A birth injury refers to physical damage to an infant resulting not from something that happens during the labor and delivery process. A large percentage of birth injuries are caused by avoidable mistakes or negligence by health care providers. Although some birth injuries can be minor, others can result in permanent disabilities, affecting the child’s cognitive and/or physical function. West Virginia recognizes the right of parents to obtain legal compensation when their child suffers a birth injury caused by medical negligence. This page will outline the relevant West Virginia birth injury malpractice law and the value of these cases in West Virginia.
Examples of Common West Virginia Birth Injuries
Outlined below are some of the birth injuries that we see most frequently in West Virginia birth injury malpractice lawsuits.
Cerebral Palsy: cerebral palsy is a disability caused by damage to the brain during labor and delivery from lack of oxygen. This damage permanently impairs the ability of the brain to communicate with and control certain muscles in the body that are involved in movement such as walking. There are a number of complications that can arise during childbirth that can cause oxygen deprivation and lead to CP. Healthcare providers are obligated to prevent this from occurring by carefully monitoring the baby’s heart rate and intervening when a situation arises.
Erb’s Palsy: Erb’s Palsy is a condition that leaves a child’s arm partially immobile or paralyzed. It is caused by physical damage to the brachial plexus nerve junction (located where the neck meets the shoulders) during difficult childbirth. Damage to these nerves disrupts the brain’s ability to control movement of the arm and hand.
HIE: hypoxic-ischemic encephalopathy (HIE) or perinatal encephalopathy is a very serious type of injury to the baby’s brain that can result from significant complications or oxygen disruption during birth. Events such as a compressed umbilical cord, ruptured uterus, or placental abruption can cause this type of oxygen deprivation and result in HIE.
Bone Fractures – A fracture of the clavicle or collarbone is the most common fracture during labor and delivery. This can occur when the obstetrician pulls on the infant too hard or when the shoulder is forcefully pulled during a prolonged delivery.
West Virginia Birth Injury Malpractice Laws
When a baby suffers a birth injury in West Virginia due to negligence by the doctors or hospital staff during labor and delivery, both the child and the parents have the right to bring a medical malpractice lawsuit and get financial compensation. This section will briefly overview the applicable West Virginia medical malpractice laws.
West Virginia Statute of Limitations for Birth Injuries
If you are considering a birth injury malpractice lawsuit in West Virginia, you must be aware of the statute of limitations. A statute of limitations is a state law that requires a person to file a claim within a certain amount of time. The statute of limitations for birth injury cases in West Virginia is 2-years from the date of the injury (i.e., birth) or when the claimant knows or by reasonable diligence should have known about the injury. For most birth injury cases, the 2-year period in West Virginia will begin running from the date of birth or when the child is first diagnosed with a condition such as cerebral palsy.
Damage Caps on Birth Injuries in West Virginia
West Virginia has enacted laws that put a cap or maximum limit on the amount of certain types of damages that plaintiffs can get in medical malpractice cases. The three categories of damages available in a birth injury malpractice case are: (1) economic damages, (2) pain and suffering, and (3) punitive damages. West Virginia law imposes a strict cap on the amount of pain and suffering damages and punitive damages available in birth injury cases. The maximum amount recoverable for pain and suffering is $250,000 per occurrence. West Virginia Code section 55-7B-8.
There are certain exceptions or circumstances that can increase the damages cap in West Virginia. One major exception applies in cases involving death, permanent disfigurement, loss of a limb or organ, or permanent disability. When these special circumstances are present the damage cap increases to $500,000 for each occurrence. West Virginia also has a cap on punitive damages. Punitive damages in West Virginia are capped at 4 times the amount of compensatory damages or $500,000, whichever is more. West Virginia Code Section 55-7-29.
Settlement Value of West Virginia Birth Injury Cases
Birth injury malpractice lawsuits in West Virginia have a very high potential settlement value. The potential settlement value of a birth injury case is driven by 2 key factors: (1) the severity and permanency of the child’s birth injuries; and (2) the nature of the medical negligence and how difficult it will be to prove at trial. The more severe and permanent the injury the higher the potential value of the case will be.
West Virginia Birth Injury Settlements & Verdicts
Below are several verdicts and reported settlements from birth injury malpractice cases in West Virginia to better understand the potential range of values for you and your child’s claim.
$10,837,527 Verdict (2021): Child was diagnosed with severe cerebral palsy after suffering oxygen loss and hypoxia during labor and delivery. The defendant was a federally funded hospital. The parents brought a birth injury lawsuit alleging that the hospital staff were negligent in failing to promptly respond to clear signs of fetal distress and ordering an emergency C-section.
$8,500,000 Settlement (2016): Infant suffered HIE (hypoxic-ischemic encephalopathy) brain injury during birth at a federal funded hospital. The brain injury left him blind and caused spastic quadriplegic cerebral palsy (one of the most severe forms of CP). The child would require a feeding tube to eat. The birth injury lawsuit alleged that the delivery team at the hospital was negligent in administering Pitocin to stimulate labor but failing to closely monitor the mother’s response, then failing to intervene with an emergency C-section with things went badly.
$850,000 Settlement (2014): Infant reportedly sustained hypoxic ischemic encephalopathy (HIE) brain injury during the labor and delivery leading to her birth, reportedly as a result of delay in her delivery while she and her mother were under the care of the defendant OB/GYN. The lawsuit alleged that the defendant was negligent in failing to recognize and act on abnormal fetal heart monitoring strips which showed signs of rapid decelerations.
$575,000 Verdict (2002): Child was diagnosed with Erb’s palsy resulting in permanent partial paralysis of his right arm. Birth injury lawsuit alleged that the Erb’s palsy was caused by damage to the brachial plexus nerves caused by negligence by the delivery team at the hospital in failing to recognize and properly respond to complications (presumably shoulder dystocia, but the verdict summary doesn’t say) during labor and delivery.
Contact Us About West Virginia Birth Injury Cases
Our firm handles birth injury cases in West Virginia by working with partner firms at no additional charge to the client. Call us today for a free consultation about potential birth injury malpractice cases in West Virginia. Call us at 800-553-8082 or get a free online consultation.