Is BPI always the doctors fault? (legally)

[RyansMom]

I know we shouldn't blame ourselves for BPI, (as I've read on this site), but my question is more of a legal one? It sounds like everyone sues over this, right? Do we always win? Are there situations that we can't win in court? I'd be curious to read about the legal process from those that have gone thru it. We are just starting to think about suing, and I'm wondering if it is a waste of time, or do we always win, what are instances that are a slam dunk in court, what about the "iffy ones". etc. Suposedly I had NO signs that I was going to have a big baby, so midwife (I didn't use a doctor) didn't encourage C-section, however, I'm only 5'2, was 2 weeks overdue, and had 3 stress tests (one the day before) which should of shown them how big he was, right? Also, recomendations for good attnys would be helpful? We live in SF, CA area.
Thanks guys! Hope to get a lot of replies, as haven't read much about these questions on the boards yet? Also, if you have a place to point us to, I'd like that as well!!!

[admin]

You have asked a difficult and complex question. No bpi is not always the doctors fault and many cases do not win at trial. BPI cases can be seperated into several groups. First, cases where because of risk factors, such a prior bpi, fetal macrosomia coupled with gestational diabetes, or some other factors, the ob/gyn should have planned a ceserian section. The second group of cases are situations where there was not the need to plan a cesearian section, but die to events during the labor such as prolonged second stage of labor, or the failure of the baby to descend, there should have been the decision to perform a c-section. The third group of cases concern situations where there was no medical reason for a cesearian section, but during the delivery, after the recognition of the shoulder dystocia, the ob/gyn failed to take the appropriate maneuvers, such as woods maneuver or a McRoberts maneuver, and applied excessive traction to the baby's head causing the brachial plexus injury.

There are other senarios where a physician can be negligent, in particular with the use of a vacuum extraction or forceps. There are also instances where all of the standard maneuvers are performed and the baby is still injured and we cannot find basis for a case. Again, this is a simple answer to a complex question.

If you have additional questions, please do not hesitate to contact me. I would be pleased to provide you with information and answer any questions you may have.

Ken Levine
Klevine@klevinelaw.com
617-566-2700

[phaliscak]

Hi Ryans mom,

I am 5'2 and went 2 weeks past my due date as well. I went through 4 hours of pushing before Michael was born. Went to court and won this past December. Not all cases win and a lot loose. I belive we won because we had our birthing video. Without the video the jury would have never known what really happened. I don't think there is a sure thing with going to court. You are at the mercy of complete strangers and how well your or their lawyers get their point across.. it's a role of the dice and the only thing you have control over is what you will wear to court that day nothing else. We live in New Jersey so i can't recommend the law firm I had. Here is the web site address anyway in case you want to look. www.njatty.com we had David Fried as our Attorney. He was awesome.

Patty

[admin]

If the child is injured at birth I believe it is the docs fault. You can get this injury in car accidents and through sports, disease etc. But the doc failed to estimate the weight it is their job to do so. It is also failure to find out if you are at risk with diabetes etc. They should of taken caution since you were overdue and at least gave you an ultrasound because babies usually gain about a pount a week the last 3 weeks before you are due(37 weeks). There may be docs on here that try to give you negative advice just so you will not sue. If you believe the doc was negliagent have an expert look over your records. Change doctors first so they cannot change your records, and get a copy of those record so you have proof just in case they try to change them. They did with me right in front of me. ANn

[m&mmom]

Melanie's bpi wasn't the ob's fault. There was no deviation from the standard of care at all. With Matthew's bpi it was and we did go the legal route. We decided to settle the case instead of going through trial.

Cindy

[admin]

Was your child a large baby? HOw did this injury happen if it was not his/her fault? Did she touch your baby, what had to be done? Sorry so many question's. I just get angry sometimes that I wonder why you think it's not her fault. It is her job to make sure baby's ok, and to deliver him with no injuries. THere is no room for mistakes here. When I taught preschool and a kid choked, I was trained to do CPR and got paid to do my job, there is no room for mistakes. I have no soft-spot for my old doctor and I certainly would never be so careless as to let him/her care for your child again. I am not sure anyone else here can say that they do not believe the doc was not at fault. Was she/he a family friend? Sorry if I sound so insulting, I just hate my doc, long story.

[m&mmom]

Ann,
Melanie was 8lbs 12oz. With the measurement on the ultrasound she was estimated to be at 7lbs. There was no shoulder dystocia, no pulling on the head, I did not have gestational diabetes. I pushed for 3.5 hours to get her out. I spoke with the ob about this afterwards. She said it was getting to the point she was thinking about the c-section because Melanie was not coming down. As an ob she has to weigh how long to keep pushing or the risks of a c-section. Everything you do in life involves risks. Melanie was born with a slight stretch of C5&C6. She recovered by 9 weeks. To be honest I would tend to agree that she made the right decision. I had no tear from delivering her so I could handle delivering her. She was not a family friend. After Melanie I decided to switch doctors because of her office receptionist and ended up delivering a child who has a severe injury. I know the difference of a child getting stuck in you. Matthew was stuck for 10-15 minutes. There are times when it is the doctors fault and others it's not, just as with everything else in life. People make mistakes - nobody's perfect. It's unfortunate but it's just a fact of life. Acceptance and forgiveness is what has helped me move on since Matthew's injury. Holding onto hate is very unhealthy.

Cindy

[Connie&Andrew]

Just wanted to let you know that not everyone sues. We decided not to seek any litigation against the doctor. I know there are also others who did not choose to sue. I think as with everything every case is different and every person is different. You have to decide what is best for you and for your child. I believe that in many cases negligence is involved, but sometimes it is just something that happens and you just have to go on with life. My son is just turning 4 tomorrow. (I was 38 when I delivered him and I just had a baby girl 4 months ago at 3 months short of 42. She was delivered by c-section and is fine) My son has had the mod quad surgery and is doing pretty well. We are still in therapy once a week, but he is a normal little 4 year old boy. Good luck with your decisions and with your little one.

Connie

[Francine_Litz]

I didn't plan on suing.... not until I realized just HOW negligent my midwives and doctors were - from just about the day I got to their office to even what happened after the birth. Maia and I are very lucky to be alive and quite honestly - I don't know how we both survived the birth. Why licenses are not revoked in these cases is beyond me.

[m&mmom]

Francine,
I have to agree with you on that point. We weren't sure what we were going to do in Matthew's case until we started finding things out. Matthew was born not breathing, I was on the edge of going into shock during delivery, absolute nightmare. If I would have been diagnosed with gd during his pregnancy things may have gone better. If my ob didn't get a hurt ego because a the high risk consult he sent me to said no c-section things may have been different, but on the other side they may have come out worse. I did get an apology which from what I read here most women do not get. He apologized to everyone, me, hubby, my family and admitted he made the wrong call. We waited until Matthew was finally home from the hospital, started looking at what happened then went from there.

I think if more licenses were revoked at the proper times then medical malpractice would go down. I'm working on an article to submit to the papers about this but I haven't had the time to polish it up.

Cindy