To place liability on a physician for a birth injury, the claimant has to prove three elements:
- Physician owed duty to the claimant;
- Physician breached his/her duty to the claimant;
- Physician’s breach caused the birth injury.
Physician’s Duty to the Claimant
Any physician taking part in the delivery of the child owes a duty to the child and his/her parents. As a licensed practitioner, a physician owes a duty to provide competent medical care for any patient who is seeking his/her expertise.
Breach of Duty
The determination of whether the physician breached his/her duty to the claimant is established by proving that the physician failed to comply with the standard of care accepted by the medical profession. If the physician fails to comply with the standard of care, he/she has breached his/her duty to the claimant. If the physician does comply with the standard of care, he/she has not breached his/her duty to the claimant. Expert testimony from a physician in the same field of medicine is generally used to prove that the physician did not follow the standards that the medical profession considers appropriate.
Proving that the physician’s breach of duty caused the birth injury can be difficult because a birth injury can be caused by unavoidable complications that occur during birth. To prove that the physician’s breach of duty caused the birth injury, expert witness testimony is generally used to show that it was the physician’s lack of care that caused the birth injury.
Severe birth injuries that may be caused by physician negligence include: cerebral palsy, erb’s palsy (shoulder dystocia/brachial plexus injury), and death.
If the claimant is successful in proving that the physician owed a duty to the claimant, physician breached his/her duty to the claimant, and that the physician’s breach of duty caused the birth injury, then the claimant may be entitled to a damage award in the form of monetary compensation. Damages may be paid to compensate the claimant for medical costs, pain and suffering, and loss in future earning potential. Generally, a damage award is paid to the injured child directly in form of a trust.
If you or someone you know has been injured by medical malpractice or negligence, feel free to contact Robbins and Associates PC attorneys in Atlanta, Georgia.