After seeing the consequences of your child’s episode of hypoxic-ischemic encephalopathy (HIE), you may wonder what to do next. You may suspect your medical team may have missed something that could have prevented it. You may be right, but how do you file an HIE claim?
The process starts by speaking with a birth injury lawyer with experience in these cases. They can help you file an HIE claim. In fact, their help is essential to win. The laws surrounding medical malpractice claims make it extremely difficult for you to win these cases without legal representation.
Do You Have a Case?
Birth injury lawyers are a type of medical malpractice lawyer. To win your case, your lawyer must prove that negligence or deliberate action caused your child’s HIE and subsequent disabilities. Before they can do that, they have to see if you have a case at all.
Malpractice lawyers must take care in the cases they take. You only have to pay your lawyer if you win your case (a contingency fee), so they only choose cases that have merit and they believe they can win. Not every case of HIE is caused by medical malpractice.
When you consult with a lawyer, they will ask you questions about what happened and why you suspect malpractice was the cause. They may also perform a preliminary investigation to see if there is evidence of malpractice. If they believe you have a case, they will offer legal advice on the next steps specific to your situation.
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Proving Malpractice
Once you hire a malpractice lawyer to file your hypoxic-ischemic encephalopathy claim, they take over the work of filing your claim. They must prove four elements of negligence to your doctor’s insurers or a court to show you’re owed compensation. These are:
A Medical Relationship
There must have been a medical relationship between your baby and whoever you wish to accuse of malpractice. This doesn’t have to be a doctor; anyone involved in your child’s medical care could be liable.
Most times, you can also hold the hospital you were attending liable for your baby’s HIE. They have a responsibility to hire trained staff and provide them the tools they need to do their job. Medical records of the child and the mother can easily prove there was a medical relationship.
A Breach of the Standards of Care
For someone to be negligent, they have to act unreasonably. However, proving unreasonableness in medicine is extremely tough. A doctor can do everything correctly according to current medical knowledge and still end up making things worse for a patient, or even killing them.
Medicine is an uncertain profession, but there are standards of care built up over decades of medical practice and information shared between doctors. If we can show that a doctor breached those standards of care then this element is proven.
Since lawyers are not doctors, many states require an “affidavit of merit” before filing a malpractice lawsuit. This is testimony from another doctor stating that your case has merit and what your doctors should have done to avoid your child’s HIE. The doctor giving the affidavit may need to examine your child to write the report.
Causation
A negligent act alone doesn’t mean it caused your child’s HIE. We must show that the negligent actions caused what happened to your child. We do this through building a case based on the evidence that explains how your child was injured.
Let’s say that a nurse incorrectly hooked up a fetal monitor, and no one noticed. This is a breach of the standards of care. Then your baby suffers from HIE because the doctors didn’t get an alert. This causes the baby to become disabled or even die. That’s causation.
The top reasons for causation in medical malpractice cases include:
- Failure to diagnose or a delayed diagnosis
- Complications from treatment or surgery
- Poor outcomes or disease progression
- Failure to treat or delayed treatment
- Wrongful death
Damages
Finally, we have to show how your baby and your family have been harmed because of what happened. The ways this happens are called damages. These include economic losses, like your child’s medical bills, and non-economic losses like the pain and suffering you’ve experienced.
Proving the true value of these losses and arguing for that value in compensation is a major part of your lawyer’s duties.
Approaching the Insurer
Once there is evidence of all four aspects of negligence, your lawyer can proceed with filing an HIE claim against your medical team. Their malpractice insurers will start their own investigation and will start negotiating with your lawyer to reach a settlement.
Settling outside of court happens in nearly all cases. Going to trial is expensive and it puts doctors and hospitals into the public eye. If they believe they cannot win a case, they will try to settle.
However, there is always a chance that they refuse to come to a settlement. If so, your birth injury lawyer will start filing a formal lawsuit with the court. There, a judge and jury will listen to the evidence and reach a conclusion about your case that’s binding on you and the insurer.
"We know first-hand what you are going through."
What Is My Role in Filing a Malpractice Claim or a Lawsuit?
Parents of children with HIE have to deal with the aftermath of their child’s care or burial. By hiring a lawyer, parents can fight for their right to compensation without dealing with the legal side of their situation yourself.
A good client gives their lawyer the information they need to proceed with their claim. They also listen to their lawyer’s advice and follow it. For instance, you should never post about a case in progress on social media. They could use your statements against your claim!
Your lawyer may also ask you to get additional tests for your child to get evidence for your claim. You’ll also need to follow all medical instructions given by your doctor. The costs of these will become part of your economic damages.
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File Your HIE Claim by Contacting the Birth Injury Lawyers Group
In short, if you want to file an HIE claim or lawsuit, the most important step is to contact an experienced birth injury lawyer. The Birth Injury Lawyers Group can connect you with a lawyer in your state who can help you. For a free consultation, contact us at the number on your screen or email us through our website.
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