In a normal delivery, the fetus is positioned so that the head emerges first. In some cases, the fetus is positioned so that the feet or backside of the fetus are positioned to emerge first. Some fetuses remain in the breech position beyond 30 weeks of gestation. In these cases, doctors must question whether normal delivery is the safest and most appropriate delivery or whether they should perform a Cesarean (C-section).
It is common for a fetus to be in a breech position early in a pregnancy. However, most fetuses move into the head-first position by the 36th week of pregnancy. This head-first position is referred to as “vertex presentation.” It is the safest position for a natural delivery.
There is a limited chance that a fetus will not transition into a head-first position before the 37th week of pregnancy. About 3% to 4% of all full-term fetuses are still in the breech position at birth.
The primary risks in a vaginal breech delivery are that the umbilical cord may prolapse or fall, possibly impairing circulation, or that the head may become trapped because of an incompletely dilated cervix. If this occurs, it would be better to consider a Cesarean delivery. Negligence on the part of the obstetrician who determines the delivery procedure, which results in injury to the baby or mother, can be grounds for medical malpractice.
How Should the Determination Be Made?
Generally, doctors consider three important factors in determining the optimal delivery procedure:
- Whether prior evaluation of the size ratio between fetus and mother shows that a vaginal delivery would not create any risks;
- The ability of the hospital to perform continuous fetal monitoring with necessary technical equipment throughout the delivery;
- In cases where the position was unknown, how far along the delivery has proceeded before the breech position is discovered.
Assume a doctor chooses to proceed with a vaginal delivery for a breech baby. The following preparations for a possible emergency C-section should be made in advance or at least early in the labor process:
- Preparation of anesthesia;
- Availability of an operating room;
- Informed consent from the mother;
- The presence of appropriate medical staff, e.g., an anesthesiologist.
What if the Mother and/or Her Baby Are Injured?
If the mother or baby are injured during the delivery procedure because of the breech position, there may be grounds for breech birth malpractice. This would be the case if the injuries were the direct result of negligence on the part of healthcare professionals, notably the obstetrician, in the delivery procedure. The negligence may be in the failure to determine the safest delivery procedure. Or it may have happened during the birthing procedure.
If the doctor knows that the fetus is in the breech position and the conditions are less than optimal, and the doctor proceeds with a vaginal delivery, there may be grounds for medical malpractice. However, there is a significant body of case law in which courts have ruled that a doctor is not negligent if there is sufficient evidence to indicate that the doctor made a reasonable determination in the circumstances of a particular case.
The degree of care that a reasonably competent and skilled professional obstetrician, who has a background comparable to others in the same medical community and who practices in the same medical community, would have given to a patient under the same set of circumstances is basically the standard of care for medical doctors in a case of medical malpractice during a breech delivery.
All healthcare professionals around the country must adhere to this standard. However, depending on the type of medical practitioner and the law of the state in which the birth takes place, this definition of the standard of care may differ in some particulars. The standard of care may be somewhat different in different states.
Among the issues that an infant born in the breech position may experience are the following:
- Cranial nerve damage;
- Umbilical cord prolapse;
- Spinal cord injury;
- Traumatic brain injury;
- Seizures.
Other conditions associated with breech births are congenital in nature, which means that they are present in the fetus before birth and are not caused by anything that happens during delivery.
For example, congenital hip deformity or hip dysplasia can occur because the breech position can limit the fetus’s movements in the womb. Early treatment of this condition is vital for preventing developmental delays in walking and other motor skills. Again, It is not necessarily a consequence of any malpractice.
The legal remedy in the majority of cases of medical negligence is an award of monetary damages. This must be paid to the mother and/or the parents of the infant by the obstetrician, hospital, or other healthcare professional whose negligence may have contributed to the injury.
Birth injury damages would reimburse the victim for such losses as all of the necessary medical treatment required to restore them to good health, loss of income, loss of earning capacity, and their pain and suffering.
This award of damages can pay for additional medical bills, additional hospital fees, and further therapies. In addition, if a victim of birth injury malpractice suffers permanent injury with permanent consequences for their lifestyle, the award of damages would have to compensate for that.
The amount of damages that the victim may be awarded in medical malpractice cases is limited or capped in some states. Some states have no caps on medical malpractice damage awards. Medical malpractice awards have been capped to try to discourage baseless lawsuits and jury awards of excessive amounts of compensation.
For example, Missouri established a cap for non-catastrophic injuries at $400,000 in 2015, and a cap for catastrophic injuries was set at $700,000. An annual increase of 1.7% for these damages is allowed. So, in 2018, the cap for non-catastrophic injuries was $420,749, and $736,310 for catastrophic injuries.
In California, for 2023, a damage award for malpractice-related injuries is capped at $350,000, and $500,000 for wrongful death caused by medical malpractice. Then, beginning in 2024 until 2034, the capped amounts are set to increase annually by $40,000 for personal injury and $50,000 for wrongful death. Then, beginning in 2034, the capped amounts will increase by 2% every year.
In addition, medical negligence may be challenging to prove at times because a number of defenses are available, depending, of course, on the facts of each particular case:
Some of the potential defenses to a claim of medical malpractice are as follows:
- Patient Negligence: A patient’s own negligence can cause or at least contribute to their injury. In some states, a patient’s negligence may limit or even completely defeat an award of damages;
- No Breach: If the plaintiff is unable to prove that the doctor breached the standard of care, then this defeats the victim’s case;
- Wrong Defendant: A victim may not be able to track any malpractice that may have occurred to the appropriate healthcare professional, and this could defeat their case;
- Damages Cannot Be Calculated: Courts demand that the damages be capable of calculation to a reasonable degree of certainty. A court would not allow an award of damages if the damages cannot be calculated to a reasonable degree of certainty.
As in any case, the way in which the victim presents their case in court usually makes or breaks their case. The likelihood of a patient winning a case for malpractice would, of course, be reduced if they provide false or confusing information regarding any aspect of their complaint.
Do I Need an Attorney Experienced With Medical Malpractice?
If you have experienced a breech delivery and believe that you or your baby were injured in the process, you want to consult a birth injury attorney.
LegalMatch.com can connect you to an experienced attorney who can review your medical records and consult with the appropriate medical expert. Your attorney will be able to give you a reliable opinion as to whether there was malpractice in your breech delivery. Your attorney will be able to protect your rights and get you the compensation that you deserve.
