How do I know if a birth injury was caused by a deviation in the standard of care?
The “standard of care” is a complicated medical and legal concept that is supposed to minimize the chances that a physician will cause harm to a patient or cause the patient’s case to lead to an undesired outcome.
Standards of care exist to protect patients, basically. They also protect care providers since they can establish that the care provider did everything expected of their profession in order to avoid causing harm, to the extent reasonably possible.
Therefore, in medical malpractice cases involving a birth injury, it is very important to consider whether or not the standard of care was met. Unfortunately, answering this question is incredibly complicated, and it requires help from both legal and medical professionals.
If you or your partner or your child have been inflicted with a birth injury and aren’t sure if it is because the standard of care wasn’t met, speak to a birth injury lawyer in Tampa as soon as possible. Your case will likely involve a significant amount of research, investigation, and consideration of the evidence. Having a legal professional guide you through the process and explain the concepts most pertinent to your case can help you increase your chances of holding a negligent care provider liable.
What is the standard of care?
One universal truth of medicine is that there is no 100% way to avoid injuries, complications, or undesired outcomes. Doctors are also not infallible, so they may make mistakes sometimes or fail to do everything in their power to prevent an injury.
Medical care providers are allowed to be “not perfect”, but what they are not allowed to do is deviate from the “standard of care”.
The legal concept of a “standard of care” comes from many different rules, guidelines, laws, and expectations set by various organizations throughout the medical field. Some standards come directly from regulatory agencies like the U.S. Department of Health, meaning they are essentially laws that must be followed or there could be penalties. Other standards are set by professional organizations that oversee a specific type of practice in a specific area. For instance, a physician helping a patient give birth in Tampa will have standards set in part by the Florida Obstetric and Gynecologic Society. Hospitals and other provider organizations will also set their own standards of care.
You can think of a standard of care as a checklist. So long as your care provider follows everything on the list and does everything they are supposed to, the chances of a birth injury or some other form of harm are minimized. In cases where the standard of care was met (which is always up for debate) but an injury still resulted, it is very possible that the attending physician will not be considered to have committed malpractice because they did everything expected of their profession.
When there is a deviation from the standard of care, however, that means that the provider has opened up the patient to a whole set of risks. Any time a birth injury occurs and the standard of care was clearly not met, the attending physician and their provider organization are supposed to be held liable for the resulting damages.
How can I prove that a birth injury was caused by a deviation from the standard of care?
In order to establish that malpractice took place and that a provider is liable for birth injury damages, the patient has to be able to prove, with evidence, the following four statements:
- A standard of care existed
- That standard of care was breached by someone providing care to the patient
- That breach directly led to a birth injury
- That birth injury caused damages that can be recovered through the legal system (or through an insurance policy)
“Damages” include any costs the patient would not have had to pay if not for the birth injury. Examples include emergency surgeries or procedures or needed medications. It can also include the costs of a lengthy hospital stay that would not have been needed if not for the birth injury. In cases where the mother and/or the baby was temporarily or permanently disabled as a result of the birth injury, the care provider is liable for compensating them for their losses. For example, if a birth injury caused a mother to use up all her sick leave for the year once her maternal leave was exhausted, the provider may have to compensate the mother for the loss of paid days off. Damages can also refer to the pain and suffering experienced by the mother, the child, or the family as a whole.
Knowing all of this, proving that a birth injury was caused by a deviation from the standard of care is incredibly difficult. Hospitals and other care providers have dealt with medical malpractice lawsuits for decades. Their administrations and their insurance providers are prepared to fight claims to the extent possible. They will do everything in their power to either avoid liability entirely or to pressure the injured patient to settle for an amount of money far lower than their actual damages.
In these situations, it can absolutely benefit individuals to work with an experienced birth injury lawyer in Tampa. A birth injury lawyer will research the applicable standards of care and gather evidence to establish whether or not they were met. They will also research case law for similar cases in order to determine how local courts typically handle cases like these. Much of their job involves vigorous evidence gathering. They will speak to medical professionals who can explain the standard of care and offer their opinion on whether it was met. Sometimes, the attorney will even recommend filing a lawsuit and skipping the insurance claims process so that they can use powers of discovery to subpoena evidence the provider would rather remain hidden.
Overall, proving that a provider deviated from the standard of care is not easy, and it’s a task made harder by high-powered attorneys acting on behalf of providers and malpractice insurers. Increasing your chances of success may not only require an experienced attorney but also the input of fact witnesses from throughout the medical field.
If you or someone in your family has been inflicted with a birth injury, it is important to act now. Speak to a Tampa birth injury attorney at Darrigo & Diaz to begin investigating your case and to start the process of proving malpractice.
Learn about what factors your case will involve and what the process might look like for you when you call (813) 774-3341 or contact us online to schedule a free and confidential phone consultation.