The only birth injury cases a personal injury lawyer will likely accept are those that have a strong likelihood of success, and all successful birth injury cases must have four elements. One of those elements is liability. When it comes to evaluating liability, I ask myself certain questions. Here, we’ll look at two of these questions–perhaps the most important two.
When it comes to liability, I first ask, can I prove that the defendant was negligent?
To assess the liability aspect of a case, an attorney must determine whether he can show that the defendant’s conduct, his action or inaction, was negligent under the particular circumstances. Negligence is a breach of the “standard of care.” The plaintiff must establish what the standard of care is.
In Maryland, another question is important to answer even after being convinced the defendant’s conduct was negligent. The additional question asks whether the plaintiff’s negligence was a significant cause of the harm or injuries he or she suffered? This question is as relevant, because Maryland is one of only a few states where “contributory negligence” is a bar to financial recovery, a bar to success. “Contributory negligence” is some negligence on the part of the plaintiff which directly contributes to the occurrence of the plaintiff’s injury. However, to bar recovery, the plaintiff’s contributory negligence must have significantly contributed to the injury.
For example, a mother and father begin a medical malpractice case against a doctor, claiming that the doctor’s failure to diagnose the mother’s gestational diabetes caused the stillbirth of their child. However, the doctor claims that the mother failed to disclose her family history of diabetes and failed to follow his medical instructions. Here, a jury might conclude that the mother was contributorily negligent.
It is unfortunate how many children and mothers are injured at birth due to negligent medical care. If you or your child suffered a birth injury due to negligent medical care, you may have questions about legal options. If you have not yet started a lawsuit and are contemplating bringing one, I encourage you to contact me today. I can answer your legal questions and would love to talk with you. You can reach me at 410-513-9978 or by email at email@example.com.