Jan 27, 2021

Birth Injury Case Basics

Baby holding mother's hand

Understanding the basics of birth injury cases in Illinois

According to some estimates, for every 1000 live births in the U.S., six to eight newborns will suffer significant injuries during childbirth ― translating to nearly 28,000 birth injuries every year, with an extrapolated injury total of over 1000 in Illinois alone.

Sadly, many of these tragedies occur when doctors and other healthcare professionals simply disregard established hospital procedures or fail to properly adjust to changing medical conditions in the delivery room. Indeed, the reality is that countless birth injuries could be prevented annually if hospital staff merely adhered to customary standards of care during the child-birthing process.

In fact, there are many slip-ups committed by healthcare professionals during childbirth that can easily result in a birth injury. For instance, some of the more common significant birth-related injuries include:

  • Cerebral Palsy: A chronic brain disorder that hinders control of movement and can be caused when a fetus is deprived of oxygen during childbirth, such as when healthcare professional fails to monitor the fetus
  • Erb’s Palsy: A paralysis of the arm caused by nerve damage, which can result when the shoulder is caught in the birth canal (shoulder dystocia)

However, many birth injuries are the consequence of other childbirth-related mishaps, including the mishandling of a breech delivery or the improper use of vacuum extractors or forceps.

Unfortunately, children born with severe birth injuries often face a lifetime of medical difficulties ― not to mention medical bills ― as well as potential life-altering disabilities or even premature death. Thankfully, though, legal recourse may be available in Illinois when the negligent acts of a physician or other hospital staff member result in a significant birth injury.

Proving liability following Illinois birth injuries

The most effective way to hold a physician ― or other healthcare professional ― accountable for his or her negligent actions during childbirth is by filing a medical malpractice claim. However, in order to be successful when bringing a medical malpractice claim following a birth injury, Illinois law dictates that a person must be able to prove the following three elements:

  • The proper standard of care by which the alleged negligent actions of the physician will be measured
  • A deviation from this standard or care by the physician
  • A resulting injury proximately cause by this deviation

Stated another way, a physician may be liable for a birth injury if he or she caused the injury by failing to adhere to established standards or care.

The importance of expert testimony when alleging medical malpractice

Proving the elements of a medical malpractice claim in Illinois is generally done through the use of medical expert testimony. The rationale for requiring expert testimony is that the average juror is likely not skilled in the medical profession, and thus is not prepared to ultimately determine what actions constitute reasonable care without the aid of expert guidance.

Essentially, this means that both the standard of care and the question of causation will likely hinge upon what the expert has to say ― making expert testimony extremely important in medical malpractice suits.

However, in order for an expert to be competent to testify in an Illinois medical malpractice case regarding the appropriate standard of care, he or she generally needs to be licensed in the same school of medicine as the physician who caused the birth injury. Additionally, the expert normally must be able to show that he or she is familiar with the methods, treatments and procedures ordinarily used and/or observed by other physicians within the same community ― or similar community ― as the defendant physician.

Other statutory considerations may also come into play when assessing the competency of an expert witness, including whether the expert has devoted his or her time to the practice of medicine, teaching or research.

The basic idea behind these requirements is that each school of medicine may have it own distinct practices or tenets, and that it would be unfair to test the care and skill of a physician by the opinion of a practitioner of another school of medicine. For instance, podiatrists ― who diagnose and treat conditions of the foot ― would likely not be considered competent to offer opinions about the standard of care to be used when assessing birth injury cases.

Damages for medical malpractice in Illinois

If an individual is able to establish malpractice liability, he or she still needs to demonstrate the extent of his or her damages. While punitive damages are typically not available in medical malpractice cases in Illinois, compensatory damage are. Also known as actual damages, compensatory damages are defined under Illinois law to include both:

  • Economic damages, which include all tangible damages, such as past and future medical expenses, lost wages and other property loss
  • Non-economic damages, which include intangible losses, including, but not limited to, damages related to pain and suffering, emotional distress, disfigurement, disability and loss of consortium and companionship

Interestingly, Illinois law previously placed limitations on the amount of non-economic damages that could be awarded in medical malpractice cases. Specifically, non-economic damages were capped at $500,000 for malpractice claims against individual physicians and other healthcare professionals, with a $1 million cap for suits against hospitals. However, a 2010 Illinois Supreme Court case ― Lebron v. Gottlieb Memorial Hospital ― determined the statute that contained these caps was unconstitutional.

In this particular case, a patient and her mother brought a medical malpractice suit against a hospital, physician and nurse in an attempt to seek damages for injuries sustained during the patient’s birth. Tragically, court documents claimed that the patient suffered many severe and permanent injuries as a result of medical malpractice, including cerebral palsy, significant brain injury and cognitive mental impairment. Ultimately, the Illinois Supreme Court concluded that the statute that capped non-economic damages violated the separation of powers clause of the state constitution ― a determination that effectively eliminated any caps on medical malpractice claims in the process.

Notably, given that the statutory caps were declared unconstitutional, Illinois lawmakers repealed the statute in its entirety in 2013.

Other possible limitations on damages in Illinois medical malpractice cases

Even though statutory caps may no longer apply in medical malpractice suits, that does not necessarily mean that Illinois malpractice awards are not subject to certain limitations. In fact, it is possible for an Illinois court to reverse an award issued by a jury ― but only in very limited circumstances.

For instance, while Illinois courts are reluctant to interfere with a jury’s discretion when it comes to medical malpractice awards, they can interfere with the jury’s determination of damages if it is obviously the result or prejudice or uncontrolled passion, or clearly excessive. In Illinois, damage awards are considered excessive if they fall outside the necessarily flexible limits of fair and reasonable compensation, or are so substantial that they “shock the judicial conscience.” Consequently, if a malpractice award falls within the range of conclusions reasonably supported by evidence, it must stand.

Many Illinois courts have applied these standards to cases involving birth injuries, including cases in which injuries may have even contributed to a child’s eventual death. For example, in one particular medical malpractice case, an Illinois court was asked to review a jury award of $6.2 million in a case involving a child who was born with severe brain damage as a result of oxygen deprivation during his delivery. Sadly, the child in this case died of respiratory failure after 18 months, meaning both a wrongful death suit and a survival action were filed against the hospital in which the child was born.

In the end, the court determined that the award was not excessive given the nature and extent of the child’s injuries, which he had to endure for 18 long months, not the mention the child’s family suffered an undisputed loss of companionship, love and affection.

However, it must be noted that this case merely illustrates the broad discretion Illinois courts afford to juries when calculating damages in medical malpractice actions, and should not be used to gauge the amount of damages another individual may or may not be entitled to in his or her own birth injury suit. Indeed, every case is different, and there are certainly no guarantees when it comes to malpractice awards.

Statute of limitations for birth injury suits in Illinois

It is also crucial to keep in mind that medical malpractice claims should be filed sooner rather than later as they are also subject to a statute of limitations in Illinois. Indeed, a statute of limitations may apply even when the claims are related to birth injuries.

Basically, a statute of limitations is a provision that requires a claim to be filed within a particular number of years, after which time, the claim may be dismissed if filed.

While a typical Illinois medical malpractice claim against a physician, nurse or hospital must be filed within two years after a victim knows ― or should have known ― of the existence of his or her injury, the rules are different for birth injury victims. In fact, Illinois law provides an eight-year statute of limitations following birth injuries.

Specifically, the relevant Illinois statute dictates that a medical malpractice claim can be filed up to eight years after the alleged medical negligence if “the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years” ― which would obviously apply to birth injury claims. However, the same provision also provides that in no event can the cause of action be brought after the victim’s 22nd birthday.

Longer limitation period for those “under a legal disability”

It is also important to note that Illinois law states that if an individual is “under a legal disability […] then the period of limitations does not begin to run until the disability is removed.” This provision is particularly significant in the context of birth injuries given the likelihood of long-term mental impairment in such situations ― especially in the case of cerebral palsy victims.

Thus, if the negligent act that causes the birth injury also results in a disability and mental incompetence, the statute of limitations may not be begin to run until the disability is cured. But, Illinois courts have determined that in order to qualify as a legal disability a person must be “entirely without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his estate or financial affairs.”

The purpose of extending the filing period in these situations is to protect those who are not competent to do so themselves, not to mention that it has long been Illinois public policy for courts to carefully safeguard the rights of minors.

Interestingly, lawmakers recently passed new legislation in Illinois, which states that if an individual is not under a legal disability at the time of the injury, but becomes under a legal disability before the period of limitations runs, the period of limitations is stayed until the disability is removed. For example, under the language of this provision, if an individual suffers a medical malpractice injury, which eventually develops into a legal disability before the limitations period has expired, the statute of limitations will stop running until the disability is removed or cured. This particular provision will go into effect in 2015.

Legal assistance is often needed following a birth injury

Dealing with a birth injury can be particularly challenging for parents and family members. In fact, given that such situations are so emotionally charged, many people have a hard time concentrating on everyday tasks, let alone legal issues. As such, it can be difficult ― if not impossible ― to handle any potential legal claim alone.

Accordingly, if you have any questions or concerns regarding a possible medical malpractice suit following a significant injury during childbirth, it is best to seek the counsel of an experienced birth injury attorney. A knowledgeable attorney can help investigate the circumstances of the injury as well as explain your rights and options given your situation.

If you are interested in setting up a time to meet with attorney David Jasmer in our downtown Chicago office, please get in touch We don't collect attorney fees unless we obtain compensation for you.