Birth Injury Medical Malpractice (podcast) May 15, 2024.

Birth Injury Medical Malpractice (podcast)

In this podcast, Christopher Mellino talks about medical malpractice that causes birth injuries. He explains how the two most common types of birth injuries occur.  Then, he talks about compensation and what to do if your child has been affected.

John Maher: Hi, I am John Maher. I'm here today with Christopher Mellino, founding attorney of the Mellino Law Firm, a personal injury law firm in Cleveland, Ohio, with a focus on medical malpractice. Chris has over 40 years of experience in handling medical malpractice cases, has been involved in several landmark cases in Ohio, and has received verdicts against every hospital system in Cleveland. Welcome Chris.

Christopher Mellino: Hi, John. Good to be here today.

Types of Birth Injuries Caused by Medical Malpractice

John: Thanks. Yeah. So Chris, today we're talking about birth injury, medical malpractice, and birth injuries can be obviously devastating for newborns and their families. What are some of the most common types of birth injuries that could be caused by medical malpractice?

Christopher: Well, yeah, you're exactly right there. These are the most devastating kinds of injuries because most often they happen on what should be the happiest day of a parent's life. They're going in thinking they're having a brand new baby, bringing a new life into the world, and something tragic happens, which changes their course of their life and their child's life forever.

Brain Injuries Due to Lack of Oxygen

The two most common types, and by far the most common type is when a mom goes into labor, it puts stress on both the mom and the baby. And as labor progresses and contractions get stronger, it can affect the amount of blood flow that passes. The baby gets all its blood from mom, and blood brings oxygen so it gets all blood and oxygen from mom through the placenta that goes through the umbilical cord. As contractions get stronger, it can cause disruption in the blood flow. So fortunately, medical science has a thing called a fetal heart rate monitor.

So when the baby's not getting enough oxygen, the baby's heart rate, the first thing it does is slow down. So normally a baby's heart rate should be between 120 and 160 beats per minute. So the fetal heart rate monitor will tell the doctor what the baby's baseline heart rate is. So let's say it's 125 beats a minute. Well, if the baby starts not getting enough oxygen, not getting enough blood flow, not getting enough oxygen, if that goes on long enough, the heart rate will drop and the fetal heart rate monitor will tell the doctor that.

Now what normally happens is in relation to the contraction. So if there's a contraction and the baby's heart rate drops after the contraction, that tells the doctor that the baby needs to be delivered pretty quickly because the baby's having stress and the baby could be in trouble. And if the doctor doesn't do that, doesn't get the baby delivered and let's that go on and with every contraction the mom's having, there's a depriving to the baby of oxygen, over time that's going to cause brain injury to the baby because the baby's brain needs blood and oxygen to survive.

John: Sure. So is that the most common type of birth injury then? Yeah. So brain injuries because of lack of oxygen.

Brachial Plexus Injuries

Christopher: Right. The other most common is when the baby is being delivered naturally... Although it can happen with a C-section, it most often happens during a natural delivery. If the baby's too big for the birth canal, the baby gets stuck, the doctor starts pulling on the baby, can cause it's called a brachial plexus injury, which the brachial plexus or the nerves in the neck, they can pull and stretch those which could cause the baby's arm to be paralyzing. That's a brachial plexus injury.

So those are the two most common types of injuries that occur during birth. And then third would be if there's an attempt to deliver the baby with forceps or with a vacuum extraction, those can also... that type of delivery if too much force is used, try and get the baby out during those, what are called mechanical or assisted delivery, those can cause injuries to the baby's head and brain as well.

What Constitutes Medical Malpractice With Birth Injuries?

John: So during pregnancy and childbirth, there's a lot of decisions that everybody has to make including doctors and nurses. Can you explain how a doctor's failure to follow established protocols might constitute medical malpractice in a birth injury case?
Christopher: Well, sure. I mean, most of the guidelines or protocols are set up to protect patient safety. So anytime a doctor doesn't follow the protocol, unless they have a darn good reason for not doing that, then generally negligence.

But in terms of protocols, most of the birth injury cases occurred during labor, not during the prenatal period. I mean, during the prenatal period, the most common errors are not monitoring the size of the baby, which could be determined either by measuring the growth of her abdomen over the term of the pregnancy or ultrasound is the most accurate way. Not every mom wants to have ultrasounds, but it's the most accurate way to estimate the baby's weight.

And so if the doctor's not following those protocols and the baby gets too big to be delivered through the mom's pelvis and they try that anyway, that would be negligence. But most of the time it's failing to monitor it during labor, failing to recognize signs of fetal distress during labor, and failing to deliver quickly when the baby's in trouble. And the last thing would be not to have other doctors there to help resuscitate the baby once the baby's born, there are signs of the baby being in distress.

John: Is it a challenge to distinguish what might just be an unfortunate outcome? Because birth is obviously just a difficult thing and used to be much more difficult than it is these days with all of the medical science that we have now, but it's still a dangerous thing for both the mom and baby. Is it hard to distinguish between just an unfortunate outcome just because of normal circumstances versus a situation where legal action might be warranted?

Christopher: Well, I don't know how to answer that question. I mean, honestly, no, it's not that hard to distinguish. But on the other hand, they'll make it hard to prove in court. Obstetrics is one particular branch of medicine that is very defensive. Medical articles are written to try to justify things that are commonly done by obstetricians that are actually negligence to make it seem like it's standard of care.

But generally, I mean, if you've had a normal pregnancy, everything's been fine through the pregnancy, you should be able to have a normal delivery and a normal baby. I mean, there are some rare circumstances where something happens like the baby could have a stroke shortly before delivery, whatever. But that's going to be obvious from if an MRI brain is done, usually if there's some kind of brain injury and MRI is done within days of the birth, which will have a pretty good roadmap as to what happened and when it happened.

But to the normal lay person, I would think if everything was normal in your prenatal period, your pregnancy and your baby's not having problems, I'm sorry... if the baby is having problems or delayed in their development, it would definitely be something to look into.

Evidence for Medical Malpractice Lawsuits

John: Evidence is obviously crucial in any kind of legal case. What kind of medical records or documentation are important to gather when you're considering a birth injury malpractice lawsuit?

Christopher: Well, sure, the fetal heart rate monitor that I've mentioned, that prints out a strip that's a second-by-second record of the labor and the baby's reaction to labor. That's usually the most important thing in a case involving a brain injury during labor and delivery from lack of oxygen or hypoxia. But it's always the medical records that are important in a case like this.

John: And so having an attorney I would imagine would be important in that case because your likelihood of you being able to ask the hospital for your medical records and get something like the fetal heart rate monitor information is probably slim, but a lawyer would have a better shot at collecting all of that information right?

Christopher: Yeah. Yeah, absolutely. And definitely a lawyer that handles birth injury cases. Malpractice cases in and of themselves are difficult enough, but birth injury cases are even a special step above as far as the terms of complexity and medical knowledge that you need... that a lawyer needs to handle those kinds of cases.

Compensation for Birth Injuries Caused by Malpractice

John: When you have an injury to somebody who is older and you're looking in terms of compensation and damages, you can look at things like their loss of wages and look at what kind of job they have now and what they might've been able to make during their lifetime and things like that. How does that work in the case of a birth injury in terms of what parents can seek compensation for in a medical malpractice case involving a birth injury like this?

Christopher: Sure. Well, the biggest harm or loss in a birth injury case is going to be the future medical care that the child will need because those can be astronomical. Those can be $20 to 40 million depending on how injured the baby is.

But our job as medical malpractice lawyers is to get someone involved early on to be able to make a plan to include every need that the baby will have over the course of their lifetime and include those costs because that's part of what could be recovered in the case. So most parents, when they're told their baby has a brain injury, they don't realize the extent of that or the amount of care that's going to be needed. They try to do it themselves and it just becomes overwhelming. And the older the child becomes, the harder it is on the parents. It's one thing to carry a two or three-year-old around all the time if they can't walk. But when they're eight, nine, 10, 14, it's impossible so...

John: Right.

Christopher: There's all kinds of, not just medical care, but aids, devices that parents and their child are going to need throughout the course of that person's lifetime. And so we develop... working with experts, develop a life care plan that will provide all of those needs and determine costs, future costs of those. And then even though the injured person is a baby and hasn't worked, they're still entitled to what they could have earned over the course of their lifetime if they had not suffered a brain injury.

And that's generally based on what the parents... what they earn, because most economists will tell you that most children follow the footsteps of the parents, maybe not in the same exact profession, but in terms of their education and the types of jobs that they go into. Basically still do a little bit better than their parents, but in the same ballpark. So those also have to be projected in the future and counted for in a medical malpractice case to make sure that those costs are covered.

Contact Us If You're Dealing With Birth Injuries

John: All right, well that's really great information. Great to talk to you, Chris. Thank you.

Christopher: You're welcome.

John: And for more information, you can visit the Mellino Law Firm website at or call (440) 333-3800.