How to make a birth defect compensation claim


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To understand the reasons why an individual might pursue a compensation claim with regards to a birth defect, first you must understand what constitutes a birth defect.

Essentially a birth defect is anything considered to be (from a medical stance) an abnormality which presents itself at birth and which could, potentially, be perceived as debilitating or possibly even life-threatening.

Naturally we all expect to give birth to happy and healthy babies at the end of the pregnancy cycle, and for the most part a new-born child arrives which can be described as being both of the above.

That said, medical complications can and do arise from time to time, whether during the term of a woman’s pregnancy or during labour; and the subsequent results of which can lead to the manifestation of birth defects in the infant and/or harm to the mother, unfortunately.

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Can’t most potential birth defects be detected in advance?

Yes, courtesy of cutting-edge technological developments in the area of ultrasound scanning for example, the identifying of abnormalities can materialise at very early stages in a pregnancy. So much so that it’s estimated that some 50% of all birth defects and abnormalities can be detected before birth, providing that ultrasounds are performed correctly at the various junctures they routinely take place.

In the case of a sonographer failing to observe an abnormality through incorrect or substandard scanning procedures (which of course might lead to the defect remaining unnoticed and subsequently untreated until the time of birth), then it’s possible that those responsible would have a case to answer to, in terms of negligence.

It’s also worth noting at this point that along with ultrasounds, blood tests are also facilitated to help monitor the pregnancy and, more pertinently, flag up any forms of abnormality via the results.

What exactly constitutes a birth defect/abnormality?

As birth defects/abnormalities can be pretty varied and tend to encompass the following at-a-glance (although NOT limited to):

Genetic problems – (when one – or more – genes doesn’t work properly, or part of a gene is missing)

Problems with chromosomes – (like missing part of a chromosome or having an extra one)

Environmental factors a woman is exposed to during pregnancy – (such as rubella or German measles while pregnant, or drugs or alcohol use during pregnancy)

Medical negligence in delivery – (this being amongst the most common cause and the topic we’re focussing on here)

What are some of the more common examples of birth defects?

For the record there are numerous types of birth defects, all of which we couldn’t possibly mention here, yet which can ostensibly be triggered by medical negligence either during the period of pregnancy itself or labour, however the predominant examples are as found beneath:

  • Spina Bifida
  • Congenital Hip Dysplasia
  • Cerebral Palsy
  • Abnormalities in the limbs
  • Abnormalities in the spinal cord
  • Congenital Heart Defects
  • Clubfoot
  • Cleft Lip or Palate
  • Sickle-Cell Disease
  • Down Syndrome
  • Maternal Diabetes
  • Erbs Palsy / Brachial Plexus Injuries
  • Cerebral Palsy

The above examples can be categorised within the acknowledged parameters of the following three recognised types of abnormality or defect; namely a chromosomal birth defect (as characterised by Down Syndrome), an anatomical abnormality (congenital heart defect, Spina Bifida) and biochemical birth defects (such as sickle-cell disease).

Having said that, some health experts prefer to opt for another, equally populist means of classification of birth defects, which form the two key elements; namely structural birth defects and functional/developmental birth defects.

The former takes into account abnormalities related specifically to an underlying problem with an infant’s body parts and structure and can comprise any of those examples listed below:

  • Cleft lip or cleft palate
  • Heart defects (such as missing or misshaped valves)
  • Abnormal limbs (such as a clubfoot)
  • Neural tube defects (such as spina bifida) and problems related to the growth and development of the brain and spinal cord

Meanwhile the latter tends to refer to issues relating to how a body part (or body system) works; conditions which can often be a precursor to intellectual and developmental disability and which can routinely include;

Nervous system or brain problems (such as IDDs, behavioural disorders, speech/language difficulties, seizures, and movement trouble). Some examples of birth defects that affect the nervous system include Down syndrome, Prader-Willi syndrome and Fragile X syndrome

Sensory problems (with core examples including hearing loss and visual problems, such as blindness or deafness)

Metabolic disorders (involving problems with certain chemical reactions in the body, such as conditions that limit the body’s ability to rid itself of waste materials or harmful chemicals). Two common metabolic disorders are phenylketonuria and hypothyroidism

Degenerative disorders (conditions that might not be obvious at birth but cause one or more aspects of health to steadily get worse). Examples of degenerative disorders are muscular dystrophy and X-linked adrenoleukodystrophy, which leads to problems of the nervous system and the adrenal glands

Also in some cases, birth defects are caused by a combination of factors. Some recognized patterns of birth defects affect many parts or processes in the body, leading to both structural and functional problems.

Is it true that ALL birth defects and abnormalities can be avoided if spotted during the pregnancy?

Not by any stretch of the imagination, no.

The fact remains that sometimes birth defects are unavoidable, despite the highest standard of medical care and attention. Yet conversely there are instances whereby medical staff tasked with performing ultrasounds, blood tests and other means of examination/assessment of pregnant women at crucial stages of a pregnancy fail to observe clues and clinical evidence of the existence of defects, which if and when proven can form the basis of/instigate a claim for compensation from the victim/family at a later date.

What is the process for making a birth defect compensation claim?

Such birth defect/abnormality claims are usually pursued by following one of two different routes, which are outlined below:

  • Negligent in diagnosing a birth defect which would have caused the parents to opt for a termination, had they known about it
  • Caused (or contributed) to the severity of a birth defect either by failure to diagnose the problem with routine testing or through clinical negligence during pregnancy or delivery

Exploring the aforementioned in more detail, and in cases of severe (or life-threatening) birth defects or abnormalities that pose a serious risk to the mother, parents may wish to terminate the pregnancy.

That is essentially the parent’s prerogative and ultimate call in the matter. However in a situation where the mother wasn’t made aware of said defects/abnormalities through the fault of clinical employees (and which should have been brought to the attentions of all the key parties during routine pregnancy testing), she may find herself in a favourable position to launch a wrongful birth claim.

Addressing the subject of financial aspects and accepted discrepancies between the two routes of justice, and wrongful birth cases have a propensity to pay-out more money if successful, based on the fundamental understanding that the settlement needs to take into account the extra costs of caring for (and raising) a child who might have profound and lifelong physical and mental disabilities.

Discussing the second route, and other causes of birth defects can include those arising from the negligence (or incompetence) of medical staff to manage the pregnancy properly, with more typical points in question being the likes of mismanagement of maternal diabetes, damage to the baby caused by forceps delivery or brachial plexus injuries (notably in cases where the mother should have been given an episiotomy or caesarean section); all of which could lead to cases of negligence being brought against either individuals directly involved throughout the pregnancy or healthcare providers/trusts/clinics per se.

How to make a birth defect compensation claim

If you believe that you’ve been the victim of medical negligence in the form of being in the possession of inadequate ultrasound scans, as a result of operator inaccuracy, inexperience or incompetence or indeed, misreading of blood tests, then it stands to reason that you might wish to pursue a claim for compensation from those individuals/bodies/authorities who you believe are responsible.

In the event of perceived medical/clinical errors having led to the development of a birth defect which has caused complications, you may well be entitled to make a claim. As we’ve already highlighted, these errors may take multiple forms. Be it a failure in diagnosis/error in employee performance (via ultrasounds, blood tests, etc…) or alternatively a failure to successfully manage a pregnancy and subsequent labour (with the decisions made by relevant healthcare professionals called into question).

It’s imperative to seek legal advice as early as possible since there are strict time limits imposed on individuals looking to make a claim for compensation.

To start your claim, or to find out more about how CL Legal can help you, get in touch today:

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