Does your child need a lawyer for a medical error?

Pediatric malpractice is not limited to negligence by pediatricians. Instead, "pediatric malpractice" or "pediatric negligence" is when a healthcare provider caring for a baby, child, or teenager fails to act as a reasonable doctor, nurse, hospital or other provider would act in the same or similar circumstances, and the child is injured as a result.

Any healthcare provider that negligently harms a baby or child can be sued for malpractice. The most frequently sued doctors are (according to this malpractice insurance company study):

• Obstetricians (OBs): 24%
• Pediatricians: 15%
• Orthopedic surgeons: 7%
• Emergency medicine doctors: 6%
• Family practice physicians: 6%
• Radiologists: 3%
• General surgeons: 3%
• Anesthesiologists: 3%
• ENTs: 3%
• Psychiatry: 2%
• All other specialties.

There are many types of injuries to children that are caused by medical malpractice. Our pediatric negligence lawyers see these injuries most commonly in each age group:

• Neonates (less than one month): Neonatal malpractice claims usually arise from negligence during the prenatal period or during labor and delivery. We call these "birth injury" lawsuits. Because the malpractice happens during pregnancy, labor and delivery, obstetricians (OBs) are usually the doctors that commit the errors. Injuries to a baby that are caused by medical malpractice usually have devastating consequences.

Errors made during pregnancy usually result in a medical condition in the baby not getting diagnosed early, and necessary treatment is delayed at birth.

Errors made during labor and childbirth usually involve failing to monitor the baby before it is born, failing to do a c-section, or failing to react properly when the baby gets stuck during delivery (usually due to shoulder dystocia).

One thing that most young babies injured by doctors have in common is that there is usually a lack of oxygen to the baby. This can result in brain injury such as hypoxic ischemic encephalitis or cerebral palsy.

• Infants (1 - 11 months): Babies are usually treated by pediatricians. Therefore, when a baby is injured by malpractice, it is usually the pediatrician that was negligent.

Common cases against pediatricians include failing to send the baby to the hospital for illness, failing to identify and treat congenital issues, failing to identify and treat illness or disease, failing to refer to other specialties, and failure to run appropriate diagnostic testing.

• Children and Teenagers: Children and teenagers have the same common claims against pediatricians. But because they also see other specialties, such as orthopedic surgeons, general surgeons, or emergency medicine physicians, we see malpractice cases against those specialties as well.

Some common claims in this age group include failing to appropriately treat bone and joint injuries, failing to timely diagnose illness such as appendicitis, surgical errors, medication errors and missed cancer diagnoses.

It is important to contact us as soon as you think you have a case. This helps us make sure that evidence, such as 911 tapes, get preserved. It also lets us help you document your child's injuries, recovery process, and limitations.

It also takes a long time to get a medical malpractice case ready to file. We need to gather medical records, obtain expert reviews, issue a Notice of Intent to Sue if we do not think we can get a settlement pre-suit, and get the case ready for litigation. (You can read more about the process in our article, Med Mal 101.)

But if you didn't call us right away, don't worry. Most pediatric malpractice cases are initiated within two years of the date of negligence. However, the statute of limitations on cases for children can be longer than the standard two year deadline applicable to adult medical malpractice claims. Many people assume that they have until their child's 18th birthday to sue. That is not correct.

In Michigan, if the child was under age 8 at the time of the malpractice, the lawsuit must be initiated before the child's 10th birthday or within 2 years of the date of malpractice or within 6 months of the time the claim should have been discovered. If the child over the age of 8, the case must be initiated within 2 years of the malpractice of 6 months of discovery of a potential claim.

However, if the injury was to a reproductive organ and the child is under 13 at the time of malpractice, the case can be commenced on or before the child's 15th birthday, 2 years of the date of malpractice, or 6 months from discovery of the claim, whichever is latest.

See MCL 600.5851 and MCL 600.5838a.

Most malpractice that causes injury to newborns, not surprisingly, occurs on the labor and delivery floor of the hospital. Most other pediatric malpractice occurs in doctor's offices. The emergency department and ambulatory surgical centers round out the most common locations for pediatric malpractice.

Almost half of all injuries to newborns are brain injuries, almost always due to hypoxia or asphyxia (i.e., lack of oxygen). Injuries to arms account for almost 20% of injuries to newborns. This is due to brachial plexus injuries that occur when a baby gets stuck in the birth canal and is forcefully delivered.

Injuries caused by negligence of healthcare providers during a child's first year of life are most often brain injuries. Injuries to the lungs and heart are also common.

Brain injuries are also the most common injury caused by medical negligence in children and teenagers. These injuries can be caused by errors such as:

• Surgical mistakes that cause excessive bleeding
• Misdiagnosis or delay in diagnosis, such as an infection that causes sepsis
• Anesthesia errors
• Medication errors

Orthopedic injuries become more common as the child ages. Orthopedic errors that we often see include failure to diagnose and treat a bone or joint infection, or surgical mistakes during bone or joint repair.

The amount of money your child might receive from a settlement or jury verdict depends on a lot of things. Generally, the worse the injury, the more money is available. This is especially true where the injury is permanent or affects the child's day-to-day life and development over a long period of time. If the injury is minor and the child fully recovers, the case might not have enough value to cover the costs of experts.

The settlement value of a case also depends on the strength of the case. Blatant errors that clearly cause an injury have higher value than cases where the standard of care is fuzzier or there are multiple factors that contributed to the injury or it is difficult to prove the result would have been different.

Recoverable damages fall into two broad categories: economic and non-economic. Economic damages include loss of earning capacity (i.e., if the child's injury will permanently prevent the child from working or limit what the child can do), past medical expenses, future care expenses, the cost of medical equipment, and sometimes, compensation for parents that cannot work because they need to care for the child. (Currently, a parent cannot be compensated for their own damages arising out of the loss of their relationship with their child, but we are working to change that!)

Non-economic damages are what people usually call "pain and suffering." Damages for pain and suffering are limited in Michigan. Most cases that do not involve brain injuries are capped at $537,900. Severe injuries that affect (i) the brain (such that the child has permanently impaired cognitive capacity making him or her unable to make daily life decisions or perform activities of normal daily living), (ii) the spinal cord or brain resulting in paralysis, hemiplegia or quadriplegia, or (iii) an injury to a reproductive order that results in the inability to procreate, have a higher cap of $960,500.

Your child's "blackboard" number is the total amount of economic and non-economic damages that your child can legally recover. The settlement value is then determined by consideration of the above factors.