial damages under the Federal Tort Claims Act (FTCA), codified at 28 U.S.C. §1346(b), §1402(b), §2401(b), and §2671-2680. This law allows injured victims to sue U.S. government agencies, including the Department of Defense, for medical negligence resulting in birth injuries. These types of claims are exceedingly complex and require counsel in birth injury litigation and the Federal Tort Claims Act.

Making a birth injury claim against a military hospital begins with Standard Form 95, where the claimants must list the maximum value of their claims. In our experience, parents tend to significantly undervalue future losses without effective assistance of counsel. For example, where an infant has suffered an HIE injury and severe brain damage, future medical costs will be catastrophic. The child will need medical care, medication, and caregivers for the remainder of their life as they struggle with a disability that is likely to prevent earning a living. Arriving at a dollar figure for these types of losses is challenging. The costs associated with lifetime care are often in the millions – and the cases are frequently valued in the tens of millions. They are difficult in every respect imaginable.

Pursuing or litigating a birth injury case nearly always involves multiple experts. A birth injury claim may be either for medical malpractice or, in the most tragic of cases, for wrongful death.

• Medical Malpractice: In cases where a medical provider fails to deliver the standard of care that a reasonably skilled provider would, it is considered medical malpractice. Medical malpractice claims can result from negligence or errors in care. To successfully file a medical malpractice claim for birth injury, a plaintiff must demonstrate a direct link between the negligence and the injury sustained by the infant or the mother.
• Wrongful Death: If an infant is stillborn or if the infant or mother dies as a result of a preventable mistake by a doctor or nurse, the family may seek damages for wrongful death. Just as in a medical malpractice case, the plaintiff must show that the medical care provider made an error that led to the death.

How the Doctor Lawyer Team Can Help

The Doctor Lawyer Team has years of experience working cases involving military matters. Dr. Giordano is a board-certified neurosurgeon, attorney, and retired Navy Captain. Trial attorney Paul McConnell is a retired Colonel from the Marine Corps and former federal prosecutor. If you need to file a claim under the FTCA or the Military Medical Accountability Act, we can help. Use our online contact form or call us at (833) DLT-WINS / (833) 358-9467 for a free case evaluation.