In a birth injury case, you have the chance to hold your medical care provider responsible for the injury that your child suffered. To be successful in your claim, you have to prove three elements. If you fail to do so, your claim could be denied by the provider's insurance company or dismissed by a trial judge. To help start your claim, here are the three elements you have to prove.
The Provider Had a Duty of Care
Duty of care refers to the responsibility that your medical care provider had to provide you with reasonable care expected in a situation. In essence, there is an established relationship between you and the doctor and he or she took on the responsibility to care for you and your child throughout the labor and delivery process.
Proving that you and your provider had a relationship is relatively easy. For instance, if you are planning to sue your OB/GYN, you can point to the fact that he or she provided you with prenatal care and delivered your child as proof of the relationship.
The Provider Was Negligent
Negligence is possibly the most challenging element to prove in a birth injury case. Whereas you and your attorney claim your child's injuries were the result of the provider's negligence, the provider can claim that your child did not suffer an injury. The provider could blame your child's condition on a birth defect.
To prove that the provider was negligent, you will have to examine his or her actions. If you can prove that the provider's actions were outside of the normal for the situation, you can possibly win your case. For instance, if your OB/GYN failed to diagnose and treat an infection you had and it led to injury, he or she would be considered negligent.
Your Child Was Injured
One of the easiest elements in your birth injury case that you have to prove is the fact that your child has an injury and it resulted from the actions of your provider. Without an injury, even if your provider was negligent, you would not have a case.
Your prenatal records combined with the records from labor and delivery can help to prove the existence of a birth injury. Your child's current records are also important. Your attorney can call on an expert to help prove the link between the injuries and your provider's actions.