While the birth of a new child can be a joyous time, it can also be difficult, particularly if the child suffers an injury at birth during labour or delivery. In addition to adjusting to the new roles of parents and caregivers of an injured child, the question of whether the birth injury was preventable can add additional stress to this already challenging time.
What is a birth injury?
A birth injury is trauma sustained at or around the time of birth, usually during labour or delivery. These injuries can lead to brain damage or other permanent impairments that may affect the child for their entire life. Examples of birth injuries include;
- Hypoxic Ischemic Encephalopathy ("HIE"),
- Brachial Plexus Injuries/Shoulder dystocia,
- Brain injury,
- Cerebral Palsy,
- Erb's Palsy,
- Fetal and neonatal stroke,
- Kernicterus (brain injury) from Hyperbilirubinemia.
Is a birth injury the result of medical negligence?
It is important to note that not all birth injuries are the result of medical negligence. Sometimes an adverse outcome is unavoidable. However, if the physicians or nurses involved in the obstetrical care (labour and delivery) failed to meet the standard of care, which caused or materially contributed to the birth injury, then a medical negligence lawsuit may be appropriate.
Examples of medical negligence include failures to properly monitor the baby with fetal heart rate monitoring, failures to properly interpret and act upon the fetal heart rate tracings, failures to properly diagnose and treat the child's condition, and failures to arrange for and proceed with delivery by Cesarean Section in a timely manner.
Whether medical negligence has occurred is highly dependent on the specific facts of your case. It is important to consult with a lawyer with experience in birth trauma and obstetrical negligence to determine whether your specific situation gives rise to medical negligence.
How long do I have to start a birth injury lawsuit?
Generally, in Ontario, for a medical negligence lawsuit, there is a two-year limitation period from when you knew, or ought to have known, the facts giving rise to your case to start a lawsuit with the courts after which you may be precluded from doing so. In the case of a minor, this limitation period usually does not begin to run until the minor reaches the age of majority (18 years of age in Ontario).
Limitation periods are case specific and should be assessed by an experienced lawyer once you suspect that you may have a potential case. If you are considering proceeding with a medical malpractice lawsuit, you should consult with a lawyer as soon as possible.
At Siskinds LLP, we have a team of lawyers and staff with expertise in medical negligence cases and health law, with extensive experience in assessing and litigating complex medical negligence cases, including birth trauma and obstetrical negligence cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.