Legal Articles, Accident & Injury

Birth Injuries/Defects and Medical Negligence By Hon. James M. McGing (ret.) According to the National Institute of Health (NIH), the National Vital Statistics Report defines birth injury as "an impairment of the neonate's body function or structure due to an adverse event that occurred at birth." These injuries include a wide range of minor to major injuries due to various mechanical forces during labor and delivery. Birth injuries are different from birth defects or malformations and are often easily distinguishable from congenital defects by a focused clinical assessment. The risk factors associated with birth trauma can be grouped into those related to the fetus, pregnancy, mother, or iatrogenic factors (use of instrumentation during delivery) according to the NIH. The injuries can include head trauma, hemorrhages, skull fractures, nerve and spinal injuries, just to name a few. These injuries can be the result of medical negligence for a variety of reasons including misuse of medical tools and devices and failure to monitor the mother and baby before, during and after delivery, and can cause permanent injuries to a newborn or a mother. Birth defects on the other hand, occur during pregnancy, especially in the early stages. Although, many are often unavoidable, there are many situations where a birth defect is avoidable. One example is when a medication causes a birth defect, a doctor can be found negligent for prescribing the medication if they knew the risks and a drug manufacturer may also be held liable. Many genetic disorders or defects are treatable during pregnancy (in utero). If a treating physician does not properly diagnose a treatable condition, that failure to diagnose can be considered medical negligence. An Obstetrician (OB) or an OB-GYN, a physician qualified in Obstetrics and Gynecology is the physician in charge of care during pre-conception, pregnancy, childbirth, and immediately after delivery. These doctors review medical information including charts, lab tests, in-office examinations, risk factors and ultrasounds and make decisions accordingly. A birth defect can result if a crucial bit of information is missed by them with catastrophic injuries or even death. According to the NIH, some medications are associated with known birth defects while other defects can be caused by failure to assess, recognize certain risks and take action during situations such as when a baby is too large for the birth canal, a drop in heart rate or an umbilical cord impeding the baby. Doctors must recognize these and other risk factors and take the appropriate steps in accordance with the recognized medical standard of care. When they don’t, they can be held liable. Hon. James M. McGing (ret.) Former Supervising Judge, Law Division Miller McGing Law (773) 467-8000

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