Whilst we all hope for positive outcomes when it comes to pregnancy and childbirth, the fact remains that medical negligence surrounding birth is, unfortunately, very much a reality. When a birth injury is the result of such medical negligence, you have a right to file a medical malpractice claim.

Cerebral Palsy, injuries stemming from a C-section or a premature birth, stillbirth, oxygen deficiency, and Erb’s Palsy are life-altering conditions that, when a result of negligence, you have every right to pursue justice for. Dreaming of Baby speaks with Annamarie Bondi-Stoddard, Esq., Managing Partner of the law firm Pegalis & Erickson, LLC and Ilene Schwartz, RN, BSN, also of Pegalis & Erickson, LLC on what constitutes medical negligence and what parents should know about the medical malpractice claim process.

Daniela: Good afternoon and a warm welcome to our guests today! We have with us Annamarie Bondi-Stoddard, Esq., Managing Partner of the law firm Pegalis & Erickson, LLC and Ilene Schwartz, RN, BSN, of Pegalis & Erickson, LLC, with whom we will be delving into the subject of medical negligence.

Ilene Schwartz, RN, BSN: Hello! My name is Ilene Schwartz, glad to be here today with you all. My background is in obstetrical nursing. I have worked in high-risk anti-partum, post-partum, and labor and delivery floors as well as an OBGYN office.
Annamarie Bondi-Stoddard, Esq.: Hello, and thanks for having us. I am Annamarie Bondi-Stoddard, Managing Partner of Pegalis & Erickson, LLC. We have represented many moms and their babies throughout the years.

What is medical negligence?

Daniela: Thank you for this introduction. We’re very much looking forward to our conversation today. To present a better background to our readers, and going straight to our subject: What is medical negligence?

Annamarie Bondi-Stoddard, Esq.: Medical negligence is an avoidable mistake that causes harm. It is a failure to use reasonable care under the circumstances, which causes an otherwise-avoidable injury. It is also called a departure from the standard of care.

Daniela: Ilene mentioned high-risk cases; is medical negligence related to pregnancy and delivery more common in high-risk cases?

Annamarie Bondi-Stoddard, Esq.: Not necessarily. If the patient is considered a high-risk patient, she should be seen by a maternal-fetal medicine specialist, rather than a regular OB-GYN.
Ilene Schwartz, RN, BSN: There are medical specialists to address any and all high-risk issues.

Risks surrounding birth

Daniela: So, looking into various delivery scenarios, what would be the possible risks in terms of a vaginal birth, a C-section birth, and a vaginal birth after a c-section (VBAC)?

Annamarie Bondi-Stoddard, Esq.: VBACs run the risk of uterine rupture in the Mom. That can cause injury to both the mom and the baby. A VBAC should only be attempted for certain patients.
Ilene Schwartz, RN, BSN: Vaginal birth can cause a nerve injury to the baby if the baby is too large for the mom’s pelvis. C-sections run the risk of infections for the Mom, post-delivery.
Annamarie Bondi-Stoddard, Esq.: If a C-Section is necessary to ensure the health of the baby, risks to the Mom are minimal. Babies should be monitored carefully during labor, at every point, to ensure the baby’s well-being.
Ilene Schwartz, RN, BSN: Quick intervention becomes critical and we often see cases where a C-section was delayed, causing harm.

What constitutes medical negligence in the birth setting?

Daniela: Thank you for this overview. Would such cases of delay leading to harm constitute medical negligence? What exactly would be considered as medical negligence in the birth setting?

Annamarie Bondi-Stoddard, Esq.: Yes. A failure to monitor the baby’s heart rate properly and intervene in a timely manner can lead to oxygen deprivation in the baby. The purpose of fetal heart rate monitoring is to assess fetal well-being which means how the baby is making it through the birth process. Sometimes, for different reasons, the baby is unable to tolerate the “trauma” of vaginal delivery. It is the job of the medical personnel to be on top of any issues which the baby may be having.

Annamarie Bondi-Stoddard, Esq.: “Medical negligence is an avoidable mistake that causes harm. It is a failure to use reasonable care under the circumstances, which causes an otherwise-avoidable injury. It is also called a departure from the standard of care.”

Daniela: And are there any other scenarios which could be defined as medical negligence? What about the mother’s well-being?

Annamarie Bondi-Stoddard, Esq.: Yes, several. Pre-eclampsia is a condition in which the mother develops high blood pressure which can be life-threatening. The cause of this condition is not known. Delivery is the only “cure”. This poses issues for both mother and child.
Ilene Schwartz, RN, BSN: When the mother’s health is threatened, the baby’s health is automatically threatened.
Annamarie Bondi-Stoddard, Esq.: Proper monitoring of blood pressure, along with medication to lower blood pressure and also medication to improve the baby’s condition so that a delivery can be accomplished before there is any permanent harm either to mom or baby, is the goal of proper obstetrical care.

Daniela: Based on the scenarios and conditions that you have both so aptly described, what would classify as a negative birth outcome? In connection with this, what would constitute a childbirth injury, for both the mother and the baby?

Annamarie Bondi-Stoddard, Esq.: A negative birth outcome involves injury or death to mother or child. Some negative outcomes would include rupture of the uterus or post-partum hemorrhage in the mom. Childbirth injury includes Erb’s Palsy which is an injury to the nerves in the baby’s neck. This is caused by pulling on the baby’s head such as when the baby’s shoulder gets stuck. Oxygen deprivation to the baby can result in very significant damages which are life-altering.

Daniela: And based on your own experience, what are the medical malpractice cases that you deal with the most – from where do they stem?
Annamarie Bondi-Stoddard, Esq.: The good news is that we are seeing less and less birth-related injuries to both mom and baby. Obstetrical care has advanced through the decades, as a result of advances in medicine, technology, and testing. Additionally, what was learned from past medical negligence cases has helped medical practitioners develop safer practices.
Ilene Schwartz, RN, BSN: This helps healthcare providers anticipate problems before they occur.
Annamarie Bondi-Stoddard, Esq.: Right now, we are seeing a number of Erb’s Palsy cases. We also see more Gestational Diabetes cases today. This contributes to larger babies, which increases their chance of getting stuck in the birth canal. In such situations, it is imperative that the Gestational Diabetes is controlled through medication and diet, and that the fetal weight is closely monitored. If necessary, the Mom should be counseled regarding C-section as opposed to a vaginal delivery.

Daniela: It’s very positive to hear that there are today less birth-related injuries. You note that most cases concern Erb’s palsy and more Gestational Diabetes – if there is a negative birth outcome due to gestational diabetes, what is studied to determine if this is a case of medical negligence or not?

Annamarie Bondi-Stoddard, Esq.: Uncontrolled diabetes in moms can lead to placental insufficiency which means that the placenta is not doing the proper job for the baby to provide oxygen and nutrients. Therefore, proper monitoring of fetal well-being through bio-physical profiles which gives information as to how the baby is doing in utero is necessary. If such testing is not done, or is done but not properly interpreted, or acted upon in a timely manner, that can be some evidence of medical negligence.
Ilene Schwartz, RN, BSN: There is evidence after birth. The pathologist studies the placenta and sees how well it was functioning.

Daniela: You note that the placenta is studied – is this retained for a long period post-birth then, or it is the mother who has to request that it is retained?

Annamarie Bondi-Stoddard, Esq.: The physician sends it to pathology if there were ANY questions at all about baby’s health. This includes but is not limited to a low Apgar score, if the baby is blue, and many other reasons.
Ilene Schwartz, RN, BSN: The pathology is done within a day of all C-sections as it is a surgical procedure.

Ilene Schwartz, RN, BSN: “There is evidence after birth. The pathologist studies the placenta and sees how well it was functioning.”

What you should know about the medical malpractice claim process

Daniela: Thank you for clarifying – whilst we all hope for positive outcomes, it’s good that parents-to-be are informed of this. Looking into the technicalities now, how would the claim process work in the case of a negative birth outcome? What should parents know?

Annamarie Bondi-Stoddard, Esq.: We encourage every patient to be proactive. Ask questions, get second-opinions, keep a health journal, get copies of your test results, and be an active member of your own healthcare team. In order to determine if there was negligence which caused an avoidable injury to bring a lawsuit, we obtain all the relevant medical records, testing, studies, and evaluate them fully. This review must be done with multiple medical experts such as an OB-GYN, maternal-fetal medicine specialists, neonatal doctors, and sometimes radiologists, and pathologists. We identify where negligence occurred and what should have been done to prevent harm.

Daniela: So, for the parent who has experienced such medical negligence, either in terms of the mother or the baby, what is the procedure they should follow? What would be the first step so to speak?

Annamarie Bondi-Stoddard, Esq.: If there is ever a question about anyone’s medical care and treatment, it is always smart to be proactive and call an experienced medical malpractice attorney to discuss your questions. There should never be a fee for a consultation, and never delay asking your questions because there are time limits in which to pursue a case.

Daniela: Thank you for this insight – you speak of time limits – are these streamlined or vary according to the case?

Annamarie Bondi-Stoddard, Esq.: They vary according to the state you live in, the entity you were treated at, and other state laws. This is why it is important to seek counsel as soon as you suspect something was done wrong.

Daniela: Thanks for clarifying. Once counsel has been sought and it was identified that there is indeed a case to pursue, what happens next?

Annamarie Bondi-Stoddard, Esq.: A lawsuit would be filed against the pertinent medical providers. After filing in court, the discovery process begins which can take some time. Once the discovery process is complete, your case can be trial-certified. Most cases do not go to trial, rather they are settled. This means the client does not have to endure the courtroom process.

Daniela: And what should be expected time-wise? Do such cases normally take long?

Annamarie Bondi-Stoddard, Esq.: It really depends on the situation and the state. Here in New York, we generally see cases taking a few years.

Daniela: Thank you for answering our questions today, Annamarie and Ilene. On a final note, what would be your advice to parents concerned with or who believe they have experienced medical negligence?

Annamarie Bondi-Stoddard, Esq.: Thank you for helping us to educate! Our final advice would be to not hesitate to call an experienced medical malpractice law firm. There is nothing to lose in getting your questions answered and there is peace of mind to gain!

Daniela: Great, thank you for the insight you have shared with us today; it’s been a truly enlightening discussion and one that is important to be had.

Read more about medical negligence in the birth setting via this Pegalis & Erickson link.

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