Ontario Birth Injuries: Knowing your Rights

The birth of a child is one of the most joyous occasions in any family’s life. Parents plan for the arrival of their new baby with great happiness. Unfortunately, sometimes the joy of the arrival of a new baby is interrupted by an injury to a baby that occurs in the process of delivery. The results of birth injuries can be devastating and very often life-changing not only for the child but the parents of the child as well. Babies injured at birth may suffer lifelong consequences which cause a great deal of strain and burden on their parents and other family members.

Statistical evidence shows that while in general, the use of forceps to assist in delivering babies is declining when forceps are used, the risk of injury from such procedures is on the rise. This further has translated in an increase in birth injury claims as well.

In addition to birth injuries suffered as a result of the use of forceps, there are also many other types of birth injuries that can occur.

Types of birth injuries

Birth injuries can include a wide range of incidents that may occur either before labour, during the labour and delivery process or after birth.

In many cases, the birth injuries that occur in these processes are the result of medical malpractice (often referred to as medical negligence) which is committed by the medical provider during the birthing process.

The injuries mentioned below are merely a few examples of the types of injuries that occur to infants at birth. There are many more types of injuries that can occur and these are for illustration only. It is important for parents of children who may have been injured at birth to understand what types of injuries may result in valid legal claims.

Hypoxic Ischemic Encephalopathy

One type of injury is known as Hypoxic Ischemic Encephalopathy (HIE) which occurs when the newborn’s brain is deprived of oxygen or blood flow during the birth process. This can have devastating consequences for a newborn including permanent loss of brain function, neurological, and other complications.

Trauma Caused by Forceps or Vacuum

Sometimes during the delivery process, forceps or a vacuum must be used in order to assist in the child’s birth. Unfortunately, it is very common that when the use of these tools occurs that permanent injuries to the newborn result. These can cause long-lasting neurological damage and other behavioural problems as well.

Cerebral Palsy

This often occurs when the infant does not receive adequate oxygen during birth. This can happen due to a number of complications including a failure of the medical professionals to properly intervene in the birthing process when the infant is distressed due to a lack of oxygen. The effects of cerebral palsy are life changing for the infant and include physical disabilities and impaired cognitive abilities.

Understanding the legal process for handling birth injuries

Generally speaking, recovery for birth injuries is based upon a theory of negligence on the part of the medical providers involved. This is often referred to as “medical malpractice”.

Proving that a birth injury is the result of medical malpractice typically involves proving that a medical provider breached a legal duty that was owed to the patient, and that the breach of that due was the cause of damage to the patient.

In cases of alleged medical malpractice or negligence, it is often difficult for a lay person to know whether a particular birth injury was the cause of negligence or if it would have occurred in either case. In other words, it is possible that some birth injuries may occur even when there is no negligence on the part of the medical providers involved.

Due to the complexity of medical malpractice cases, it is important for the families of children who suffer injuries at birth to promptly seek legal advice to ensure that the process is handled properly.

In a successful case, a family may recover damages for many components of damage which varies by case. It is not uncommon for a parent to have to become a stay at home parent to care for a child who has suffered a birth injury. In addition, a child’s future earning potential is also often harmed by a birth injury.

From a financial perspective alone, cost of care for some injuries can be debilitating on top of an already tremendously difficult time. There are also elements of non-economic damages that may be recoverable for items such as the emotional toll that a birth injury takes on parents and how it impairs their relationship with each other as well as their injured child.

Important steps to take for parents of children injured at birth

If your child has suffered an injury at birth, it is important to promptly obtain medical records of the entire birth process for both the child and the mother. It will be necessary to have these records available for your lawyer to review in order to determine the next steps.

As mentioned above, consulting with a lawyer early in the process to determine what rights you may have to a recovery of damages is very important.

After consultation with your lawyer, if it is determined that a valid legal claim exists, the process of notifying the medical providers’ insurance carriers will be undertaken in relatively short order.

There may be applicable time periods within which to notify the medical provider’s insurance company of the potential claim as well as other processes to follow that a competent lawyer can assist you with navigating. This is a delicate and emotional process, and a competent lawyer will be by your side the entire time to ensure you and your child are in good hands.