Articles Posted in Illinois Birth Injury

In previous blog posts, we have addressed the obvious dangers that medical malpractice caps on non-economic damages pose to victims and their families. Of course, the debate on tort reform has undoubtedly been controversial. In light of the political waves tort reform continues to cause across the country from California to New York, you may find it interesting, if not helpful, to take a brief look at the state supreme courts that have struck down medical malpractice caps on grounds that such caps violate the states’ constitution.

Non-economic damages – compensation awarded to victims based on harm and loss that cannot be easily quantified in economic terms – have proven to be particularly important in cases involving birth injuries and wrongful deaths resulting from the negligence of medical professionals.

As terrible as a medical malpractice tragedy can be for a victim and their family, having such a misfortune take place in a state where (1) there is a constitutional prohibition on damages caps or (2) the state supreme court has ruled that non-economic damages caps are unconstitutional, can certainly put the affected family in a better position to cope with the terrible tragedy.

Recent studies have shown that medical malpractice caps on non-economic damages exacerbate inequality in the judicial system. Certain plaintiffs are more likely to have a large portion of their award tied to non-economic damages. In particular, those without large annual incomes or who have injuries that cannot be quantified in dollar terms easily. The elderly, stay-at-home parents, and children are particularly affected.

Children harmed by negligence at birth may also be disproportionately affected by these caps. Obviously, by their very name, economic damage must be tied to quantifiable losses, like lost wages. Children who develop cerebral palsy, erbs palsy, or other injuries as a result of negligence may have a hard time identifying many economic losses, beyond basic medical costs and some potential lost wages. However, they obviously have suffered an immense loss in other terms–as they must live a life plagued by various challenges. Juries have long sought to honor those non-economic losses with proper compensation to account for the pain, suffering, and effect on the individual’s life.

Damage caps, however, take that option away from juries. This is one of many reasons why attorneys who work on malpractice cases, including birth injury matters, rally against these destructive “tort reform” measures.

What do labeling standards for hazardous materials have to do with birth injury lawsuits?

Perhaps not much directly, but legal principles used in one case may eventually impact many seemingly unrelated areas. It all has to do with the many faces of tort reform. Some mistakenly believe “damage caps” and “tort reform” are synonymous. That is not the case. Instead, arbitrary caps on damages are just one of many ways that certain big corporate interests seek to tilt the playing field and make it harder for those hurt to recover for their losses.

Beyond damage caps, and perhaps even more invidiously, tort reform can also take the form of changes in the law which limit who can sue at all, on what grounds, and what legal standards are applied when judging liability. Using a variety of theories, many corporate front groups are advancing arguments in many different types of cases all with the same goal.

Tubal ligations, which have been linked to ectopic pregnancies, are among the preventative sterilization services which insurance companies are required to cover under the Affordable Care Act. Ectopic pregnancies occur when the embryo implants outside the womb, usually somewhere in the fallopian tube. If left untreated, an ectopic pregnancy can lead to a life threatening emergency, such as the one experienced in tan Illinois case where a woman from Wheeling died after her fallopian tube ruptured subsequent to her doctor’s failure to notify her that the results of her ultrasound test indicated a strong possibility of an ectopic pregnancy.

Ectopic Pregnancies Are Often Misdiagnosed

Ectopic pregnancies sometimes require surgical intervention, but in other instances can be treated with methotrexate, a chemotherapy technique that removes the fetus from the fallopian tube in an attempt to avoid life-threatening complications to the ectopically pregnant woman. However, according to a recent article published by ABC News, roughly 40% of pregnancies diagnosed as ectopic are later revealed to be normal pregnancies. For example, according to the article, one woman who was administered methotrexate after being diagnosed with an ectopic pregnancy gave birth to a daughter who had no rectum, vagina or uterus and also had a malformed spinal cord. Per the article, the mother has filed a medical malpractice lawsuit and a jury trial is scheduled for early 2013.

Volunteers who participate in medical research and clinical trials are essential to developing the medical advances that help improve both the length and the quality of people’s lives. While many of these research subjects have the benefit of exposure to cutting-edge medicines and procedures, they are also subject to many of the risks that come with medical experimentation. In general, before a researcher can enroll a participant in a medical study, he or she must ensure that the subject provides informed consent. If researchers do not provide participants with all the safeguards of informed consent, they may face significant legal liability .

Elements of Informed Consent

As with informed consent to a medical procedure, three elements must be present in obtaining consent for participation in a medical study: capacity, voluntariness, and disclosure. Capacity refers to an individual’s ability to understand the circumstances and make decisions for him or herself. Voluntariness refers to an individual’s right to make a decision freely without being manipulated or coerced. The third element is often the trickiest: researchers must make a full disclosure of the foreseeable risks and benefits of participating in the study, so that volunteers can make an independent and educated decision about whether to participate. When researchers do not adequately make such disclosures, study subjects are unable to make fully informed decisions about their participation.

There is a national shortage of injectable zinc in hospitals, this current crisis lends to an environment where potentially negligent care is delivered to children as a result of a lack of access to this necessity. An article on this week stated that the scarcity of zinc in hospitals resulted in seven documented instances where, already vulnerable, premature babies succumbed to atrocious skin lesions and suffered other, adverse, potentially, life-threatening reactions. Hospitals nationwide use the zinc as a key ingredient to nourish premature babies in neonatal intensive care units (NICU). During the final weeks of a full-term pregnancy an unborn child receives the necessary zinc in the womb. However, babies born prematurely require major doses of zinc to promote proper cell metabolism and growth. The zinc supplement for preemies is typically delivered via total parenteral nutrition (TPN) – which is basically food administered intravenously. The dangers of not receiving the zinc can vary from acute skin lesions to permanent cognitive impairment to death.

An estimated 120,000 babies may be in danger due to the zinc shortage. Reliance on TPN for nourishment is not exclusive to premature babies. Approximately 400,000 adults are prescribed TPN in hospitals, nursing homes and in-home care situations. Thus, these individuals are also at risk of suffering potentially deadly zinc deficiency related reactions because of the shortage.

According to a report published last month by the Centers for Disease Control and Prevention (CDC), the two U.S. manufacturers of injectable zinc, Illinois-based, Hospira and New York-based, American Regent, have no inventory of the drug available. American Regent stopped production due to contamination and Hospira could not keep up with demand, however is scheduled to resume production this month.

Perhaps the most serious injuries that arise during a traumatic birth are those that affect the brain. Most injuries that are purely physical are obviously damaging, but there are more and more options to treat and account for injuries of a purely physical nature. On the other hand, harm that affects and infant brain is often incredibly debilitating affecting every area of their lives and influencing their long-term capabilities.

Oxygen Deprivation at Birth

Most birth injuries affecting the brain stem from asphyxia–when the brain is deprived of oxygen for an extended period of time. Many birth injury lawsuits have been filed in just these cases, because the prolonged oxygen deprivation is often caused by failure on the part of medical teams to act in a timely manner or to properly pick up on signs of fetal distress. Medical malpractice is not implicated every time that a child suffers a birth injury affecting the brain, but in far too many cases it is actually preventable.

The Chicago cerebral palsy attorneys at our firm work with many local families whose youngsters suffer from the condition as a result of preventable birth injury. When helping family receive compensation for the lifetime of extra costs, we often explain how cerebral palsy does not have an actual cure–a fact which affects damages in a settlement or judgement. Instead, much of the work done now is helping those with cerebral palsy maximize their skill set and integrate into a community as much as possible despite the unique challenges they face.

However, just because there are limited options right now for recovery, does not mean that nothing will ever be known about reversing the brain damage which is the hallmark of cerebral palsy. Many medical researchers are working diligently on the problem, and it is reasonable to hope that advances will be made in the years and decades ahead.

For one thing, research out of Australia was published last month which offers a great sign that might ultimately lead to a cerebral palsy cure.

The legal system is time-consuming and expensive. That is particularly true in medical malpractice cases, including Chicago birth injury matters, because the factual issues are quite complex. Hiring an expert witness, combing through medical records, and interviewing all those involved in a matter takes time and resources. The reality is that if those harmed by malpractice related to childbirth were forced to come up with all those costs at the outset, most people would not have any way to use the civil justice system. The costs would be prohibitive.

Fortunately, in birth injury cases, as in virtually all personal injury matters, contingency fee arrangements are used to ensure justice is pursued for all–both rich and poor alike. Recently the Center for Justice & Democracy released a helpful new report on the subject entitled Courthouse Cornerstone: Contingency Fees and Their Importance for Everyday Americans. It offers a range of helpful information about how these systems work and the value that they provide to the community.

Contingency Fee Basics

Social media chatter has been abuzz the last few weeks over a new contestant in the reality TV romance shown known as The Bachelor. One of the contestants on the latest season is a woman who was born with only one full arm as a result of a birth injury. These television shows are not exactly known for their ability to spark useful national conversations. However, in this case, the contestant has worked hard to ensure her newfound celebrity is used to share important information about the risks of injury to developing children.

In Utero Injuries

The 25-year old contestant, Sarah Herron, has thus far survived the first two rounds of the contest. As explained in a new VOXXI article, Herron’s injury developed in utero and was caused by amniotic band syndrome. This is a quite rare condition, which is caused when the fetus becomes tangled in strands of the amniotic sac. This situation influences the development of the fetus. The strands can constrict the growth depending on where they are located on the fetus. In many cases it results in a limb amputation. In Herron’s case it occurred in her left arm at the elbow.

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