If your child suffers from Erb’s palsy as a result of a medical error that caused injury to their brachial plexus, an experienced West Virginia Erb’s palsy lawyer from the Birth Injury Lawyers Group can help you seek compensation for the expenses of the condition and hold negligent medical providers accountable.
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When Erb’s Palsy Gives Rise to a Medical Malpractice Claim
Not all birth injuries are the result of negligence. Even when an error occurs, it will not necessarily lead to a medical malpractice claim if the error did not result in harm to the patient. However, there are many instances in which an infant’s Erb’s palsy can be the result of malpractice, including the following:
- When an infant’s large size, caused by gestational diabetes in the mother that the medical provider failed to diagnose, results in a difficult delivery.
- When a provider fails to perform a timely C-section in the event of a difficult delivery.
- When a provider improperly uses tools designed to assist with pulling the infant from the birth canal.
- When a provider fails to plan for the eventuality of a C-section in a case where the mother is small and the infant is large, which is a standard indication that there may be difficulties with delivery.
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What Is a West Virginia Medical Malpractice Claim?
When a medical professional commits an error due to negligence and it results in the injury or death of a patient, it is considered medical malpractice. When this happens, the injured patient or their family members can seek compensation for the expenses and impacts of the error through a medical malpractice claim.
The West Virginia medical malpractice claims process generally begins when the injured patient’s attorney sends a demand to the provider’s medical malpractice insurance carrier. The insurer can either accept the claim, deny it, or offer a settlement. If fair compensation is not awarded through the insurance claim, the patient’s attorney can then file a medical malpractice lawsuit so that a judge or jury can determine liability and damages.
This part of the process commences when the attorney sends a notice of claim at least 30 days before filing a lawsuit. This notice is sent to each provider that will be named in the suit and includes the grounds on which the claim is filed and a list of all parties in the suit. The notice must also contain a written statement from a qualified medical expert who has analyzed the details of the claim and found that the defendant(s) failed to meet the standard of care during treatment.
How Long Do You Have to File a Medical Malpractice Claim?
In West Virginia, Erb’s palsy medical malpractice claims must usually be filed within two years of the date of injury. However, if there is a delay in discovering the condition, this deadline can be extended; however, a claim cannot be filed more than 10 years after the date of injury.
If a Lawsuit Is Filed, Will the Case Go to Court?
According to a report from the American Association for Physician Leadership, most medical malpractice claims are resolved out of court, including with settlements. Medical malpractice insurers often prefer to settle claims out of court to eliminate the expenses and uncertainty associated with litigation.
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The Complexities of Medical Malpractice Cases in West Virginia
Many people begin researching the legal process of a medical malpractice claim believing they have an “open-and-shut” case and thus no need for assistance from an Erb’s palsy attorney in West Virginia. However, there are many complexities in these types of cases that can be overwhelming for people who do not have experience with medical malpractice claims.
Some of these complexities include the following:
- Finding a qualified medical expert to attest to the merit of the claim
- Collecting evidence and witness testimony to support the claim
- Understanding certain matters that are unique to West Virginia medical malpractice claims, such as the limits placed on non-economic damages
- Managing the timelines in the case to protect the claimant’s right to use the civil court system to seek compensation for the injury
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The Type of Compensation You Can Seek from an Erb’s Palsy Claim
Erb’s palsy can have permanent impacts on your child, who may need medical care well into the future. If your child has been diagnosed with Erb’s palsy due to a birth injury that was caused by a provider’s negligence, you can seek compensation for the expenses (known as economic damages) and for the quality-of-life impacts (known as non-economic damages) of the injury.
These damages can include past and future medical expenses associated with the condition and any implements needed to accommodate the injury, including physical or occupational therapies, a paraprofessional to help the child at school, or modifications made to the home to assist the child. You can also seek compensation for the pain, suffering, and emotional distress your child has endured or will endure due to the injury.
An Experienced Erb’s Palsy Lawyer in West Virginia Can Help You with Your Claim
Let an experienced West Virginia Erb’s palsy lawyer from the Birth Injury Lawyers Group help your family understand the process of seeking compensation for the damages caused by your child’s injury. Contact us for your free case evaluation.