Birth Injury Attorneys in Charleston, WV

Children are at their most vulnerable in the womb and immediately after birth. It is vital that medical professionals, whether obstetricians or ER doctors, follow accepted medical standards and procedures when caring for a mother, fetus or baby. We place a lot of trust in health professionals who care for us and our children, and when a preborn or infant does not receive the proper level of care, the child could have serious birth defects that will affect the rest of his or her life.

At Bailey, Javins & Carter, L.C., we understand how difficult it can be to see your child suffer an injury or birth defect, especially if it could have been prevented. Our attorneys will stand by your side and provide you with the advice, support and advocacy you need while bringing a medical malpractice lawsuit. For more than five decades, we have stood up for injury victims in West Virginia, and we have a successful track record with even the most complex cases. Contact our firm for a free consultation about your case.

Understanding Birth Injuries

Approximately five out of every 1,000 babies born in the United States sustain some form of birth injury. While some of these injuries may be minor and heal quickly, others can lead to long-term disabilities and severe complications. In many cases, birth injuries can be prevented with proper medical care and attention. However, when medical professionals fail to exercise due diligence, the consequences can be life-altering for both the newborn and their family.

Birth injuries in West Virginia can occur due to a variety of factors, including:

•       Excessive pulling or twisting of the baby during delivery.
•       Improper use of obstetrical tools such as forceps and vacuum extractors.
•       Delays or failures in performing an emergency C-section.
•       Drug-related negligence, such as overuse of Pitocin to induce labor.
•       Undiagnosed medical conditions in pregnant mothers.
•       Failure to monitor the mother and baby’s health before and during labor.
•       Malfunctioning medical devices.

Understanding the different types of preventable birth injuries in West Virginia can help parents recognize signs of medical malpractice and seek the justice and compensation they deserve.

Common Types of Preventable Birth Injuries

1. Brachial Plexus Injuries (Erb’s Palsy and Shoulder Dystocia)

The brachial plexus is a network of nerves that control movement and sensation in the shoulders, arms, and hands. Damage to this nerve cluster can result in conditions such as Erb’s palsy and shoulder dystocia, which can cause partial or complete paralysis in the affected limb.

Causes:

•       Excessive pulling on the baby’s head and neck during vaginal delivery.
•       Improper use of forceps or vacuum extractors.
•       Breech delivery complications.
•       Large baby size (macrosomia) leading to shoulder dystocia.

Symptoms:

•       Weakness or lack of movement in one arm.
•       Loss of grip strength.
•       Limited range of motion.
•       Arm bent at an awkward angle.

2. Cerebral Palsy

Cerebral palsy is a neurological disorder affecting muscle control, coordination, and posture. It is often caused by brain damage due to oxygen deprivation (hypoxia) during childbirth.

Causes:

•       Prolonged labor leading to oxygen deprivation.
•       Delayed C-section when the baby is in distress.
•       Maternal infections left untreated during pregnancy.
•       Excessive use of labor-inducing drugs, such as Pitocin.

Symptoms:

•       Muscle stiffness or floppiness.
•       Poor motor coordination.
•       Delayed developmental milestones (e.g., sitting, crawling, walking).
•       Difficulty swallowing or speaking.
•       Seizures.

3. Brain Injuries Due to Oxygen Deprivation

A lack of oxygen to the brain (hypoxic-ischemic encephalopathy) can cause severe cognitive and physical disabilities, including intellectual impairments, learning disabilities, and motor dysfunctions.

Causes:

•       Umbilical cord complications (e.g., cord prolapse or wrapping around the baby’s neck).
•       Placental abruption.
•       Failure to monitor fetal distress.
•       Delayed emergency C-sections.

Symptoms:

•       Weak reflexes.
•       Low Apgar scores.
•       Difficulty breathing.
•       Seizures within the first 24 hours of birth.

4. Spinal Cord Injuries

Spinal cord injuries can occur during a difficult delivery if excessive force is applied, leading to nerve damage and potential paralysis.

Causes:

•       Misuse of forceps or vacuum extractors.
•       Incorrect fetal positioning.
•       Excessive traction on the baby’s head or neck.

Symptoms:

•       Loss of muscle control.
•       Lack of movement or reflexes in the lower or upper limbs.
•       Difficulty breathing.

5. Fractures and Mechanical Trauma

Fractures, particularly clavicle fractures, can occur when excessive force is used during birth.

Causes:

•       Difficult or prolonged labor.
•       Breech births.
•       Large birth weight leading to delivery complications.

Symptoms:

•       Swelling, bruising, or pain in the affected area.
•       Limited movement in the affected limb.
•       Noticeable lump in the fractured area.

6. C-Section Injuries

A poorly executed C-section can lead to serious injuries such as skull fractures, brain damage, and facial nerve injuries.

Causes:

•       Delay in performing an emergency C-section.
•       Surgical errors during the procedure.
•       Inadequate monitoring of fetal distress.

Symptoms:

•       Visible bruising or swelling on the baby’s head.
•       Facial asymmetry or paralysis.
•       Developmental delays.

Recognizing Birth Injuries

A birth injury is not always immediately noticeable. Hospitals may be reluctant to acknowledge errors, so parents should be aware of warning signs, including:

•       Difficulty feeding, sucking, or swallowing.
•       Excessive drooling.
•       High-pitched crying.
•       Extreme fussiness.
•       Arching of the back.
•       Skull fractures or bruising.
•       Lack of energy or sluggish movement.

Legal Recourse for Birth Injuries

The birth of a child should be a joyous occasion, but when medical negligence results in a preventable birth injury, the consequences can be devastating for both the newborn and their family. Birth injuries caused by errors during labor and delivery can lead to lifelong complications, including physical and cognitive impairments. Families facing such challenges may seek legal recourse to secure compensation for medical expenses, emotional suffering, and other related damages. Understanding the legal options available can help parents take the necessary steps to ensure their child receives the care and support they need.

Establishing Medical Negligence

To pursue a birth injury claim, it must be established that medical negligence occurred. This typically involves proving that the healthcare provider—whether a doctor, nurse, or hospital staff—failed to meet the accepted standard of care. Common examples of medical negligence in birth injury cases include:

•       Failure to monitor fetal distress
•       Improper use of forceps or vacuum extraction
•       Delayed or incorrect response to umbilical cord complications
•       Failure to perform a timely cesarean section
•       Medication errors during pregnancy or labor

Medical malpractice claims require strong evidence, including medical records, expert testimony, and documentation of the injury’s impact on the child’s life. A skilled birth injury attorney can help gather and present this evidence effectively.

Types of Damages Recoverable

When a birth injury occurs due to medical negligence, the affected family may seek various types of damages to cover financial, emotional, and punitive losses.

Economic Damages

Economic damages aim to compensate for tangible financial losses resulting from the injury. These may include:

•       Medical expenses – Costs for immediate and long-term medical treatment, including surgeries, hospital stays, medications, and physical therapy.
•       Future medical costs – Ongoing care such as rehabilitation, specialized therapy, and potential future surgeries.
•       Lost wages – Compensation for parents who must leave work or reduce their working hours to care for the injured child.
•       Special education and assistive devices – Costs associated with special schooling, mobility aids, or adaptive equipment needed to improve the child’s quality of life.

Noneconomic Damages

These damages compensate for the emotional and psychological toll the injury has on the child and family, including:

•       Pain and suffering – Physical pain endured by the child as a result of the injury.
•       Emotional distress – Mental anguish experienced by the child and parents due to the trauma of the injury.
•       Loss of enjoyment of life – Reduced ability to participate in normal childhood activities and experiences due to the injury.

Punitive Damages

In cases where medical professionals acted with extreme negligence or recklessness, the court may award punitive damages. These damages are intended to punish the responsible party and deter similar misconduct in the future. While punitive damages are not awarded in every case, they serve as a means of holding medical providers accountable for gross negligence.

How is Medical Negligence Defined in West Virginia?

Medical negligence, commonly referred to as medical malpractice, occurs when a healthcare professional deviates from the accepted standard of care, resulting in harm to a patient. In West Virginia, medical negligence is defined and governed by specific statutes and legal precedents that outline the responsibilities of healthcare providers and the rights of patients.

Definition of Medical Negligence in West Virginia

Under West Virginia law, medical negligence is established when a healthcare provider fails to exercise the level of care, skill, and learning expected of a reasonably prudent healthcare provider in the same or similar circumstances. This deviation must directly result in injury or death to the patient. The key elements to establish a medical negligence claim in West Virginia include:

1. Duty of Care: The healthcare provider owed a duty to the patient.
2. Breach of Duty: The provider breached this duty by failing to adhere to the accepted standard of care.
3. Causation: The breach directly caused injury or harm to the patient.
4. Damages: The patient suffered quantifiable damages as a result of the injury.

Statute of Limitations

In West Virginia, patients must file a medical malpractice lawsuit within two years from the date the injury was discovered or reasonably should have been discovered. However, all claims must be filed within ten years of the date of the alleged malpractice, regardless of when the injury was discovered.

Pre-Litigation Requirements

Before initiating a medical malpractice lawsuit in West Virginia, plaintiffs are required to serve a notice of claim on each prospective defendant at least 30 days prior to filing the suit. This notice must include a screening certificate of merit executed under oath by a qualified healthcare provider, stating that the standard of care was breached and that this breach resulted in injury. There are exceptions to this requirement, such as cases involving foreign objects left in the body or other scenarios where negligence is evident.

Damage Caps

West Virginia imposes caps on non-economic damages in medical malpractice cases, as outlined in §55-7B-8 of the West Virginia Code. Non-economic damages refer to compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary injuries. The cap is set at $500,000 for cases involving:

1. Wrongful Death: Loss of life due to medical negligence.

2. Permanent and Substantial Physical Deformity: Significant disfigurement resulting from malpractice.

3. Loss of Use of a Limb or Bodily Organ System: Permanent loss of function due to negligence.

4. Permanent Physical or Mental Functional Injury: Injuries that permanently prevent the patient from independently caring for themselves or performing life-sustaining activities.

For other medical malpractice cases not involving the above conditions, the cap on non-economic damages is $250,000. These caps are adjusted annually for inflation, so the exact dollar amounts may vary slightly over time.

It’s important to note that these caps apply only to non-economic damages; there is no cap on economic damages, which cover quantifiable losses such as medical expenses and lost wages.

Expert Testimony

West Virginia law requires that expert testimony be presented to establish the standard of care and to demonstrate how the defendant’s actions deviated from that standard. The expert must be qualified in the same or a substantially similar field as the defendant and must be familiar with the standard of care applicable to the case.

Comparative Fault

West Virginia follows the doctrine of modified comparative fault. This means that if a patient is found to be partially at fault for their injury, their compensation will be reduced by their percentage of fault. However, if the patient’s fault is determined to be 50% or more, they are barred from recovering any damages.

Joint and Several Liability

In cases involving multiple defendants, West Virginia employs a modified joint and several liability rule. A defendant found to be 30% or less at fault is only responsible for their proportionate share of the damages. However, if a defendant’s fault exceeds 30%, they can be held jointly and severally liable, meaning they may be responsible for the entire amount of damages, regardless of their individual share of fault.

Speak to Birth Injury Lawyers in WV Today

At Bailey, Javins & Carter, L.C., we understand how devastating it is to watch your child suffer from an injury or birth defect—especially when it could have been prevented due to medical negligence. The emotional, physical, and financial toll on families in these situations can be overwhelming, and you deserve justice and compensation for the harm caused.

Our team of dedicated birth injury lawyers in WV are here to guide you through the complex legal process of filing a medical malpractice lawsuit. We will stand by your side every step of the way, providing expert legal advice, compassionate support, and aggressive advocacy to help you hold negligent medical professionals accountable. Whether your case involves a birth injury, misdiagnosis, surgical error, or any other form of medical negligence, we have the experience and resources to build a strong case on your behalf.

For more than five decades, Bailey, Javins & Carter, L.C. has been a trusted advocate for birth injury victims throughout West Virginia. We have successfully handled some of the most challenging medical malpractice cases, securing favorable outcomes for our clients. Our firm has a deep understanding of West Virginia’s medical malpractice laws, and we know how to fight for the maximum compensation available for medical expenses, pain and suffering, long-term care, and other damages.

If your child has suffered due to medical negligence, you don’t have to face this battle alone. Let us help you seek the justice you deserve. Contact our firm today for a free consultation to discuss your case and learn about your legal options.