One study of children born in the United States estimates that as many as 22 children could be born every day in the state of New Jersey who have birth injuries. Many of these injuries will not be long-lasting, such as broken bones that will mend easily. Others can result in cases of severe medical conditions and disorders that will be with the child for the rest of their life. In these cases, the family may choose to bring a lawsuit against the medical professional or facility for malpractice.
What is Malpractice
Malpractice in a birth injury case occurs when a doctor, nurse, midwife, or other member of a medical team, or the entire healthcare team in general, does not meet the standards of healthcare necessary to keep a child healthy during birth. If the fault is of no one person, but rather the policies, actions, or inactions of an entire medical team, the facility itself could be charged with malpractice.
For example: if a delivery becomes problematic, and the doctor fails to notify the mother that an emergency C-section delivery could be safer for her baby, and that baby is then born with an injury that causes a lifelong medical disorder, that doctor could be found guilty of malpractice under New Jersey law.
Cerebral Palsy
One of the most common types of lifelong injury sustained at birth is cerebral palsy, which is a type of brain damage that often occurs when an infant lacks oxygen for a period of time during or directly after birth. This condition can delay mental development, cause severe physical disabilities, and lead to a lifetime of necessary medical treatment.
If the healthcare team fails to properly provide the infant with oxygen, within minutes the type of brain damage that leads to cerebral palsy can occur.
Filing a Birth Injury Lawsuit in New Jersey
New Jersey has a statute of limitations on medical malpractice suits that extends to two years within the date of injury. There are several exceptions allowed in the case of birth injury. If the injury is not discovered within the first two years of life, the plaintiff has from two years after the discovery of injury to file. Cerebral palsy and similar conditions often cannot be diagnosed until after the child reaches toddler ages, because their development is easier to measure after infancy. Another important exception is in the event that a minor child wishes to file a lawsuit regarding a birth injury they sustained. In these cases, the medical malpractice suit can be delayed until the child’s 13th birthday, at which point the statute of limitations runs out.
After filing a lawsuit, the lawyer for the plaintiff must present an affidavit from a medical expert who has reviewed the case and is willing to state that a case of malpractice did take place in their medical opinion. This person must be a practitioner in the same specific health care field as the defendant.
New Jersey caps punitive damages in birth injury lawsuits at 350,000 dollars, or no more than five times the economic damages that were awarded. Neither economic nor non-economic damages are capped by New Jersey law. New Jersey does follow a comparative negligence law, which states that the plaintiff may be found liable for part of the negligence (such as if the plaintiff failed to follow the doctor’s instructions or medical advice during the event that caused the birth injury). In these cases, the damages awarded could be diminished in relation to how much at fault the plaintiff was in the injury.
Sources:
http://www.alllaw.com/articles/nolo/medical-malpractice/laws-new-jersey.html