When a child is born with an injury, the mother deserves answers. But when that child is diagnosed with a permanent disability resulting from those injuries, such as cerebral palsy, she deserves much more. These circumstances can arise from harmful negligence on the part of doctors or hospital staff, which could have been avoided had proper procedures been followed.
However, research has often shown that while preventable medical errors are far too common, malpractice litigation is rare. Remarkably, the majority of victims never sue.
But if a lawsuit is the only option mothers have to pursue justice for a lifetime of grief, why are so few willing to go down that road?
Where the Malpractice System Fails
There are many ways tort law can unfold through shortcomings in healthcare, from slip and fall claims to misdiagnosis. Unfortunately, in the rather risky branch of medicine that is OB/GYN, things are a little more complicated.
For one, litigious women are largely considered the reason doctors practice defensive medicine, or the contingency tests and procedures performed to avoid being sued. Besides the fact that many of these procedures may seem unnecessary, this false perception only serves to condemn brave women for doing what’s right.
Another aspect that may daunt mothers, even those clearly eligible for compensation, is that the legal process for medical malpractice can sometimes be slower than anticipated. According to a major study on medical malpractice litigation in The New England Journal of Medicine, the average case takes around 5 years to resolve.
A third and pivotal reason that so few mothers sue is that they don’t know whether their child’s injuries were caused by medical error – pivotal, because this is the problem that doctors have the most power to fix.
How Litigation Protects Not Just Patients, but the Nation
Many outcomes of complicated deliveries are unavoidable no matter how good the doctor; especially birth defects which, unlike birth injuries, are inevitable genetic abnormalities. Because of a critical lack of transparency in hospitals, no parent can know for sure what or who is to blame until they commence legal proceedings.
But if they feel the injury resulted from a violation of their rights, then mothers have every right to hold doctors accountable. Lawsuits are the only way to make sense of what’s happened and to access the information needed to establish liability, which hospitals are otherwise under no obligation to share.
Furthermore, lawsuits aren’t only beneficial to individuals. It only takes 1 woman to stop a hospital from abusing many more women’s rights in the future and, on a national level, lawsuits could play a large role in keeping medical malpractice to a minimum.
“Licensing boards and professional organizations have totally abdicated that responsibility,” said Lauren Hall, associate professor of political science at Rochester Institute of Technology. “Licensing boards rarely take action against even clearly negligent physicians, and patients often don’t know even when adverse actions have been taken, which may be one reason why 1% of physicians rack up more than one-third of all malpractice suits.”
The Importance of Birth Injury Lawsuits
Medical errors have reached a crisis point, now ranked the third leading cause of death in the United States. According to Hall, tort reform – while a key pillar of the Trump administration’s healthcare agenda – is not an option likely to improve the situation. Instead, improving quality of care and communication with patients is the most logical step doctors can take, and state licensing boards can simply start doing their jobs.
Many women are aware they have no choice but to sue as a way to support their child through costly disability care. In cases of cerebral palsy and Erb’s palsy, 2 conditions caused by birth injury, this care is often a lifelong commitment. However, more victims need to put faith in the system and recognize their position against doctors who, if unwilling to treat women like human beings and admit fault, do not have their children’s best interests at heart.
Without torts, women simply do not have the means to defend their and their children’s rights against doctors and the powerful hospitals that often protect them.
“What we need is more accountability from doctors and hospitals, not less,” said Hall, “While the tort system appears to have a limited effect on the prevalence of medical errors, it’s the best system we have right now.”
