Medical Malpractice & Birth Injury

Cases We Handle 

• Birth injuries
• Failure to obtain informed consent
• Radiation injuries
• Failing to Diagnose Infection
• Failing to Diagnose Life Threatening Condition
• Improper Discharge
• Missed Cancer
• Bed Sores/Ulcers
• Misread x-rays and ultrasounds
• Failure to listen to the patient
• Surgical errors, including anesthesia errors and postoperative negligence
• Performing unnecessary surgery or medical procedures
• Emergency room errors
• Dialysis errors
• OB/GYN negligence
• Pharmacy malpractice, including medication errors
• Plastic surgery malpractice
• Psychiatric malpractice
• Spinal cord injuries
• Defective medical devices
• Chiropractic negligence
• Dental malpractice

Medical malpractice occurs when a healthcare provider is negligent, causing serious and potentially long-lasting injuries or death. This can be caused by a surgical error, misdiagnosis, failing to properly evaluate, failing to timely and appropriately respond to a patient’s complaints, and more. Medical professionals aren’t perfect and mistakes happen. The fact that a doctor visit or surgery didn’t turn out as hoped doesn’t automatically mean it’s medical malpractice. While Medical professionals are not expected to provide perfect care, they have a duty to provide care that is reasonably acceptable. While a bad outcome alone does not always mean that medical negligence has occurred, if injuries or death could have been avoided with use of reasonable care it is most likely that medical malpractice has occurred.

Common Examples of Medical Malpractice

Some common examples of what is considered medical malpractice include the following:

Failing to Diagnose/Delay in Diagnosing

Another very common form of medical malpractice is when a doctor, nurse practitioner or physician assistant fails to make a proper diagnosis, makes the wrong diagnosis, or substantially delays diagnosing a condition which could have been diagnosed with use of reasonable care. This can happen in both an inpatient and outpatient setting. In both settings, healthcare providers are required to consider the verbal and physical complaints of their patients, and form a list of possible diagnoses which includes both the most likely explanation for their complaints and the most serious. Healthcare providers will then order a plan of care in order to confirm a diagnosis. Oftentimes, a patient’s verbal and/or physical complaints are overlooked or entirely ignored, resulting in both missed and delayed diagnoses. If a missed condition is a serious one, it could result in catastrophic injury and or death.

Failing to Obtain Informed Consent

Anyone who has been to a doctor or healthcare facility has signed a form giving the healthcare providers consent to provide treatment.  With that said, no patient ever consents to negligent medical care and treatment.   In the instance of informed consent, some patients have higher risks than others, and often there are alternatives for treatment that are safer or carry less risks.  A healthcare provider is obligated to discuss with you those additional factors which may put you at higher risk of complications as compared to someone else.  They are also obligated to discuss safer alternatives.   When those things are not discussed with a patient, even though the patient may sign a consent form, informed consent has not been given.  Even if the patient were to suffer a known and accepted complication, the healthcare provider may still be liable for failing to inform the patient that they were at higher risk of suffering that complication.

Improper Discharge

Sometimes healthcare providers determine that a particular disease or condition is not appropriate for assessment and evaluation in a hospital or in-patient setting.  This can be a decision made by an Emergency Room physician who does not recommend a patient for admission, from an admitting physician who declines to admit a patient, or from an attending physician who determines that a patient is appropriate for discharge.   In any of the scenarios, a major and potentially life-threatening condition may be overlooked and may have dire consequences.     

Improper Treatment

If a doctor attempts to treat a patient for a specific condition but uses improper means that no other reasonable doctor would’ve used, this might be medical malpractice. In this case, the doctor has properly diagnosed the patient, but failed to provide the appropriate treatment.

Failure to Diagnose/Delay in Diagnosing 

Another very common form of medical malpractice is when a surgeon either fails to diagnose a patient properly, or there’s a major delay in the patient’s diagnosis that never should’ve taken place. This means the patient doesn’t get the treatment they need as soon as possible, which can cause their condition to worsen and create substantial injuries down the road.

Failure to Warn

Doctors and surgeons sometimes fail to warn patients of known risks associated with a treatment or surgery. When this happens, and the patient suffers one of these risks, there’s a good chance of a successful medical malpractice claim. This obligation is generally referred to as informed consent, and it should be provided anytime a doctor treats a patient.  

Proving Medical Malpractice

In order to prove medical malpractice, a number of elements must be proven.

Duty of Care

The first factor that needs to be proven in a medical malpractice claim is that the medical professional owed the patient a duty of care. This duty of care is shown by providing evidence that a doctor-patient relationship existed. This means your client agreed to hire a doctor, and the doctor agreed to be hired. If your client saw a doctor in their office for an appointment or had imaging or surgery with a particular medical professional, this will almost certainly satisfy this element of the claim. If, on the other hand, your client was just speaking with someone at a party who happens to be a doctor, this most likely won’t create a doctor-patient relationship, even if they gave your client a little bit of medical advice.  The duty to provide safe and reasonable care involves all licensed medical professionals including doctors, nurses, nurse practitioners, physician assistants, certified nursing assistants, and medical technicians.

Breach

Next, it must be shown that the medical professional breached the standard duty of care that they owe to all of their patients. Medical malpractice is by definition a breach of professional prevailing standard of care.  The exact wording varies depending on which state your client is located in, but generally a doctor or nurse must provide care that is reasonable and competent under similar or like circumstances.  In nearly every state, qualified medical professionals, sometimes referred to as medical or nursing experts, will determine if such a breach in the standard of care occurred.  Evidence of a breach in the standard of care requires the testimony of medical and nursing experts, and is oftentimes in heated debate – which is why a medical malpractice case is often billed as a “Battle of the Experts.”

Causation

While each state treats the issue of causation differently, generally an injured patient must prove that the negligent conduct of the healthcare providers (the breach in the standard of care) was a cause or substantially contributing factor to the patient’s injuries or death.  This is often the most complex element of medical malpractice as some injuries can be caused by negligence, but can also occur when the standard of care is met.  Furthermore, oftentimes multiple factors contribute to the same injuries and/or death, and the law most often places the burden of proving what caused injury and/or death on the patient.  

For example, if a person suffering a stroke presents to a healthcare facility for care and treatment, and assessment and/or treatment is delayed causing the person to die, an analysis will be required to determine if timely and appropriate intervention could have prevented the patient’s death.  If it is determined that earlier intervention was required by the standard of care, and that earlier intervention would have most likely prevented the death, the causation element of proof will likely be deemed satisfied.  However, if it is determined that earlier intervention would not have prevented the death, even though it was required by the standard of care, the element of causation will likely not be satisfied and the case could face dismissal.

Due to the complexities, this is another element which is heavily addressed by qualified medical experts.  Most states have laws which allow for compensation for medical malpractice even if your client has other factors which contributed to the injuries and/or death such as age or pre-existing disease.  

Damages

The final element of a medical practice case is damages, which includes physical injuries and/or death.  This is linked to causation, as the law in most states holds that medical malpractice is only actionable if it results in injuries and/or death.  A good rule of thumb is that if your client has no injuries, there’s no actionable medical malpractice case.  It is not enough to prove that a healthcare provider was negligent, a patient and/or patient’s family must prove that the negligence resulted in injuries.   In addition to physical injuries, the element of Damages also includes both economic and non-economic losses.  From an economic standpoint, an injured patient may be able to recover compensation for past medical expenses, the cost of future medical expenses resulting from the negligence, loss of wages, and loss of future earning capacity.  If a patient dies leaving behind a surviving spouse and/or children, the family may be able to recover economic damages due to loss of financial support, loss of household services, net accumulations of the Estate, and money for funeral expenses.  In addition to economic damages, the victims of medical negligence may also be entitled to compensation for non-economic damages, also known as “human damages,” which includes mental pain and suffering, mental anguish, loss of enjoyment of life, permanent scarring, inconvenience, and diminished life expectancy. 

Whom To Sue in a Medical Malpractice Case

Most victims assume that only doctors can be held liable for medical malpractice. However, any licensed medical practitioner could be held to account for medical malpractice, including physicians, surgeons, nurses, nurse practitioners, physician assistants, mid-level providers, certified nursing assistants, sonographers, phlebotomists, respiratory therapists, and/or physician therapists.  In many instances, a hospital, surgery center and/or healthcare facility can also be held accountable for medical malpractice if the negligent providers are their employees or agents, or if the facility is found to have direct negligence such as failing to have appropriate policies and procedures in place.  

Depending on your client’s case, a victim of medical malpractice can sue:

Doctors and Surgeons

Doctors are ultimately responsible for the medical care of a patient. For example, if a doctor fails to provide an accurate diagnosis or neglects to order diagnostic tests, they could be responsible for your damages. In some cases, a doctor could also be responsible for the actions of medical staff working under their direction.

Radiologists

Patients rely on radiologists’ interpretation of diagnostic imaging tests such as MRIs. Therefore, if a patient is harmed due to a radiologist misinterpreting tests or failing to communicate results, a radiologist could be held liable for medical malpractice.  Radiology cases can involve radiologist missing a findings on a study, failing to report adverse findings on the transcribed report, or even failing to timely communicate the results of a critical study.

Nurses

Nurses typically have the most contact with a patient, especially in a hospital or care home setting. They are often the eyes and ears of the physicians.  In addition, nurses are empowered to make nursing recommendations and requests to attending doctors, and in a hospital setting, can even invoke their chain of command to question a doctor’s actions or inactions.  Serious harm can result when a nurse fails to abide by the standard of care including administration of an improper medication, failing to monitor vital signs, failing to report significant changes in a patient’s condition, or failing to properly communicate with the attending physicians.  

Hospitals and Other Medical Care Centers

Victims can potentially hold hospitals, surgery centers, urgent care centers, rehabilitation facilities, and other medical establishments to account for a medical malpractice injury. Clinics are required to hire competent and qualified staff, and are often required to have appropriate policies and procedures in place.  If an injury was caused by negligent hiring, credentialing or retaining incompetent physicians, nurses or medical staff, or unsanitary or unsafe conditions, a hospital could be held to account. 

Dentists

If your client got hurt due to bad dentistry, they could sue a dentist for compensation. Examples of medical malpractice in dentistry include, among others:

• Treating the wrong tooth 
• Failing to diagnose cancer, gum disease or another condition
• Infections due to poor hygiene
• Performing unnecessary dental work
• Permanent injury to nerves during dental procedures
• Other Parties

Several other parties could be liable for a medical malpractice injury. In some cases, a victim could have a case against several defendants such as a surgeon, anesthetist and hospital. Since it can be tricky to know who your client could sue, consulting with a medical malpractice lawyer from our firm can provide clarity about their options.

Time Limit for Filing a Medical Malpractice Case

If your client potentially has a medical malpractice case, they should seek legal advice as soon as possible. Medical malpractice cases are generally subject to a time limit, called the statute of limitations, which varies from one state to another. The time to file a suit can be as short as one year, depending on where your client intends to file. 

The Medical Malpractice Lawsuit Process

Investigate Your Client’s Case

Nearly every single state requires a thorough and extensive investigation of a potential medical malpractice claim prior to moving forward with legal action.  That investigation begins with a victim or their family contacting our office to provide facts and details.  A Morgan & Morgan medical malpractice attorney will then review the facts of your case along with medical and nursing consultants, which may include ordering and review of the applicable medical records.  Finally, the matter will be reviewed by qualified medical and nursing experts who will determine if there were breaches of the standard of care which resulted in injury or death.  

File a Lawsuit

Some states have a pre-suit “waiting period” in which you have to put the potential wrongdoers on notice, and then allow time for them to investigate the claim before filing a lawsuit.  Oftentimes the potential parties will discuss possible resolution of the claims without the need for litigation.  However, given the complexities of these matters, most of them end up requiring litigation which commences with the filing of a lawsuit on the victim’s behalf.  Once a lawsuit has been filed and served, the responsible healthcare providers, hospitals and/or facilities will respond to the lawsuit typically with a denial of all allegations.  From that point on, the parties will engage in discovery including deposition of the parties, eye-witnesses, treating physicians, therapists, family members, or anyone who may have knowledge of the case.

Review Settlement Offers

Many medical malpractice lawsuits settle before going to trial. If your client receives any settlement offers, your Morgan & Morgan attorney will help determine if it provides adequate compensation for your client’s injuries. If not, our attorneys may negotiate on your client’s behalf for a larger settlement offer. As part of the negotiation process, our attorneys may present evidence and expert reports regarding the full extent of your client’s injuries.  

Litigation and Trial

If the negotiations do not produce an adequate settlement offer, our medical malpractice lawyers will prepare your client’s case for trial.  While we always try to obtain a fair and reasonable settlement, we have little to no control over what the other side will offer.   Even where liability is strong, the rise of consent insurance policies and expected delay/deny tactics often sees these matters requiring trial.  Should your client’s case fail to settle, we will work diligently to have the matter set for trial, and will prepare to present the case to the jury along with qualified medical and nursing experts.  

Medical Malpractice Lawsuit Compensations

Through a medical malpractice lawsuit, your client may be able to recover compensation for the following types of damages:

Medical Expenses: your client may be eligible to recover compensation for past and future medical bills, as well as rehabilitation expenses.

Lost wages: If your client was unable to go to work because of their injuries, they may be able to recover a financial award for lost wages. In addition, if their ability to perform their job duties have been diminished, they may be able to receive compensation for their reduced earning capacity.

Pain and suffering: Medical malpractice often inflicts significant pain and suffering on the injured party. While no amount of money can fully compensate a victim for the amount of pain that he or she has experienced, our medical malpractice attorneys will work hard to get the compensation that is deserved.

Punitive damages: In cases involving particularly reckless conduct, a medical malpractice victim may be able to receive punitive damages in addition to the ones described above. Punitive damages are intended to punish the offender and discourage other healthcare professionals from engaging in similarly risky behavior.

Wrongful Death Damages: In cases where a patient dies as a result of medical malpractice, the family may be entitled to damages under the state’s wrongful death act including loss of financial support and loss of household services.

Importance of Engaging a Medical Malpractice Attorney

Medical malpractice cases involve complex legal and medical issues and can be challenging and time-consuming to litigate. Moreover, most if not all medical malpractice lawsuits require expert witnesses. The very nature of medical malpractice cases sees many personal injury attorneys and firms refraining from practicing in that particular area of injury law.  Furthermore, vast resources are often required to compete with deep-pocketed hospitals and insurance companies who often spare little expense in the defense of these claims.  A specialized medical malpractice attorney can handle your client’s case and knows where to find the relevant medical experts that can testify on their behalf.  

Victims of medical malpractice can also underestimate the complexity of the technical procedures for filing a medical malpractice case. Missing a deadline or making a mistake on an important court document could get your client’s case thrown out. Our motivated and experienced medical malpractice lawyers can work tirelessly for the best possible outcome of your client’s medical malpractice case. We can: 

• Determine whether your client’s case is worth pursuing 
• Help your client navigate the legal system 
• Identify all liable parties
• File the paperwork required for your client’s case
• Liaise with your client’s medical providers 
• Gather the necessary evidence to prove your client’s case
• Obtain medical expert witnesses to testify in your client’s case
• Negotiate a fair settlement on your client’s behalf
• Present your client’s case aggressively at trial

 

Birth Injury

When a doctor’s negligence causes a newborn to suffer a birth injury, the victim’s life is affected profoundly and for years to come. Medical procedures, special schooling and services, and a variety of other needs can create a financial and emotional strain. With decades of experience, our lawyers see families through the difficulty of fighting for compensation to cover the bills and emotional toll.

 

Cases We Handle

• Cerebral Palsy 
• Brachial Plexus Palsy, including Erb’s Palsy and Klumpke’s Palsy 
• Stillbirth
• Brain Damage Hemorrhaging 
• Paralysis
• Hypoxic Ischemic Encephalopathy (HIE)
• Cord Prolapse or Rupture
• Hip Dysplasia
• Birth Trauma
• Spinal Cord Damage Wrongful Death

At Morgan & Morgan, our attorneys realize that birth injuries not only have physical and emotional consequences but also place a financial strain on the child’s family. When a birth injury is caused by the negligence of a doctor or another healthcare provider, the family may be able to recover compensation for these costs through a birth injury lawsuit. 

Our birth injury lawyers have seen families struggle with the costs of providing physical therapy, special schooling, and other care needed for their children. Hospitalization for birth defects alone costs the U.S. over $2.6 billion annually, according to the Centers for Disease Control. 

With more than 20 years of experience handling birth injury claims, our personal injury lawyers can examine your client’s unique situation carefully and deduce whether your client’s doctor took proper care during delivery and the amount of damages that may be owed for your client’s losses. Was your client’s child harmed at birth? If so, our birth injury lawyers at Morgan & Morgan may be able to file a claim against the medical professional who delivered your client’s child. 

When an infant suffers a birth injury, the child's parents may be able to file a medical malpractice lawsuit against the doctor or medical professional(s) who delivered the baby. To have a valid claim, negligence must have led directly to the birth injury. Medical negligence occurs when a healthcare professional’s performance falls below the standard of care expected in the medical community. Our birth injury attorneys have extensive experience in handling these types of lawsuits and can determine whether your client’s child was injured due to medical malpractice. 

Birth injuries that are the result of medical negligence may be caused by:

Improper Forceps Use: When a mother is having difficulty delivering her child or if the infant is improperly positioned in the womb, the attending physician may use forceps to help the child along. Proper use of forceps could reduce the child’s risk of oxygen deprivation and fetal distress, conditions that have been linked to cerebral palsy and other birth injuries. However, doctors have to be extremely careful, as forceps can cause nerve damage in the child’s neck or chest, and other, less severe injuries to the head.

Improper Vacuum Use: When the mother is having difficulties expelling the fetus from the birth canal, a vacuum may be needed to assist her. Vacuums can be latched onto a baby’s shoulder or head and guide the child through the birth canal. Doctors and nurses are responsible for properly placing the vacuum on the infant. When the vacuum is improperly used, severe injuries to both the mother and newborn can result.

Failing to Order a Caesarian Section Resulting in a Hypoxic Brain Injury: Babies are designed to withstand the trauma and low oxygen environment of labor and delivery. Regardless of that, the healthcare providers have a duty to timely and appropriately respond to indications that the baby may be in distress, or may not be tolerating the stresses of labor. This can be due to a maternal condition such an elevated blood pressure or infection, or this could be because the baby’s umbilical cord is being compressed during labor, which acts to cut off the flow of oxygenated blood to the baby. Medical practitioners are trained to detect hypoxia well in advance and to take steps to eliminate the chance of harm to either the mother or child. If the doctor fails to notice the hypoxic event and to take quick, necessary action to avoid injury, they may be liable for any resulting damages. If hypoxia is not quickly addressed, it can result in severe damage to the baby’s brain. This is often referred to as a Hypoxic Brain Injury or Hypoxic Ischemic Encephalopathy, and often sees children develop with severe and catastrophic injuries and disabilities. Very often, in cases of fetal intolerance to labor the standard of care requires converting to delivery to a Caesarian Section. If a Caesarian Section would have prevented the injuries, the case is very likely actionable.

Delay in Ordering or Performing of a Caesarian Section: There are instances where the providers timely identify that the baby is in distress or not tolerating the labor, but then fail to timely order or perform a Caesarian Section. It could be that the doctor did not order the Caesarian Section to be Emergent, or that the nursing/surgical team unreasonably delayed the start of the procedure. In those instances, a doctor, nurse or hospital may be held liable for the delay, if it is shown that earlier C-Section would have avoided all or some of the injury.

Shoulder Dystocia/Brachial Plexus injuries: A shoulder dystocia occurs when a baby’s head spontaneously delivers, but then the shoulders do not deliver because one or both are stuck on a part of the mother’s anatomy. In most cases, it is the baby’s top shoulder stuck behind the mother’s pubic bone. The standard of care in this situation requires the physician or midwife to call additional nursing personnel to the room, and to use a specific set of maneuvers to gently effectuate delivery of the baby. Unfortunately, when a shoulder dystocia occurs, the delivering providers sometimes panic and use excessive traction and force in attempting to relieve the impaction. This can result in a devastating injury to the baby known as a Brachial Plexus Injury, and could see the baby grow to have a non-functional arm despite extensive surgeries and therapy. There are risk factors which put a baby at higher risk of encountering a shoulder dystocia such as estimated fetal weight, maternal body habitus, and use of a vacuum. If your client has such risks, and they were not discussed prior to initiating an attempt at vaginal delivery, there could also be a claim for failing to obtain informed consent.  

Birth injuries may also stem from the following, which may indicate medical negligence: 

• Failing to properly use the labor-inducing drug Pitocin.
• Failing to timely and appropriately treat maternal preeclampsia or high blood pressure.
• Neglecting to perform specialized tests during pregnancy.
• Failing to recognize risk factors of a shoulder dystocia.
• Failure of the nurses to advocate for patient to under C-Section.
• Failing to recommend, order and/or perform a C-Section.
• Improperly assessing estimated fetal weight.
• Failing to properly manage a shoulder dystocia.
• Failing to diagnose or treat infections, placental abruption or previa, umbilical cord entrapment, or premature rupture of the membranes.
• Neglecting to refer high-risk patients to doctors specialized in this area.
• Failing to note and address changes in the fetus’ condition.
• Failing to perform sufficient prenatal testing.
• Neglecting to communicate problems to doctors.

Determining if Your Client’s Child Was Injured due to Medical Malpractice

Because birth injuries can be caused by a number of different and often unavoidable factors, it is important to contact an attorney specializing in this area of law. At Morgan & Morgan, our birth injury lawyers can examine your client’s medical records including diagnostic tests, electronic fetal monitor strips, operative notes, labor and delivery flow sheets, and additional records related to the pregnancy and delivery. Our attorneys will also work alongside medical and nursing experts when reviewing this information to determine whether medical malpractice partially or completely caused injury to your client’s baby. If the expert believes that the doctor failed to meet the standard of care when delivering your client’s child, a birth injury lawsuit may be viable.

Examples of Damages Available in a Birth Injury Claim

When a child suffers a severe birth injury as a result of medical negligence, the family may be entitled to monetary damages. Damages provide compensation for losses suffered as a result of the medical provider’s negligence. Compensation can cover both monetary losses and intangible losses such as a decreased quality of life. Damages for the following may be available in a birth injury lawsuit:

• Past and future medical expenses
• Additional healthcare costs (e.g., occupational therapy, counseling, in-home care, special vehicles or equipment, home modifications)
• Lost wages
• Pain and suffering (baby)
• Pain and suffering (parents)
• Loss of society and companionship (in cases of wrongful death)
• Loss of life’s enjoyment 

The Importance of Hiring a Birth Injury Attorney Specialist

Due to the complexity of birth injury lawsuits, it is important to hire a skilled medical malpractice attorney. Morgan & Morgan’s attorneys have a history of success in representing the parents of children who suffered birth injuries. While damages will vary between cases, our birth injury attorneys have recovered multimillion-dollar verdicts and settlements, including a $5.8 million recovery for a family whose newborn suffered a brain injury resulting from obstetrical negligence. Our lawyers realize that raising a child with a birth injury can be expensive, and we seek to lessen your client’s financial burden by holding the negligent party accountable for their irresponsible behavior. Because the statute of limitations in some states allows parents only a specific window of time to take legal action, we recommend you do not wait to contact our birth injury lawyers today.