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The difference between birth injury and birth defect

In a very rare number of instances, something goes wrong when a baby is born. These unfortunate events can generally be classified as either birth defects or birth injuries.

Estimates put the number of babies born with birth defects at 7 percent. Birth defects can range from very mild to severe and although the cause of most birth defects is unknown, some can be caused by factors including heredity and the mother’s actions during pregnancy such as drinking or drug use.

In these cases, your ability to sue for damages is quite limited.

Conditions to sue for birth injuries

Birth injuries can occur when a doctor uses an improper technique or tool during delivery such as improper use of forceps or failure to perform a necessary caesarian section. Sometimes birth injuries can be traced back to prenatal care. Birth injuries are very rare -- one estimate puts the incidents of birth injuries in the U.S. at five in every 1,000 births.

Lawsuits arising from a doctor’s actions or inactions usually are accompanied by medical malpractice claims against the doctors, practitioners and occasionally the hospital. A judge will look at whether the events that led to the birth injury were beyond a doctor’s reasonable and competent skill.

Lawsuits regarding improper prescriptions are also possible against doctors, pharmacists or drug manufacturers. These cases usually hinge on the defendants’ failure to warn of the drug’s risk.

During the lawsuit, your attorney will likely consult and present testimony from a medical expert qualified in the same area as the defendant. This expert will testify on the generally accepted standard of medical care. If your medical professional fell below that level, then a lawsuit may be successful.

Some of the more common birth injuries include:

  • Swelling of the soft tissues of the baby’s scalp
  • Bleeding under one of the cranial bones
  • Bruising or forceps marks
  • Blood vessel breakage in the baby’s eye
  • Facial paralysis
  • Nerve damage at the baby’s shoulder
  • Collarbone fracture

Damages from a birth injury suit

Damages from a successful lawsuit usually go to the child, often in the form of a trust. Damages can include medical expenses, pain and suffering, and loss of future earning capacity.

While recently passed laws limit the amount allowed in certain types of damages, some other damages are not limited to a specific amount.

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