There is a difference between a birth injury and a birth defect. But as we pointed out in our previous post, both can cause similar chronic health problems that can challenge an Oregon family for the remainder of everyone's life.
Whether the issue is cerebral palsy, Erb's palsy, spina bifida or some other form of disability, the key to determining whether compensation can be sought through a medical malpractice claim depends on preventability. If it can be shown that the condition could have been prevented by the exercise of appropriate standards of care during delivery or during the pregnancy, then recovery might be warranted.
As an example of how this can play out, there is the case recently decided in Missouri. The family of a girl who was born 12 years ago filed suit against health care company Abbott and has been awarded $38 million.
The child suffers from an array of birth defects, including spina bifida. The claim made and which the jury agreed with was that the defects were caused by the mother having been prescribed the anti-epilepsy drug, Depakote, while she was pregnant.
Depakote has been the focus of regulatory concern for some time. Back in 2010, the New England Journal of Medicine published a report indicating that the key ingredient in Depakote had been linked to six types of birth defects in women who took it.
In 2013, the Food and drug Administration issued a warning about Depakote and said that it should only be taken by pregnant women for epilepsy or bipolar disorder if no other acceptable alternative was available.
The plaintiff in this case is only one of 24 that have brought claims against Abbott over Depakote.