Childbirth Malpractice

[JuliaPauline08]

What is the name of your state (only U.S. law)? Washington state


I delivered my daughter in February of 2011. I was in active labor 34 hours. Pushing for 7 1/2. About 3 hours in to that 7 1/2, I could feel my daughters head get stuck. It was stuck in a transverse position. I was begging for a c section but one was not ordered until the on call OB (I had a midwife) came in and checked me. He was furious with the midwife!

She had a severe cone head and now that she is abou to start preschool I am worried she may have some brain damage from childbirth. If I can prove that this brain damage is from childbirth, what would I need to take this matter to court and sue the hospital? The midwives are a branch of that hospital.

 

[cbg]

Has a medical professional diagnosed any brain damage? Is she developmentally delayed?

 

[Proserpina]

What is the name of your state (only U.S. law)? Washington state


I delivered my daughter in February of 2011. I was in active labor 34 hours. Pushing for 7 1/2. About 3 hours in to that 7 1/2, I could feel my daughters head get stuck. It was stuck in a transverse position. I was begging for a c section but one was not ordered until the on call OB (I had a midwife) came in and checked me. He was furious with the midwife!

She had a severe cone head and now that she is abou to start preschool I am worried she may have some brain damage from childbirth. If I can prove that this brain damage is from childbirth, what would I need to take this matter to court and sue the hospital? The midwives are a branch of that hospital.

I'm going to be as gentle as I can, okay?

But I have a question first. It's very close to cbg's question, but a little different. Do your daughter's records make note of any complications? Oxygen deprivation?

This is going to be tricky because we can't guess as to the matter of whether or not risks already present, before the birth.

 

[ecmst12]

Her head shape should have recovered within days of being born, why haven't you addressed it with her doctors before now?

If she did have brain damage, it's likely that you would have noticed delayed milestones before now.

 

[Ladyback1]

statute of limitations for medical malpractice in Washington is 3 years (Wash. Rev. Code �� 4.16.350)

That being said: if you can prove that you did not know or suspect brain damage/developmental delays were the result of the malpractice--you MIGHT have a very, very, very slim chance in pursuing a lawsuit. And it would be a very slim chance.

Furthermore: should you think you have a chance of pursuing, you will need to consider if any sort of delays/brain damage could be from other things that have absolutely NO relation to the birthing incident. (Is this child's father, the Ex with the alleged drug problem? If so....you don't have a snowball's chance in Hades of winning a lawsuit). Also, any sort of developmental delays or brain damage should have been evident before now. If you are just now noticing it? Did you not pay attention to the first 3 years of your child's life?

I guess my point is this: Why, now, do you believe that whatever (if any) issues your child has is directly related to her birth? Could a medical professional state within a degree of medical certainty that the birth is the major contributing cause (at least 51%) of your daughter's medical and/or psychological diagnosis/diagnoses?

But, again, all of that is most likely a moot point since the SOL has passed...

 

[Proserpina]

statute of limitations for medical malpractice in Washington is 3 years (Wash. Rev. Code �� 4.16.350)

Not so fast...

That being said: if you can prove that you did not know or suspect brain damage/developmental delays were the result of the malpractice--you MIGHT have a very, very, very slim chance in pursuing a lawsuit. And it would be a very slim chance.

Furthermore: should you think you have a chance of pursuing, you will need to consider if any sort of delays/brain damage could be from other things that have absolutely NO relation to the birthing incident. (Is this child's father, the Ex with the alleged drug problem? If so....you don't have a snowball's chance in Hades of winning a lawsuit). Also, any sort of developmental delays or brain damage should have been evident before now. If you are just now noticing it? Did you not pay attention to the first 3 years of your child's life?

I guess my point is this: Why, now, do you believe that whatever (if any) issues your child has is directly related to her birth? Could a medical professional state within a degree of medical certainty that the birth is the major contributing cause (at least 51%) of your daughter's medical and/or psychological diagnosis/diagnoses?

But, again, all of that is most likely a moot point since the SOL has passed...

Don't forget this is a minor - the SOL doesn't work the same way; it's tolled until the minor reaches 18. That's why I didn't raise the issue.

(This pretty much ties in to most of the other states, too)


The Supreme Court has spoken:

This past week, the Washington Supreme Court ruled that yet another aspect of Washington’s recent medical malpractice reform laws is unconstitutional. In the case of Schroeder v. Weighall, the Court on Thursday ruled that minors who are plaintiffs in medical negligence cases are entitled to “toll” the statute of limitations applicable to their claim (a sort of “time out” from the statute of limitations), until they reach the age of majority. At issue in the case was a special provision of Washington law which held that minors with medical malpractice claims were not entitled to tolling during their childhood. This law meant that a child with a claim for medical negligence had to bring the case within the ordinary statute of limitations, even though he or she was not an adult. Minors with any other type of tort claim were entitled to toll the statute of limitations until they became adults, however. No more.

As the Court explained, the challenged provision (RCW 4.16.190(2)) violated the state constitution’s “privileges and immunities” clause, because it treated minors with medical negligence claims different than minors with other types of claims. The stated reason for treating these two classes of plaintiffs differently was not plausible or constitutionally permissible, according to a majority of the Court’s justices.

(http://www.ettermcmahon.com/news/legal-news/a-minors-claim-alleging-medical-malpractice-now-tolled/ is much easier to read)

 

[Ladyback1]

Not so fast...




Don't forget this is a minor - the SOL doesn't work the same way; it's tolled until the minor reaches 18. That's why I didn't raise the issue.

(This pretty much ties in to most of the other states, too)


The Supreme Court has spoken:



(http://www.ettermcmahon.com/news/legal-news/a-minors-claim-alleging-medical-malpractice-now-tolled/ is much easier to read)

ummm...yeah, I did forget that this was a minor.

SOL not withstanding--OP still faces an uphill battle. PLUS, she doesn't even have any sort of professional stating that there is anything wrong with the child. Unless/until OP actually has something a little more concrete, then she most likely will lose any lawsuit. Most juries/judges don't award monetary damages on "I am worried she may have some brain damage from childbirth".