Frequently Asked Questions: Birth Injury

Birth Injury

Frequently Asked Questions

When a baby or mother is seriously injured during pregnancy, labour or delivery, families are often left with difficult questions about what happened and why. Birth injury claims can involve obstetrical care, fetal monitoring, medical decisions, causation and significant future care needs. These frequently asked questions explain how potential birth injury and obstetrical malpractice claims are investigated in Alberta and how Weir Bowen helps families understand their legal options.

1. How do I know if my child’s birth injury could have been prevented?

It can be very difficult for a parent to know.

Not every difficult birth or unexpected medical outcome is the result of negligence. Pregnancy, labour and delivery all carry risks, even when appropriate medical care is provided.

The question is whether something happened — or should have happened but didn’t — that fell below the appropriate standard of care and caused a preventable injury.

Answering that usually requires reviewing the medical records and, in many cases, having independent medical experts assess what happened. Parents aren't expected to figure that out themselves.

2. What kinds of birth injuries can be caused by medical negligence?

Birth injury claims can arise in a number of different circumstances.

One area we frequently investigate involves brain injuries caused by prolonged oxygen deprivation during labour or delivery. Other cases can involve delays in recognizing or treating medical conditions after birth, including dangerously low blood sugar or jaundice.

The fact that a child has experienced one of these conditions does not automatically mean medical negligence occurred. The important question is whether appropriate care could have prevented the injury.

3. Could a lack of oxygen during labour have caused my child’s brain injury?

It can.

Short periods of reduced oxygen can occur naturally during labour and do not necessarily indicate that anything has gone wrong. Problems can arise when oxygen deprivation becomes prolonged and the warning signs aren't appropriately recognized or acted upon.

Electronic fetal heart monitoring is one of the tools healthcare providers use to watch for patterns suggesting that a baby may be in distress. When investigating a possible birth injury, lawyers and medical experts may review fetal monitoring records, brain imaging, laboratory results and other medical information to understand what happened.

4. What if my child’s problems weren’t apparent until months or years after birth?

That can happen.

Some injuries are apparent immediately. Others may not become fully understood until a child gets older and begins reaching — or struggling to reach — developmental, educational or behavioural milestones.

Difficulties involving thinking, executive functioning, impulse control or the ability to live independently may not become clear until later childhood.

If questions have developed over time about what happened during your child's birth or newborn care, the fact that several years have passed does not necessarily mean those questions cannot be investigated.

5. Is cerebral palsy always caused by medical negligence?

No.

A diagnosis or poor medical outcome by itself does not establish negligence. There can be congenital, genetic and other medical reasons for a child's condition that could not have been prevented.

The legal question is whether the care provided fell below the appropriate standard and, if so, whether that failure caused an injury that otherwise would not have occurred.

Determining that usually requires careful review of the medical records and opinions from appropriately qualified medical experts.

6. Is it too late to look into what happened during my child’s birth?

Not necessarily.

Limitation periods can be different when the injured person is a child. The birth injury lawyers at Weir Bowen have spoken with families many years after a child's birth, particularly where the full extent or possible cause of an injury only became apparent as the child grew older.

There are good reasons not to delay, however. Records can become harder to obtain, memories fade and witnesses may become unavailable.

If you're wondering whether too much time has passed, it is better to ask than to assume.

7. What happens if I call Weir Bowen because I’m concerned about my child?

You don't need to call us with a diagnosis of medical negligence or a complete set of medical records.

Often, parents contact us because something simply doesn't make sense to them. Sometimes someone else — a family member, friend or healthcare professional — has suggested that they ask questions.

We can listen to what happened and determine whether the circumstances warrant further investigation. Where appropriate, that can include obtaining and reviewing medical records and seeking opinions from independent medical experts.

For birth and neonatal injury claims, Weir Bowen works on a contingency fee basis. That means you are not paying a lawyer by the hour for the initial consultation or the time spent pursuing the claim. Legal fees are paid if a settlement or judgment is obtained.

A note about this information: These FAQ's provide general information only and are not legal advice. Every situation is different, and the law may apply differently depending on the circumstances. Legal deadlines apply, so you should not rely on this information to determine a limitation period or other deadline. If you have questions about your particular situation, we encourage you to reach out to us.