Birth Injury Compensation Claims

Birth injuries are a complex type of medical malpractice.  And while anything going wrong during pregnancy, labor or delivery can raise concerns about the quality of care you have received, not every poor medical outcome is the result of malpractice.  So how do you find out more about birth injury compensation claims?

The only way to know for sure if you have a birth injury compensation claim is to have a birth injury lawyer thoroughly review your situation.  This includes reviewing medical records, interviewing witnesses and reviewing the standards of care for your situation.  A skilled birth injury lawyer will know what to look for in determining if your situation constitutes medical negligence.  Your attorney will seek to establish:

• Did you have a doctor-patient relationship with the person you believe harmed your baby?
• Was the healthcare provider negligent in some way? Did they do something wrong or fail to meet the standards of care?
• Did the healthcare provider’s negligence cause harm to your baby?

Establishing these factors requires a careful review of your medical records.  Often, medical experts are brought in to assess your situation.  These experts review your situation in comparison to the accepted standards of care.  That means that experts will consider what a reasonable doctor would do in a similar situation based on the standard of care.  If your healthcare provider deviated from the standards of care, then you may have an actionable birth injury compensation claim.   

Common Reasons for Birth Injury Claims in Canada

In Canada, a patient can file a birth injury claim for any of the following reasons:

• Failure to diagnose and treat a pregnancy or obstetric related condition, resulting in injuries to the mother and infant.
• Failure to diagnose a medical ailment per the reasonable standards of care set forth by Canadian law. 
• Delay in delivery that results in oxygen deprivation and brain damage.
• Failure to progress labor, such as ordering a timely c-section or intervening to progress labor more quickly. 
• Improper administration or use of Oxytocin (Pitocin or Syntocinon).   
• Medical mistakes, such as diagnostic errors, surgical errors or medication mistakes, that result in the patient requiring additional diagnosis and treatment, a change in their quality to life or a change in employability. 
• Substandard care during pregnancy. This includes negligence in testing, screening and monitoring maternal and fetal health. This also includes informing parents about possible risks or complications.
• Substandard care after delivery (neonatal period).  This includes negligence in resuscitation, monitoring vital signs, administering medications and ordering treatments. It also includes failure to transfer the infant to a pediatric hospital if necessary.   

What is the Birth Injury Compensation Claim Process?

Each province and territory in Canada has their own Court Rules that detail how the litigation process will occur.  Generally, the litigation process will include many of the same processes, but there are subtle differences. There may also be different time frames.  For this reason, it is best to contact a birth injury lawyer who is familiar with the birth injury claim process in the province or territory where the birth injury occurred.   

Damages Available in Birth Injury Compensation Claims

The reason why most parents file a medical malpractice lawsuit is to obtain financial relief.  Birth injuries often result in long-term medical care and the child needing assistance with daily life.  Parents often struggle to meet these financial obligations and insurance often does not cover therapies and caregiving expenses. 

Of course, financial compensation can never erase the trauma of a birth injury. However, it can provide relief for families who are struggling due to the actions or inaction of a negligent healthcare provider.  Birth injury compensation claims can provide compensation for the following:

Cost of Future Care

Cost of future care is one of the most important categories of damages for families.  Compensation in medical malpractice claims is designed to restore the victim to where he or she was, or would be, had the injury not occurred.  In birth injury cases, compensation is more specifically designed to provide the funds needed to pay for care that the child with need throughout his or her life.  Cost of future care compensation may include (but is not limited to):

• Medical Care – Includes doctor care, therapies, medical supplies and medication.
• Attendant Care – Includes caregiving, housekeeping, home maintenance.  
• Case Management – Includes the cost of a nurse, occupational therapist or caseworker. This person can help organize various support and services the child needs. 
• Equipment – Includes supportive equipment that the child needs, including technological devices, wheelchair, wheelchair-accessible van, lift, communication devices and more.   
• Home Renovation – If the child’s current home requires modifications to meet his or her needs, a birth injury claim can help provide for those costs.  If it is not possible to renovate the current home, then funds will cover building or purchasing an accessible home. 

In addition, it experts make other recommendations, those costs may also be covered by a birth injury compensation claim. 

Loss of Income or Earning Capacity

In Canada, birth injury claims can compensate the child for the loss of ability to earn income due to their injury.  This type of compensation is common among children with cerebral palsy or other significant disabilities.  Loss of income or earning capacity compensation is calculated based on the assumption that the child would have achieved a certain level of education and earnings.  The calculation is based on what his or her parents or siblings achieved or earned at the time of the injury. 

This type of compensation is important because it relieves some of the burden on parents.  Parents often worry about how their child will be cared for in their absence.  Compensation like this can help ensure that the child has what he or she needs. 

Pain and Suffering

Compensation for pain and suffering is also called non-pecuniary damages.  This is damages the court awards to the child for physical and emotional pain and suffering.  Courts determine compensation amounts based on the person’s age, the nature and severity of the injury, the level of disability, loss of lifestyle or impairment of life.  Children with severe disabilities, such as cerebral palsy, often qualify for close to maximum compensation allowable by law. 

Learn More About Birth Injury Compensation Claims

If your child is suffering an injury or disability due to the negligence of a healthcare provider, it is important to find out your legal rights and options.  You may have a birth injury claim. A legal claim can compensate you for injuries and losses, as well as the trauma that your child has experienced.  To learn more about birth injury compensation claims, contact a skilled birth injury lawyer at Birth Injury Guide. 

At Birth Injury Guide, we can help you understand your legal rights and the best options you have to protect your family and get the compensation that you deserve.  To request a free case review, call us at 1-877-415-6603, or complete our online form. 

Written By Sam Uribe

Sam Uribe is a researcher and writer. She lends her expertise to the team at Birth Injury Guide to provide up-to-date and relevant content that clients can count on.