Birth injuries are devastating for parents, as anybody who has been through such an experience can tell you. The frustration can be particularly great in cases where birth injury is caused by medical malpractice. For those who have a strong enough case, there may be the ability to sue for medical malpractice and obtain damages to help ease the financial burden that can follow a birth injury. Victims of medical malpractice leading to birth injury do not always have the ability or opportunity to sue, though.
For example, up until recently, Michigan did not allow medical malpractice lawsuits for injuries that occurred during a pregnancy that had not yet reached 24 weeks, the age of viability. That rule was recently changed when the Michigan Court of Appeals ruled in favor of a woman whose baby was born at 18 weeks because of her doctor’s alleged medical malpractice.
The Court of Appeals ruled that the ability to pursue a medical malpractice claim is not dependent on whether the baby was viable or not. For the woman who lost her child, of course, this doesn’t necessarily mean she will win her medical malpractice case, but only that she is able to pursue it. To prevail, she will still have to demonstrate that the physician who was caring for her at the time of the injury breached an established standard of care, as well as causation and the other elements of a medical malpractice claim.
Those who have been harmed by a birth injury, regardless of whether the injury occurred before or after viability, should consult with an experienced attorney to determine whether there is any basis for them to pursue a malpractice claim. Doing so will ensure they have solid guidance and preparation of their case.