A birth injury is an impairment caused by an “adverse event” during birth. It’s important to differentiate birth injuries from birth defects, which are usually caused by genetics or changes that happen early in the pregnancy.
In most cases, birth defects are unavoidable, but birth injuries are frequently caused by a doctor’s error during the birth. If your baby suffered a birth injury, you may be wondering whether the doctor who handled the delivery is at fault.
Could your child’s injury have been prevented? Did your doctor make a mistake that could have lifelong consequences for your child? How will you provide the additional care your baby needs?
In addition to being plagued with questions, you might also have financial concerns. Many birth injuries require long-term treatment and assistance so the child can get all the help they need.
Your baby might benefit from physical or speech therapy, mobility devices, visits with specialists, and other care that your insurance may or may not cover. How can you ensure they receive the best care possible?
A New Mexico Birth Injury Attorney May Be Able to Help
If your child has suffered a birth injury, we recommend speaking with a New Mexico personal injury lawyer who can review the circumstances of the birth injury. Should we find evidence that your doctor was negligent, leading to the injury, we can pursue compensation for your child’s medical costs and pain and suffering.
We’ll discuss damages in more detail later in this article.
Please contact Olson Personal Injury Lawyers for a free consultation about your birth injury concerns. We’ll answer your questions and discuss your options for recovering damages, and you have no obligation.
If you want to move forward with our help, we won’t charge any fees until we win or settle your case, so you never need to worry about upfront expenses.
What Are the Causes of Birth Injury?
There are multiple ways a birth injury can happen, but here are several of the most common causes and the reasons behind them:
Oxygen Deprivation
When the baby is deprived of oxygen for even short periods of time during delivery, brain damage can occur. Hypoxic-ischemic encephalopathy, or HIE, is a condition that often results from oxygen deprivation or asphyxia during birth.
It occurs because some of the brain cells die from lack of oxygen, which can cause later issues with brain development.
Oxygen deprivation injuries are not always immediately apparent. The baby may develop normally at first but fail to reach typical milestones on time as they age.
If you’re concerned that your child’s development is not on track, it’s important to discuss these milestones with their doctor and ask for additional testing if needed.
Children with HIE may develop Cerebral Palsy, a type of birth injury that causes difficulty with movement or coordination. Symptoms, including poor muscle tone or developmental delays with milestones like rolling over or sitting up, may not appear right away.
Depending on the type and severity of the brain damage, some babies may begin to show signs in the first few months of life, while others may not be diagnosed until they are two years or older.
Periventricular Leukomalacia, or PVL, is a type of HIE that causes the death of white matter in the brain. Like Cerebral Palsy, it can affect motor functions but may also lead to difficulties with learning and other functions.
There are many scenarios that result in oxygen deprivation during birth. Prolonged labor, a prolapsed umbilical cord, difficult labor, and abnormal fetal position (such as a breech position) can all contribute to a lack of oxygen during delivery.
None of these issues are the physician’s fault, but it is an OB’s job to recognize and manage risks. In many cases, performing a cesarean delivery or other interventions can reduce the risk to the baby.
If your doctor failed to act quickly to protect the baby’s oxygen supply during a complicated delivery, it’s possible their negligence caused or contributed to the birth injury.
Trauma During Delivery
Sometimes, the baby suffers an injury due to physical force or pressure during the delivery. This can happen in a number of ways and is more likely to affect premature infants due to their smaller size.
In some cases, the pressure of going through the birth canal causes bruising, bleeding, or bursting blood vessels in the eyes. Using vacuum extraction or forceps to aid in the delivery can increase the risk, but these injuries are often minor and don’t cause long-term damage.
But birth trauma can also be more serious, especially if the delivery is complicated or the doctor makes an error while using tools like forceps. If the doctor uses too much force or maneuvers the tools incorrectly, they could cause brain bleeding or other injuries.
Shoulder dystocia, or difficulty delivering the baby’s shoulder, is another common cause of birth trauma. Occasionally, the baby’s arm is positioned at an angle that makes delivery difficult—essentially, the shoulder could become stuck, halting progress.
Frequently, the doctor will attempt to reposition the arm or shoulder so the delivery can continue.
Sometimes, this leads to Brachial Palsy or damage to the nerves that control the arm and hand. When this occurs, doctors must recognize the problem early so they can prescribe exercises to maintain range of motion while the nerves heal.
In some situations, the nerves aren’t just injured but torn, and the child could suffer permanent disability in the affected arm.
Facial paralysis is another pressure-induced injury affecting the baby’s facial nerve. This condition is usually visible immediately, as only one side of the baby’s face will move when they cry (The infant may also be unable to close the eye on the affected side of their face).
When these signs are present, doctors should act quickly to determine the extent of the damage—some milder facial injuries will heal on their own, but others require surgery to prevent permanent damage.
Fractures occurring at birth are most common in the clavicle or collarbone. Like Brachial Palsy, a fractured collarbone often results from an unusual fetal arm position.
Failure to Diagnose Conditions That May Complicate Delivery
In some cases, a doctor may fail to run appropriate tests or take a pregnant patient’s symptoms seriously, and diagnosis of potentially severe complications is delayed. If the doctor fails to diagnose and treat a complication promptly, this may increase the risk of early or complicated labor, which in turn heightens the likelihood of birth injuries.
Lack of proper monitoring after birth may also cause or worsen a birth injury in some situations. Even minor issues can become severe if a healthcare provider isn’t carefully observing the baby.
For instance, jaundice is common in newborns, and most cases resolve on their own, causing no permanent damage. Many babies have bleeding or bruising from ruptured blood vessels on the skull, called a cephalohematoma, due to birth trauma.
Usually, this type of injury isn’t severe on its own, but it can cause jaundice due to the blood being reabsorbed over time.
The jaundice may also be harmless in many situations. However, in rare cases, jaundice leads to high levels of bilirubin, resulting in Kernicterus or neurological damage.
As a result, the physician should watch the child carefully for signs of jaundice and perform tests to measure bilirubin levels if it appears. If your doctor failed to monitor your child’s jaundice and they later suffered brain damage from Kernicterus, the physician may have been negligent.
Maternal Injuries and Medical Malpractice
Failing to monitor the patient can also lead to maternal injuries, most commonly caused by hemorrhaging or hypertension. High blood pressure in pregnancy, or preeclampsia, can be dangerous, and your doctor has a responsibility to monitor you for the signs—high blood pressure, swelling in the face or hands, and protein in the urine.
When this condition is diagnosed early, physicians may intervene by recommending bedrest, monitoring the patient in a hospital, or prescribing medication to reduce blood pressure or prevent seizures. But if your doctor allows this condition to go untreated, you could suffer severe and sometimes permanent consequences, including organ damage or stroke.
Another possible maternal injury might occur if the patient has a cesarean delivery and the doctor leaves a surgical tool or instrument inside the body. Sometimes, the patient struggles with pain and other symptoms for months or even years before finding out about the error.
In this situation, it’s important to contact an attorney as soon as you obtain a diagnosis.
Other maternal injuries include organ prolapse or damage, severe tearing, broken pelvis, PTSD from a traumatic birth, and brain damage from hemorrhaging. These injuries are not always preventable, but if your doctor fails to intervene to prevent further complications, they may be at fault.
An experienced birth injury lawyer can help determine if you have grounds to seek compensation for your injuries.
When Should You Consult a New Mexico Birth Injury Attorney?
New Mexico typically allows three years to file a medical malpractice claim from the date of the injury, but there are some exceptions for injured minors. In most cases, a medical malpractice lawsuit can be filed for up to one year after the child turns 18. However, birth injury claims must be filed by the time the child turns nine years old, or sooner, depending on when the child is diagnosed.
However, a lawsuit can take time, and your attorney will need to investigate the facts and gather evidence. If you suspect your child has delays or other signs of a birth injury, please seek medical care for them right away and discuss your concerns about the birth with an attorney as soon as possible.
What Damages Can You Seek in a Birth Injury Lawsuit?
Many economic and non-economic damages may accompany a birth injury. Your attorney will discuss each of them in detail so they can calculate how much your total claim should be.
Here are some damages you might have:
Medical Expenses
In the case of a birth injury, these can go well beyond the bills from the birth itself. You or your child may need extended care, including a possible stay in the NICU if your baby suffered a severe injury.
In other cases, the child may not be diagnosed until later and may then require various therapies to help them regain lost functions. Even pursuing a diagnosis can involve multiple costly tests and appointments with specialists.
Some birth injuries result in permanent disabilities, and in severe cases, the child may need lifelong care. Others will need mobility devices that must be replaced periodically and are often expensive.
Children with Cerebral Palsy, for example, often benefit from orthotics meant to help them walk or move around. These might include walkers, braces, foot orthotics, standers, gait trainers, or specialized wheelchairs.
While these devices can wear out with use, they may also need to be replaced simply because the child outgrew them. Meanwhile, health insurance doesn’t always cover these devices or might not cover them in full.
Lost Income
Although babies don’t typically have income, lost income can still be relevant in several ways:
- In the case of severe, permanent disabilities, the child may be unable to work or earn income as an adult. If so, the settlement should include damages to compensate for this loss and allow funding for the child’s care later in life.
- Sometimes, a child with a birth injury requires specialized medical care that a standard daycare or nanny can’t provide. A properly trained caregiver is often challenging to find and costs significantly more than typical childcare costs. As a result, one parent may have to quit their job and be a stay-at-home parent, reducing the family’s income.
If we identify either of these situations, we’ll work to recover damages to replace the lost income.
Additional Education or Childcare Costs
Some parents find that the special education program at their child’s public school does not adequately support the child’s needs. Although special education teachers work hard to help each student, they may have multiple children who need assistance each day alongside limited time and resources.
When this occurs, parents may want to hire tutors, place the child in a school that caters specifically to their needs, or find other ways to supplement the student’s education. Unfortunately, this can add to the family’s educational costs, and some parents simply can’t afford it.
As discussed in the previous section, childcare costs often increase for children with significant disabilities or health issues. Hiring a caregiver who is trained to handle complex medical needs, even for one day, can be prohibitively expensive for many families.
Your attorney will work to ensure you receive enough compensation to address educational and childcare costs related to the birth injury.
Disability or Loss of Bodily Functions
If your child has suffered a permanent physical or mental disability, they are entitled to compensation for this loss. Examples might include blindness, paraplegia, quadriplegia, intellectual disabilities, speech difficulties, and more.
What Are the First Steps of a New Mexico Birth Injury Lawsuit?
Your attorney will review your case and may investigate to gather more information. We recommend collecting copies of your medical records prior to your consultation so we have a good place to start.
Most medical offices now offer online patient portals that allow patients to view and print their records as needed, but if yours doesn’t, you can request your records from the administrative staff. You do not need to explain why you need them and shouldn’t mention if you think the doctor made a mistake.
If we find evidence of medical negligence, we’ll work to gather as much information as possible. We might review additional records, examine your medical bills, seek opinions from expert witnesses (usually physicians), and more.
When we’re ready to proceed, we’ll file an “application for review” with the New Mexico Medical Review Commission (NMMRC). The state of New Mexico requires this step before beginning a malpractice case so the Commission can review the situation.
In this application, we’ll lay out the details of your case, including the providers’ names, the dates of your and your child’s treatment, and the actions (or failure to act) that we believe meet the legal criteria for medical malpractice. The application should also include your consent for the Commission to review your medical records in relation to this matter.
The NMMRC will then assemble a panel to review the claim, typically within 60 days. This panel is usually composed of several doctors in the same field as the provider you plan to sue and an attorney.
They will study the available information and work to determine:
- Is there “substantial evidence” of medical malpractice in this case?
- Is there a “reasonable medical probability” that this malpractice injured the patient?
After the panel makes a decision, it will be shared with all parties. If your application is approved, the panel’s report can’t be used in your lawsuit.
However, a positive finding suggests you have a strong claim and a reasonably good chance of successfully recovering damages. As a result, the review process helps to prevent injured patients from spending time and money on a lawsuit when they don’t have sufficient evidence to proceed.
How Does New Mexico’s Patient Compensation Fund Work?
It’s somewhat easier to recover damages in a medical malpractice case in New Mexico than in many other states, largely due to the Patient Compensation Fund. This fund is supported by an annual surcharge that every physician in the state must pay.
When a medical malpractice case is resolved through settlement or a court ruling in favor of the plaintiff, the fund covers the bulk of the awarded damages. However, the physician involved in the lawsuit is responsible for the first $200,000 (usually paid by their malpractice insurance), and any amount beyond that is covered by the Patient Compensation Fund.
In some cases, this arrangement means that the defendant (the physician) is less likely to engage in prolonged legal battles to avoid liability, knowing that the Patient Compensation Fund will cover most of the damages if they lose the case. However, there are other reasons a doctor might want to fight a malpractice claim, such as keeping their malpractice insurance rates down and defending their reputation.
Regardless, your attorney will always fight for a fair settlement for you and your child.
Will Your Case Go to Court?
It’s always possible that a lawsuit will culminate in a trial, and we prepare as if we’re going to court, but in most cases, we settle out of court. This process can still take many months, as the malpractice insurance company often makes several lowball offers before finally agreeing to a fair settlement.
We’ll negotiate to ensure you receive a reasonable amount to cover your child’s damages.
How Can You Learn More From a New Mexico Birth Injury Law Firm?
If you believe that you or your child suffered a birth injury due to a healthcare provider’s negligence, Olson Personal Injury Lawyers is always available for a free consultation about your case. You can reach out to us anytime to learn more about your options for recovering damages.
We’ll explore the possibilities, answer your questions, and fight for your rights if you wish to proceed with a lawsuit. If we decide to represent you, there are no upfront fees—you won’t pay us anything until we achieve a successful outcome.
About Attorney Sean Olson
Attorney Sean Olson founded Olson Personal Injury Lawyers in 2012 to advocate for the rights of injured people and their families. Inspired by his childhood soccer coach’s advice to “build others up,” Mr. Olson has stayed true to this principle throughout his career.
His primary mission is to defend those harmed by others’ negligence. He makes a point to meet with each client personally and is never too busy to provide them with updates on a case.
Originally starting his career as a photojournalist, Mr. Olson’s passion for storytelling led him to pursue a law degree at the University of Denver’s Sturm College of Law, where he graduated in the top one percent of his class. He now dedicates his efforts to telling the stories of seriously injured clients nationwide.
Outside of his professional work, he enjoys spending time outdoors with his wife, children, and pets. You can work with Sean and his team of experts when you call (505) 391-4149.