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What Does a Birth Injury Case Involve?

Cerebral Palsy and Doctor Errors

Child Damages During Labor and Delivery

What Is Meant by ‘Birth Injury’?

Birth Injury Case Fees and Costs

Q. What is meant by “birth injury?”

A. Birth injuries generally concern death or serious injury to a newborn infant. Labor and delivery is a critical time and inadequate monitoring, evaluation, or delivery techniques may result in neurological injury to the baby. In some instances, the baby does not receive an adequate supply of oxygen (whether during labor, delivery, or immediately after delivery) and as a result suffers brain injury. Other forms of birth injury may involve skull fractures or other forms of trauma resulting from the use of forceps and vacuum extraction devices as well as injuries affecting the baby’s use of his or her arm caused by overly aggressive traction on the baby’s head during delivery (Erb’s palsy or brachial plexus palsy).

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Q. What does a birth injury case involve?

A. Birth injury cases are medical negligence cases, and the same issues and concepts apply. Since birth injury cases often involve severely handicapped children, great emphasis is placed upon developing evidence concerning the future lifetime costs for medical expenses, rehabilitation, attendant care, adaptive equipment, and other needs which will be required during the lifetime of the injured child.

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Q. How quickly should I contact an attorney?

A. To be safe, you should talk to an attorney as soon as possible, especially if the injuries are severe or a death has resulted. All too often valuable evidence disappears, witnesses move, memories grow dim, and the practical ability to prove your case may diminish.

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Q. Can medical malpractice cause cerebral palsy?

A. There are many different causes of cerebral palsy (commonly referred to as “CP”). Cerebral palsy may be genetic, it may be caused by problems early in pregnancy, it may result from prematurity, and it may result from medical malpractice. To determine whether cerebral palsy has resulted from medical negligence, a thorough evaluation of the prenatal records, labor and delivery records, fetal monitor strips, newborn records, and records from subsequent treating physicians are generally necessary.

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Q. What information is important in determining whether my child suffered damage from an inadequate supply of oxygen during labor and delivery (hypoxia/asphyxia)?

A. There are a multitude of factors which are significant. Some of these include the following: low Apgar score at delivery, seizures after delivery, low pH, abnormal MRI/CT, NICU placement, abnormal kidney function, prolonged labor, infection, prolonged rupture of membrane, abnormal labor pattern, abnormal fetal monitoring strips, bleeding, and need for Caesarean Section.

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Q. What about attorneys fees and the costs of pursuing my case?

A. The Brad Hendricks Law Firm usually takes birth injury cases on a contingency basis although retainer fees at an hourly rate are also available. Frequently as much as $100,000 or more in expenses are advanced by firms handling this type of litigation. The expenses are principally related to the need to hire obstetrical experts, pediatric neurologists, neonatologists, economists, life care planning experts, and other experts, and the deposition and travel costs associated with deposing all of the experts for both the Plaintiff and the Defendant. Of course if our firm is not successful, we have to absorb the expenses, and there is no obligation on the part of the client to reimburse the expenses unless there is a damage recovery. Damage recoveries in these cases can be very high also since they try to compensate the family for the child’s injuries and a lifetime of care and medical expenses for the child. A contingency fee means that we advance the costs of the case and you do not have to pay anything unless we obtain a settlement or judgment for you. In other words, we do not require you to pay any money at the beginning of the case. We get paid only if you win. Attorneys’ fees are deducted from the gross amount of the settlement or judgment.

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Q. Are there alternatives to going to court?

A. Alternate dispute resolution (ADR) is a growing area of the law. Is it generally voluntary but can be court ordered. There are two types of ADR. One is mediation, which is a settlement conference conducted by a trained mediator. Any settlement negotiated in mediation must be agreed to by all sides. Arbitration is another form of ADR. In this instance the parties agree upon an arbitrator (normally an attorney and frequently a former judge) who will serve as the judge and jury and decide issues of fault and award damages. The findings of the arbitrator are normally binding on all parties.

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Q. How long does it take for a case to go to trial once it has been filed?

A. When someone files a lawsuit, they get in line with everyone else who has a lawsuit pending. Normally the courts try to schedule the oldest cases first, but any scheduling has to take into account the trial schedules of all of the attorneys who are involved. Also some judges travel to different courthouses and only hold trials during certain times of the year, rotating the same courtroom among other judges. Criminal cases normally have priority over civil cases and may result in a civil case being postponed or “continued’ to a new trial date. The complexity of the case may also have an effect on how soon a trial date can be obtained. It is easier to schedule a one-day trial than a trial which will last two or more weeks. Waiting for their day in court can be a very frustrating experience for a litigant, especially if the trial date is rescheduled several times. Since there are so many different variables, this is a question which really must be answered on a case by case basis by your attorney.

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Q. Is technology important to my case?

A. Technology is more and more important in today’s world. Lawyers now use case management software to track deadlines and to provide reminders as well as document damages, witnesses, and valuable case data. Research available over the internet and CDs replace the massive legal libraries that once were necessary. Interoffice e-mail and internet e-mail allows for rapid and efficient communication, often better then utilizing the telephone. Letters and documents may be e-mailed, edited, and returned, avoiding the delays of the postal service and the inability to edit fax transmissions. Laptop computers can carry images of massive numbers of documents and depositions. During trial, the laptop and digital projector can be used to present video depositions, exhibits, and visual aides to assist the jury in understanding often complex and technical issues. Generally, the more complex the case and the more serious the damages, the more technology can be used to maximize the odds of winning and the amount of the verdict. You should ensure that the firm you hire has the necessary technology to present your case in the most effective way possible.

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Q. What should I look for in hiring an attorney in a birth injury case?

A. Birth injury cases require a tremendous amount of time and money. Furthermore, this is one the most complicated areas of medical negligence litigation requiring expert witnesses and in-depth investigation. For this reason it is extremely important that the client hire a law firm with adequate resources, both in terms of staff and finances. Furthermore, the attorney should have special knowledge and expertise in the field of obstetrics, neurology, and pediatrics.

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Q. Why should I hire The Brad Hendricks Law Firm?

A. Brad Hendricks, Lamar Porter, and George Wise have handled difficult birth injury cases for over twenty years. Collectively, they have handled over one thousand birth injury cases, more than any other attorneys in the State of Arkansas. In this complicated area of medical malpractice, you need attorneys who are experienced and who care. You need the best for your child as his or her future may depend on the attorney you hire.

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