Just because there is an injury sustained by the mother or child during delivery does not mean it is medical negligence. There must be a determination of legal liability. This determination applies the law of medical malpractice to the facts of each individual case. This determination is a four-step process.
Step one is to establish the medical standard of care for the specific situation where the child, mother, or both were injured. In this step, the court assesses the doctor’s actions by comparing them to similarly skilled doctors in similar settings. Qualified medical experts testify to the proper medical standard of care. This level of care considers all the medical information that is available to the doctor at the time of injury. The court will not apply hindsight to a case when holding a doctor responsible for damages. If the doctor could not have known the information at the time, it is not admissible.
Once a standard of care is established, the next step is to measure the doctor’s actions against the standard actions. A medical expert looks at what actions the doctor took during the process of labor and delivery and compares it to what would have been done by someone with a similar skill set, based on the information available to the doctor at the time.
The third step is to determine if the doctor deviated from the standard of care and if that deviation caused harm to the mother or child. Suppose the doctor does not recognize the complications happening during a vaginal birth and orders a C-section. It must be determined if that error in judgment is what caused the injury. If the damage would have occurred anyway, then the error was not the cause. Therefore, there is no medical malpractice.
The last step identifies the loss and calculates the injuries and damages as a result of the malpractice. For the most part, people would not go through the trouble of filing a lawsuit if they did not have all the evidence they needed to win the case. Having sufficient evidence does not mean that the doctor and the doctor’s lawyers are not going to fight the case and the number of damages. If you are seriously considering legal action, you should contact an Erbs palsy lawyer to talk through your particular case and understand your situation. A lawsuit may not be the easy path, but it may be the right one for you. Talk to the lawyer to find out all your options.