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Expectant parents often say, “All we want is a healthy baby.” After all, isn’t that what it’s all about? But birth is the first time that a mother cannot protect her child or see what others are doing to them. A healthy baby can be injured by the carelessness of doctors, nurses, or midwives, sometimes for life.
Unfortunately, Texas law does not exactly put mothers and infants first. Medical malpractice laws can protect doctors rather than patients, and these claims are more likely to go to trial than other personal injury claims. But when you understand your baby’s condition and your family’s rights, a personal injury attorney can help you get the resolution you need.
Birth Injuries: What They Can Mean
Birth injuries, also known as birth traumas, happen more frequently in the US than many people realize. According to recent birth statistics, common birth traumas for infants include:
- Fractures
- Facial nerve injuries, occurring in “up to 10 per 1,000 live births,” often from forceps use
- Intracranial hemorrhages—bleeding inside the head, more likely to occur in vacuum-assisted deliveries or those involving forceps
- Brachial plexus injuries, damaging the nerves of the shoulder, arm, and hand
- Soft tissue injuries, including cuts to the infant, which may occur during C-sections
Minor birth injuries can heal relatively quickly. However, some can cause long-term or permanent disorders. There are several types of palsy—a weakness or paralysis of the nerves—that birth injuries can cause:
- Facial nerve palsy
- Erb’s palsy, affecting the arm and shoulder
- Klumpke’s palsy, affecting the hand and forearm
- Cerebral palsy, affecting the brain, which may come with epilepsy and intellectual disabilities
If a child is deprived of oxygen during the birth process, they may experience HIE (hypoxic ischemic encephalopathy), which can also trigger cerebral palsy, developmental delays, heart disorders, and other life-altering conditions.
Some of these, even HIE, may respond well to treatment. But who will pay for that treatment? And how long will it take? What if the child needs care or assistance for the rest of their life?
Malpractice Laws in Texas: What You Need to Know
Statutes of Limitations and Repose
Your child has at best 10 years to make a claim for their damages, counted from the day of the birth or the day that their negligent treatment was finished (if those were not on the same day). It may also be possible to count from the day that a hidden injury was detected. Minors under 12 technically have a right to file a medical malpractice claim until they are 14, but malpractice claims also have a 10-year limitation across the board.
If you, as the mother, were also injured during or because of the birth, you have two years from the date that your treatment was finished to bring your claim—unless you yourself were a minor under 12.
In any case, discussing your situation with an attorney as soon as possible is crucial. The statute of limitations can be a key issue, and the stakes are high.
Your Child’s Rights
Your child has the right to recover their economic damages, or special damages, without any legal limit on their claim. These damages can include:
- Medical expenses (bills for past and future care)
- Personal care expenses for the child
- Disability accommodations
- Loss of future earnings if the disability is permanent
As a practical matter, this damage award is usually limited by the insurance coverage of the doctors or healthcare institutions involved. Additionally, Texas law limits non-economic damages, which includes compensation for pain and suffering, to $250,000 per claimant, although this may increase if there are multiple defendants.
A child’s parent or other trusted family member can act as a “next friend” in the courts and make legal claims on their behalf. A settlement on a minor’s behalf must be approved by a judge, with safeguards to ensure that the money can only be paid to or for the child.
How to Protect Yourself and Your Child
Some disorders caused by birth injuries may not be apparent for the first few months of a child’s life. If you think your older infant or toddler may have suffered a birth injury, watch carefully for certain symptoms, including:
- Apparent problems with sight or hearing
- Tremors or weakness
- Stiffness (hypertonia)
- Slow or difficult speech progress
- Poor coordination, including difficulties using utensils
- Difficulty or inability to sit, stand, crawl, or walk
- Developmental delays or disorders
- Intellectual disabilities
Consult a pediatrician and explain the circumstances. These may be symptoms of cerebral palsy or another disorder caused during the birthing process.
Collect all your baby’s medical documentation. Collect your own medical records as well, including your prenatal care records and any other notes, bills, or receipts about your medical care while you were pregnant. Your attorney will need to see these.
The hospital’s defense attorneys are likely to use any missteps (claimed or genuine) in your prenatal care against you, as well as any preexisting conditions. Certain factors, such as maternal condition and the size of infants, are associated with an increased rate of birth injuries. It is important to exclude or account for these effects.
Finally, contact an experienced Texas birth injury attorney as soon as possible; it’s best to do so before you make any claims or give any statements. At Pelaez Law Firm, the Crash Angels can provide you and your family with strong, compassionate representation, shielding you from the pressures of the legal process. Contact our San Antonio office at 210-801-9314 to schedule a free consultation.
