Can You Hold a Physician Liable for Birth Defects and Injuries in Illinois?


    Medical malpractice is serious and can have devastating, life-long effects. One potential result of medical malpractice is a child being born with birth defects and injuries. Every year, about 28,000 babies born in America are born with birth defects. The following article will discuss whether a physician can be held liable for medical malpractice that results in birth defects and injuries in Illinois.

    Illinois Medical Malpractice Law

    The time deadlines for filing a medical malpractice suit are amongst the most complex for  Illinois citizens to navigate, and that includes cases of birth defects and injuries in Illinois. Generally speaking, 735 ILCS 5/13-212 stipulates that an action for damages for injury (based on the theories of tort, breach of contract, or otherwise) arising out of patient care against any licensed physician, dentist, registered nurse, or hospital must be brought within two years of the date on which the claimant knew (or through the use of reasonable diligence should have known) or received notice in writing of the existence of the injury for which damages are sought (whichever date comes first).

    This section also provides a statute of repose, which means that no action can be brought more than four years after the date the alleged malpractice occurred. For example, what if a physician leaves a surgical sponge inside a patient and the patient doesn’t develop an infection until years later? Under this scenario, the victim would argue that the “discovery rule” applies, as she had no way of knowing that the negligence occurred until the infection set in years later.  However, if the infection sets in more than four years later, then the doctor is absolved by the statute of repose. Is this fair? No, but it is the current state of the law.

    What about minors? No medical malpractice action can be brought more than eight years after the date on which the alleged malpractice occurred if the person entitled to bring the action was under the age of 18 at the time. Furthermore, this section prohibits a medical malpractice action from being brought by a person after their 22nd birthday. However, if a person is entitled to bring a medical malpractice action, and at the time the injury occurred, they were under a legal disability (other than being under the age of 18), then the period of limitations does not begin to run until that disability is removed. Once again, is this fair? Absolutely not. If a doctor commits malpractice and injures a three year old child, and that child wants to take action once she is twelve, it is too late…..unless that child is under a legal disability. Confusing, I know.

    Making matters even more complicated are instances when a doctor takes actions to hide his mistake from the victim. Under these circumstances, the statute of limitations and statute of repose may be extended. However, it is not easy to prove that a physician took proactive measures to fraudulently conceal his mistake.

    Common Types of Medical Malpractice Cases

    Medical malpractice is used to describe an occurrence where a hospital, physician, or other health care professional causes injury to a patient, either from medical negligence or a failure to act according to the established standard of medical care. The following are some common examples of typical medical malpractice cases:

    1. Misdiagnosis or delayed diagnosis. Many medical malpractice cases result from misdiagnosis or delayed diagnosis. A misdiagnosis can occur when a physician fails to:

    • Identify clinical signs and symptoms
    • Order required medical testing or complete necessary follow-up procedures
    • Refer the patient to the appropriate specialist

    2. Failure to treat. Failure to treat a patient is a violation of a physician’s duty of care and competence. Failure to treat can be exhibited in some of the following ways:

    • Releasing a patient too early from the hospital
    • Failing to provide necessary instructions for follow-up care
    • Failing to order required medical tests
    • Failing to consult a patient’s medical history before prescribing medication or treatment

    3. Prescription drug errors. If a physician or other health care provider makes errors in prescribing the appropriate prescription drugs, it can be extremely detrimental to the health of the patient. These types of errors include:

    • Prescribing the wrong medication
    • Prescribing the wrong dosage
    • Failing to recognize potentially dangerous drug interactions
    • Neglecting to recognize signs of drug abuse in a patient

    4. Surgical or procedural errors. If a physician makes an error while conducting a surgical procedure, it can not only risk impairment, it can literally put the patient’s life at risk. Some forms of surgical errors include:

    • Performing surgery on the wrong part of the body
    • Performing surgery on the wrong patient
    • Incidentally leaving surgical tools inside the patient
    • Failing to adhere to proper surgical procedures before, during, and after the surgery

    5. Childbirth injuries. Injuries that occur during childbirth as a result of a physician’s negligence can be devastating for both the mother and the child. Some of these injuries that turn into birth injury lawsuits result from:

    • Providing substandard prenatal care
    • Failing to provide a Cesarean section when necessary
    • Mishandling a baby during or after birth
    • Improper use of forceps or using excessive force when removing a baby from the vaginal canal

    Types of Birth Injuries

    There are various types of childbirth injuries that can result from a physician’s malpractice during the delivery process. Some of these common birth injuries brought forward in a birth injury claim include:

    • Brachial plexus injuries: This type of injury results from damage to the peripheral nerve, which can prevent proper hand and arm movement. Though this condition can improve over time, if the nerve was severed during the birthing process, the child could experience ongoing medical issues.
    • Cranial nerve/spinal cord injuries: These types of injuries occur when a baby is improperly rotated, pulled, or stretched during delivery, and can lead to facial paralysis and paralysis of other parts of the body.
    • Facial paralysis: This type of injury occurs when pressure is put on the baby’s facial nerves. This paralysis typically improves in a few weeks if the nerves are only bruised, but if the nerves are severed, the baby may require surgery to fix the paralysis.
    • Bone fractures: Because of the delicate nature of a baby’s bones, it only takes slight force during delivery to cause these bones to fracture or break.
    • Cerebral palsy: A condition resulting from a lack of blood, oxygen, or other nutrients before or during birth that causes fetal distress and later affects a child’s ability to move and maintain balance, which may cause intellectual disabilities. Cerebral palsy is one of the most severe injuries related to birth trauma.
    • Brain injuries: There are several types of brain injuries that a baby can suffer, either during pregnancy or as a result of a traumatic delivery, that may cause long lasting brain damage. Some of these injuries include:
      • Hydrocephalus: A condition resulting from the buildup of cerebrospinal fluid in or around the brain. A child can be born with this condition or it can develop as a result of a traumatic birth
      • Cerebral hemorrhage: A condition which causes bleeding in the brain
      • Perinatal asphyxia: A condition resulting from lack of oxygen or blood to the brain during labor and delivery, which can lead to mental and physical developmental problems, along with shock, labored breathing, seizures, coma, or death
      • Periventricular leukomalacia (PVL): A condition resulting from a softening of white brain tissue near the ventricles that can affect the nerve cells that control motor movements. PVL typically occurs when a baby gets too little blood or oxygen
      • Hypoxic-ischemic encephalopathy (HIE): A condition that is caused by oxygen deprivation and limited blood flow, sometimes resulting from umbilical cord complications

    What Elements Do I Need to Prove in a Medical Malpractice Case Based on Birth Defects?

    Under Illinois Law, if a physician’s actions resulted in your child’s injury or being born with birth defects, you may have a valid medical malpractice claim against that physician, as well as against the associated hospital or medical facility. To make a successful birth injury case against a physician, you will need to establish four elements.

    These elements are:

    • Duty: You will first need to establish a physician-patient relationship between the health care provider and yourself. Medical professionals owe a duty to all patients to act competently in providing care. If you can successfully establish that a physician-patient relationship existed at the time of the injury, you will also establish that the physician had a duty to provide you with competent health care, which includes providing proper care for your child.
    • Breach: After establishing that the physician owed a duty to you, you will next need to show that they breached that duty. This is accomplished by showing that the physician failed to adhere to the appropriate medical standard of care. An example of this would be a physician using extreme force when removing the baby from the birth canal. If the physician’s conduct or actions would not have been exhibited by other similarly-trained physicians in the field, the physician has breached his duty of care owed to you and your child.
    • Causation: Next, you will need to show that the physician’s negligence is what caused your injury. In other words, the birth defects that resulted would not have occurred but for the physician’s negligent conduct. Keep in mind that in medical malpractice cases, it is not enough to simply show that the physician acted negligently; rather, you must affirmatively prove that the physician’s negligence was a contributing cause of your child’s birth defects. It could be difficult to prove this however, which is why it might be helpful to enlist the help of a personal injury attorney, who will be able to obtain expert opinions about the specific cause of these injuries.
    • Damages: Lastly, you will need to show proof of the actual injuries or damages your child suffered. This will typically be readily apparent by showing proof of the birth defect. If your child was born with a birth defect, it is possible that you too may have suffered an injury. The types of damage awards you could seek include compensatory damage awards which cover medical expenses or loss of income or non-compensatory damage awards which cover intangible things like pain and suffering.

    If Medical Malpractice Caused Your Child to Suffer Birth Defects, We Want to Help

    If your child was born with birth defects and injuries in Illinois stemming from a physician’s malpractice, the Palermo Law Group wants to help. Our Chicago area personal injury law firm is based in Oak Brook and has knowledgeable attorneys with over 20 years of experience litigating medical malpractice cases. Mario Palermo is an experienced Chicago birth injury attorney who values the attorney-client relationship and will ensure that you receive justice for the injuries your child suffered and compensation for medical bills. Please contact us today at (630)-684-2332 or use our online form to schedule a free consultation for legal advice with a personal injury lawyer. Please also note that video conferencing options are available.


    Mario Palermo is the Founder and Lead Attorney at Palermo Law Group in Oak Brook, Illinois. For the past 26 years, he has worked tirelessly to help injury victims and their families in their times of need. He is a seasoned authority on civil litigation, and also a member of the Million Dollar Advocates Forum, a prestigious group of trial lawyers who have won million and multi-million dollar verdicts and settlements. Mr. Palermo has been named a “Leading Lawyer” by his peers in 2015, 2016, 2017, 2018, 2019, 2020, 2021 and 2022.

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