How Do I Prove Medical Malpractice in a Birth Injury Lawsuit?

Determining negligence and standard of care in Maryland

By S.M. Oliva

Few scenarios are more frightening for new parents than something going wrong during the birth of their child. We trust doctors to exercise professional skill and good judgment during the birthing process. Unfortunately, doctors are still human and prone to mistakes. But when such mistakes deviate from the accepted medical standard of care, we are talking about malpractice, and the innocent child and their parents may be entitled to compensation under Maryland law.

“If there’s reason to believe something went wrong, there’s no reason not to reach out to a lawyer and find out if there’s a basis to proceed,” says Andrew E. Greenwald, a personal injury attorney at Joseph Greenwald & Laake in Greenbelt. “The case is basically to help provide the best possible future for the child.”

The Importance of Certificates of Merit

Proving medical malpractice comes down to two things: Establishing the doctor made a mistake, and showing that mistake caused your child's birth injury.

“You have to prove that the care was not within the accepted standards of medical practice—that is, what a reasonably competent practitioner would have done under the same or similar circumstances when faced with a patient in the condition of the plaintiff at that time,” Greenwald says.

A common example would be when a doctor decides to deliver a baby vaginally when a C-section was called for, and as a result the baby suffered a collarbone fracture. If the doctor had ample time and opportunity to ascertain the potential complications, the failure to perform the C-section would constitute malpractice.

Unlike many other personal injury scenarios, such as a car accident, establishing the elements of malpractice cannot be done without the assistance of expert testimony. The judge and/or jury need to hear from qualified professionals who can establish the baseline “standard of care” and explain how your healthcare provider deviated from it.

Maryland law requires all medical malpractice plaintiffs to file a “certificate of merit” within 90 days of bringing a lawsuit against a healthcare provider. This certificate is basically an affidavit signed by a medical expert qualified in the same field as the defendant. It sets forth the basic elements of the malpractice claim, including the applicable standard of care, how the defendant deviated from that standard, the specific injury to the child arising from that deviation, and what the defendant could have done differently to avoid or prevent that injury.

Each case is circumstantial, but the thing they all have in common is the exhaustive amount of research that goes into them. Greenwald seeks out every piece of paper associated with the pregnancy and birth: prenatal records, labor and delivery records, neonatal records, the baby’s chart, the fetal monitor strip, the results of any MRIs or spinal taps that may have been done, and even genetic records to determine if other factors may be involved.

“They take a lot of time,” says Greenwald, who has handled cases ranging from inappropriate use of an instrument to deliver the baby (e.g. forceps, vacuum extractors) to failure to recognize asphyxiation on the fetal strip. “You have to have expert testimony in the special areas that are involved and the medical area. You may need an obstetrician, a neonatology expert, a neuroradiologist, a pediatric intensivist—and that doesn’t include a damage expert and life care planner to determine what the child needs, or an economist to say what the cost will be. These cases are very expensive.”

Arbitration and Limits on Medical Malpractice Awards

Maryland law allows either side to waive arbitration. If you do opt for arbitration and lose, you can still file a lawsuit, but the arbitrators' decision—known as an award—will normally be considered accurate by the judge and jury. And if you lose a lawsuit following arbitration, you can be held liable for the defendant's legal fees and related costs.

Maryland also places strict caps on the amount of pain and suffering damages that a judge or jury can award in a medical malpractice case. For new malpractice claims arising from negligent acts, this cap is $800,000. If the child died as a result of the defendant's malpractice, the parents may seek up to $1 million in non-economic damages on a wrongful death claim.  “That cap does not affect the costs of taking care of the child,” Greenwald adds. “There’s no cap on the economic loss, only the pain and suffering.”

A qualified Maryland medical malpractice attorney can advise you on the potential value of your particular claim. 

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