Birth Defect Lawyer Blog

To add fuel to the debate over whether babies conceived via in vitro fertilization (IVF) have a higher risk of birth defects, a new study has found that birth defects for babies conceived through assisted-reproduction techniques (ART) have gone down over the past decade. ART encompasses all types of artificial methods for achieving pregnancy, including IVF, intracytoplasmic sperm injection, intrauterine insemination, and cryopreservation.

The study out of Western Australia examined data on over 207,000 births, including babies who were conceived through two IVF and intracytoplasmic sperm injection, two of the most common techniques. Of the total amount, 1,328 were conceived by IVF and 633 were conceived by intracytoplasmic sperm injection between 1994 and 2002. Researchers found that in general, 8% of babies had birth defects such as cleft lip, heart defects, and defects in the abdominal wall and genitals, compared with 5% of babies who were conceived without artificial methods. However, when the researchers compared data from 1994 through 1998 to the data from 1998 through 2002, they found a decline in the percentage of birth defects -- from 11% to 7.5%.

Researchers are not certain of the reasons behind this change. Some speculate that as ART is used more widely over time, different methods are used that could have a notable impact. For instance, laboratories could be using different medication to stimulate the ovaries, or require smaller doses over a shorter period of time. Regardless, researchers believe that what this demonstrates is that, despite the overall higher risk of birth defects, ART is becoming safer all the time, and most babies conceived through ART will be born healthy.

It is encouraging news that rates of birth defects from ART have decreased gradually. After the time and expense involved with IVF and other types of ART, having a child with a birth defect would be a serious blow, both emotionally and financially. If your child was born with a birth defect that you believe was due to IVF, are there ways that you could get relief? You always have the option of filing a medical malpractice suit against the ones who administered the technique. This would involve arguing that the person or persons did not use reasonable care, and as a result, you were injured. That might be a challenge to prove, since records might not indicate whether the methods used for your ART deviated in any way from an ART that led to a normal pregnancy and birth. If you believe the problem was not the way the ART was administered, but the medication you received as part of the treatment, you might also consider filing a product liability suit against the drug manufacturer. There, you would argue that the manufacturer created an unreasonably dangerous drug that caused you injury, with the result being your child's birth defect.

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After finding that babies conceived through in vitro fertilization (IVF) had a higher risk of birth defects, now scientists have found that babies conceived after male fertility treatments have an even greater risk.

Scientists from the University of Adelaide in Australia found that while babies conceived through regular IVF (mixing eggs with sperm in a Petri dish) had no greater risk of birth defects than babies conceived normally, that changed when a single sperm was injected into the egg. Then the result was that 10% of babies conceived through sperm injection IVF were born with birth defects, compared with 6% conceived normally.

The study relied upon records of nearly 303,000 babies conceived naturally and 6,163 babies conceived with treatment in Australia from 1986 to 2002. The study also reviewed records of the birth defects some of these babies showed by the age of five. Researchers considered heart, spinal or urinary tract defects, limb abnormalities, and problems such as cleft palate or lip. However, minor defects were not considered unless they needed treatment. The study then grouped the results by the type of fertility treatment used. Only babies conceived through the sperm being injected into the egg showed a higher risk of birth defects once other factors were removed.

Scientists had several theories One is that that abnormal sperm are simply being forced to conceive. It may also be because the extra jostling of the sperm and egg causes damage. Scientists cautioned that physicians should inform patients that having children via IVF, including by sperm injection IVF, could increase the chance of them having babies born with birth defects. At the same time, scientists noted that male fertility treatments are safer now than when the study began, which could mean that the increased risk of birth defects is no longer a factor.

In the United States, 146,000 IVF attempts resulted in more than 60,000 babies born in 2009. Of those, three-quarters used the sperm injection method. If you live in the U.S. and believe that your child's birth defect is due to this type of fertilization treatment, you might consider filing a medical malpractice suit. You could argue that your physician had a duty to inform you, the patient, about the risks of a course of treatment. Did your physician, in describing the sperm injection method, fail to inform you that the risk of having children this way was higher increased the chances that your baby could be born with a birth defect? Had you known, you might have decided on a different type of fertility treatment than the sperm injection method decrease the risk of birth defects.

In his or her defense, your physician might argue that there was not enough information, within reasonable access, about the increased risks of birth defects. Also, as always, you would need to prove that the fertility treatment was at fault, as opposed to exposure to certain toxins or prescription medications.

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Is it more risky to have a midwife deliver your baby than a physician? While it is common to assume so, many midwives are highly trained and licensed nurse-midwives who practice in hospitals and medical clinics. Aspiring midwives attend midwifery education programs accredited by the American College of Nurse-Midwives and then later take an examination administered by the American Midwifery Certification Board. They frequently collaborate with physicians on a number of cases, including high-risk pregnancies. Yet what happens when a midwife delivery goes wrong?

This was the case last month, when a midwife in Concord, New Hampshire settled a lawsuit for $730,000 after a delivery gone wrong resulted in the baby being born with a severe brain injury. Sarah Sadowski, the mother, accused Jeanne Browne, founder of the Concord Birth and Wellness Center, of not giving her proper care during the course of her pregnancy. Even though she showed several risk factors, Browne never referred her to an obstetrician. She also did not send Sadowski to the hospital when the baby showed no signs of a heartbeat in utero. Even after birth, when the baby still had no heartbeat, Browne did not call for an ambulance. As a result of her medical mistakes, the Sadowskis' baby spent 21 days in the hospital and now suffers from cerebral palsy. Of the $730,000, $386,000 will be put in a trust for the girl so that she does not lose her Medicaid eligibility. Most of the rest will go to pay attorney's fees and Medicaid reimbursement for expenses incurred after the birth.

It is not clear whether Browne carried malpractice insurance. Midwives are not required to in the state of New Hampshire, but many choose to do so. Several insurance companies will not cover midwives who do not carry malpractice insurance.

What this case illustrates is that even though midwives are not physicians, they are medical professionals who can be sued for malpractice when a baby suffers from birth trauma after a delivery gone wrong. In a malpractice suit, you would argue that the midwife owed you a duty of care to provide as safe a delivery as possible, that the midwife breached this duty by making a mistake that was preventable, the mistake caused you injury, and you suffered damage in the form of your child's birth defect. People who sue for malpractice can potentially get damages (a money amount) for medical expenses, pain and suffering, and more.

A hospital or physician who employs the midwife can also be sued under the "vicarious liability" theory. With vicarious liability, an employer is found to be liable for the mistakes of his/her employees -- as long as the employee made the mistakes while performing his/her regular job duties. Therefore, in the case of a midwife who makes a medical error, the hospital or physician could be held responsible for his/her mistake.

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While genetics and environmental factors can result in birth defects, another contributing factor may be a doctor's actions during the birth. Many babies who would otherwise be developmentally normal end up suffering from brain damage and other birth injuries as a result of medical error.

Recently, a Connecticut family won a $58 million award in a malpractice suit over their child's cerebral palsy. In 2003, the mother's amniotic fluid dropped by half, but their physician waited three days before performing a Caesarian section. Once he did perform the C-section, the family charges, he did so incorrectly. As a result, their son (now eight years old) cannot speak, eat, or walk. He also suffers from seizures. The family's attorney commented: "He is profoundly disabled and the parents have gone through hell." In 2005, they filed a medical malpractice suit. The jury awarded $8 million for their son's medical expenses and the rest for pain and suffering. It was the largest medical malpractice ruling in state history.

In addition to delays in performing Caesarians, physician medical error can consist of delays that lead to oxygen deprivation in the birth canal, or injury to the head or neck through inappropriate use of forceps and other instruments. Concern about the cost of resulting medical malpractice lawsuits has led states like New York to create a malpractice fund to cover birth injury lawsuits. Instead of hospitals covering birth injury costs, the state would pay any awards for malpractice lawsuits, saving hospitals an estimated $320 million per year. By contrast, states like Florida have sought to cap medical malpractice awards at $500,000, regardless of the injury and its effect on the person's quality of life.

While some babies are born with birth injuries that can be treated, others suffer from debilitating brain injuries that leave them unable to care for themselves. Babies in the latter category require years of care and treatment that have a significant impact on their families' finances and emotional well-being. If you believe that your child's cerebral palsy or other birth defect may be linked to a birth injury caused by physician error, you may be eligible to file a medical malpractice suit. First, you need to check whether the statute of limitations for your injury has run out. The statute of limitations is the amount of time you have to initiate a lawsuit after an injury has occurred. It varies from state to state. If you are still within the statute of limitations, you are free to file a lawsuit. In a medical malpractice suit, you would need to show that your physician breached his duty by acting negligently during the delivery, resulting in an injury to your baby. The challenge would be to prove breach and causation. First, you would need to establish that the doctor could have acted more reasonably, that his medical error was avoidable. Second, you would need to establish that those actions were the actual or proximate cause of your baby's birth defect. The longer you wait to file suit, the more difficult it could be to recall the events of the birth. However, authentic medical records could be used to reconstruct some of the details.

Parties in a malpractice lawsuit may agree to settle before the suit reaches court. However, if the parties cannot agree upon a settlement amount, the case will typically go before a jury. If the jury agrees that avoidable medical error caused your baby's injury, it may apportion the monetary award based on general and special damages. Special damages are meant to compensate for specific monetary losses that were caused by the injury, such as damaged property or lost wages. General damages compensate for nonspecific losses, such as pain and suffering. Depending upon the type of injury, as the Connecticut case shows, the amount of general damages can be very high.

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