• Frequently Asked Questions

When is a birth injury medical malpractice?

Not everything that goes wrong in the delivery room is the result of a medical mistake. But when doctors, nurses, and other medical professionals breach their duty of care by failing to use the judgment, make the decisions, and take the actions required to prevent injury to the baby, it can constitute medical malpractice.

Examples of medical errors that often cause birth injuries and form the basis of medical malpractice lawsuits include:

  • Failure to recognize and address fetal distress
  • Failure to recognize and respond to preeclampsia
  • Misuse of forceps
  • Misuse of a vacuum extractor
  • Failure to treat meningitis
  • Fetal heart rate monitoring errors
  • Failure to address prolonged labor
  • Labor induction and Pitocin errors
  • Failure to prevent and resolve neonatal and postnatal infections
  • Deciding not to conduct an emergency C-section
  • Improper prescription or administration of medication

What are common examples of birth injuries?

Some birth injuries are minor and resolve themselves with minimal, if any, long-term impact on the child. Many more result in serious, permanent, and debilitating health problems, as well as death, including:

  • Cerebral Palsy
  • Erb’s Palsy
  • Klumpke’s Palsy
  • Brachial plexus injuries
  • Brain damage
  • Hypoxia
  • Anoxic brain injury
  • Neonatal and postnatal infections
  • Bone fractures
  • Shoulder dystocia
  • Broken bones
  • Cuts

What kind of complications can cause birth injuries?

One of the most common labor and delivery complications that leads to birth injuries – and can be the basis of a birth injury lawsuit – involves insufficient oxygen supply to the baby (anoxia/hypoxia). Without a steady and sufficient oxygen supply, babies can suffer catastrophic and permanent brain injury, lifelong developmental disabilities, or death. A child’s brain can suffer oxygen deprivation due to a physician’s failure to detect and address a twisted umbilical cord. Misuse of forceps or vacuum extractors can also damage an infant’s brain by putting undue pressure on it or depriving it of sufficient blood flow.

Other frequent complications that cause birth injuries include:

  • Premature delivery
  • Prolonged labor and delivery
  • Umbilical cord issues
  • Abnormal presentation
  • Placental abruption

Is a birth injury the same thing as a birth defect?

No. While birth injuries occur during labor and delivery, birth defects develop during pregnancy. Birth defects typically involve problems with the child’s nervous system, organs, or bones. Genetic mutations or fetal exposure to toxic substances and medications are frequent causes of birth defects, though some may involve medical errors.

What are birth injuries?

Birth injuries occur when a baby suffers an injury or a health problem during labor and/or delivery. Most often, birth injuries occur due to physical pressure the baby experiences as they move through the birth canal or because of oxygen deprivation during or near the time of birth. While birth injuries are often the result of unavoidable complications, many cases occur due to the negligence of doctors, nurses, and other delivery room personnel.

How long do I have to file a personal injury case?

Statute of limitation laws vary from state to state, but in Michigan, you have three years to bring a personal injury claim against the at-fault party. Time is always of the essence, so consult an attorney immediately to allow for enough time to investigate your case and pursue the most favorable outcome.

How much money could I recover if I sue for my injury?

Personal injury damages depend on the extent of your injuries and the specific facts of the case. There is no way to tell exactly how much your claim may be worth before we investigate the events that led to your injury. You may be entitled to recover economic damages, such as medical bills, lost income, and property damage, and sometimes noneconomic damages like pain and suffering.

How do I know if I have a case when I have been injured?

The simple answer is that you have a personal injury case when another person’s negligence caused your injury. This may be difficult to prove, so it is important to contact a personal injury attorney like the lawyers at Sommers Schwartz. We will review the details of your case and determine who may be potentially at fault.

How does a birth injury differ from a birth defect?

A birth injury usually occurs when something goes wrong during labor and delivery and the baby is harmed. A birth defect is a physical or chemical abnormality that develops before birth and may be inherited, or the result of an environmental influence.

How do birth injuries typically occur?

Countless situations can result in harm to baby or mother during labor and delivery, but many birth injuries result from oxygen deprivation, the use of excessive force during delivery, or the delay of a cesarean section when one becomes necessary.

What are some common birth injuries?

Common birth injuries include fractured collarbones or arms, shoulder dystocia, bruising to the face and head, brain damage, cerebral palsy, and Erb’s palsy. Some birth injuries may be resolved without lasting damage, while others cause lifetime disability or death.

I have not been able to work since my car accident, and money is tight. How can I afford to pay a lawyer?

The attorneys at Sommers Schwartz work on a contingency fee basis. This means you only pay for our legal services after we have successfully won or settled your case. Your initial consultation is free, and absolutely no payment is required until we get you a favorable outcome.

Can I recover damages for pain and suffering resulting from my car accident?

To obtain damages for the pain and suffering you sustain in an auto accident, you must meet four requirements:

  1. You must establish that another driver was at least 50 percent at-fault for causing the crash.
  2. You must demonstrate you were injured in the accident, which you can do with medical records and other documentation. 
  3. You must prove your injuries resulted from the accident and not another cause.
  4. You must prove that you (or a loved one) “suffered death, serious impairment of body function, or permanent serious disfigurement.” 

This last element is considered a “threshold injury,” and without it, you cannot recover damages for pain and suffering.

What are the potential damages I can recover after my car accident?

Under Michigan’s no-fault laws, when a motor vehicle accident results in bodily injury or death, you may be entitled to damages in four categories:

  • Allowable Expense Reimbursement, payable for life without a cap, includes expenses for medical treatment, barrier-free residential accommodations, vocational rehabilitation, special transportation and medical mileage, guardianship or conservatorship fees, and the services of an independent case manager.
  • Work Loss Benefits compensate an injured person who is unable to work because of a motor vehicle accident. There are various limitations and restrictions, including a monthly maximum that is adjusted every year.
  • Replacement Service Expenses include the cost of having others perform necessary housekeeping, meal preparation, and yard work. An injured person may receive reimbursement of up to $20 per day for those costs if he or she cannot perform those activities.
  • Survivor’s Loss Benefits may be paid to the dependents of a person killed in an auto accident for up to three years and are subject to the same monthly maximum of the work loss benefits.

Why should I hire a lawyer after my car accident when I have car insurance?

If you are injured in an auto accident, you cannot rely on your insurance company (or another party’s insurer) to look out for your best interests. Auto insurance companies are notorious for finding any reason to reduce your payout, and you cannot rely on them to recover damages for your injuries.

Michigan is a no-fault state, meaning insurance companies will pay up to a certain amount for injuries and damages sustained in an accident regardless of who caused it. Under a no-fault system, there are limited options for suing for damages. Because every accident is unique, however, an experienced attorney, like the lawyers at Sommers Schwartz, will fight for your rights and make sure you are treated fairly by the other parties and insurance companies involved.

How long do I have to file a medical malpractice claim?

The statute of limitations for medical malpractice cases varies from state to state. In Michigan, you have two years from the date of the healthcare professional’s negligent act or omission to file a medical malpractice claim. If the malpractice resulted in the patient’s wrongful death, you have additional time to file. If a patient (or a deceased patient’s loved ones) do not discover the negligence until after the two years have passed, he or she has six months from the time he or she discovered or should have discovered the malpractice – but no more than six years after the act or omission – to bring a claim.

Plaintiffs pursuing medical malpractice claims in Michigan cannot immediately file a civil lawsuit. Instead, they are first required to give written notice – a notice of intent – to the healthcare professional accused of malpractice.

Because of the complexities in initiating and proving a medical malpractice action, you should consult an experienced attorney, like the attorneys at Sommers Schwartz.

How do I know if I have a potential medical malpractice claim?

A successful medical malpractice claim has three essential elements:

  • Existence of a doctor-patient or provider-patient relationship. You must show that you sought medical treatment from the healthcare provider and that the provider agreed to treat you. Establishing this relationship is not difficult if the doctor or other medical professional saw and cared for you or provided a consultation
  • The doctor or provider violated or deviated from the standard of care. You must establish that the way the physician or provider diagnosed or treated you deviated from or violated the standard of care that a reasonable and prudent professional of similar training would have followed under the same or similar circumstances.
  • The doctor’s or provider’s negligence caused you specific harm. You must prove that the healthcare provider’s negligence (deviation from the standard of care) caused or contributed to your injuries. Sometimes, the causation is clear, but where other factors, diseases, or conditions are present, it may be more difficult to show the connection between substandard care and a specific injury. Specific harm may include physical or emotional pain, additional treatment you would not have otherwise needed and additional medical bills, loss of income, or lost earning potential. 

What are common types of medical malpractice claims?

Medical malpractice involves the professional negligence of licensed healthcare practitioners and healthcare facilities. The details of each malpractice victim’s experience are unique, but most medical negligence cases arise in these circumstances:

  • Failure to diagnose. A doctor may wrongly interpret diagnostic tests, overlook test results, or neglect to order tests that would provide an accurate diagnosis. Had the physician properly diagnosed the patient’s condition, the patient could have received appropriate or more timely treatment and had a better outcome. 
  • Improper treatment. A healthcare provider may treat a patient in a way that differs from the treatment that most providers in the same situation would have rendered. If a provider fails to provide “to the patient, the patient may seek compensation for his or her economic and non-economic injuries. 
  • Failure to warn patients of potential risks. Healthcare providers have a duty to inform patients of the risks associated with a procedure or treatment. When a risk that a patient would not have otherwise undertaken becomes a reality, the provider may be held liable for medical malpractice.

What steps should I take after a car accident?

Car accidents can happen so quickly that the impact of the collision may cause victims to feel confused, upset, or overwhelmed. In the aftermath of an accident, it is hard to know what to do next. Be prepared for what to do in the aftermath of a car collision by following these steps:

  1. Under Michigan law, drivers must stop immediately after an accident. They must move their vehicles out of the way of traffic, but only if it is safe to do so without causing further damage to the cars.
  2. Even in a minor crash, call 911. Check to be sure everyone involved is out of immediate danger and see who needs immediate medical attention.
  3. Someone who is not injured should take pictures of the accident scene and the surroundings.
  4. Exchange contact information, registration number, driver’s license, vehicle owner’s information with the other motorist(s) involved in the accident. Unless it is unsafe, any driver involved in a car accident who leaves the scene may face jail time, a fine, or both.
  5. Speak to any witnesses of the accident and exchange information with them.
  6. Even if the accident was minor, seek medical attention. Many injuries may not manifest right away. Keep all receipts from doctor visits, medications, and treatments.
  7. Obtain the police report of the accident. Check that all the information is accurate and correct.
  8. Inform your insurance company of the accident. Do not speak to the other driver’s insurance company without a lawyer.
  9. Contact an attorney to advise you about your rights to compensation for your injuries and damage to your vehicle.

Is Michigan a no-fault insurance state?

Yes, Michigan is a no-fault insurance state. All parties involved in an accident can receive compensation from their insurance companies, regardless of fault, and state law requires all drivers to have no-fault insurance.

The no-fault insurance policy has three parts: Personal Injury Protection (PIP), Property Protection Insurance (PPI), and Residual Liability Insurance. Personal Injury Protection covers the injuries and damages of the insured, regardless of who is at-fault in the accident. The person in the car accident files a PIP claim against his or her own insurance company to seek compensation.

Property Protection Insurance provides coverage for damage that an at-fault driver’s vehicle causes to properly parked vehicles or fixed properties such as buildings or lampposts. It does not cover damages to the other vehicle(s) involved in an accident unless parked. Michigan drivers must have PPI to obtain license plates.

Residual Liability Insurance covers bodily injury to the other drivers or passengers of other vehicles who suffer an injury that meets the threshold in a Michigan accident caused at least in part by your negligence. It also covers damages over and above the personal injury protection limits. In an out of state accident, it covers the damages allowable under the laws of that state.

How much time do I have to file a car accident lawsuit in Michigan?

After a car accident, victims of the collision or their families may want to bring a claim against the at-fault driver. To file a lawsuit and obtain compensation for injuries and damages, car accident victims need to be aware of the amount of time they have to initiate an action, also called the statute of limitations.

Under Michigan law, a victim has three years from the date of the car accident to file a lawsuit against the other driver. If the victim does not file his or her lawsuit within the time limit, the law may prevent him or her from ever suing the driver responsible for the accident.

If the other driver is uninsured or underinsured to fully compensate you for your injuries, and you purchased uninsured or underinsured motorist benefits, you have a claim under your own insurance policy to collect those benefits. The statute of limitations for breach of contract is six years, but many policies have language shortening the period of time to bring an uninsured or underinsured motorist claim, some as short as one year. Attorneys are familiar with reading policy language and can determine the time frame for bringing your claim.

Should I hire a lawyer after a car accident?

Michigan state law outlines what drivers must do after an accident. Drivers must give their contact and vehicle information and file an accident report with the police. However, Michigan law does not advise drivers about whether they should hire a lawyer after a car accident.

There were 24,687 car accidents in Detroit in 2017. Automobile accidents, even those that seem like minor collisions, often turn out to be complex. Many cases involve legal concepts such as negligent operation of the motor vehicle, driving while under the influence, and comparative negligence. Many serious injuries are not apparent immediately after the accident. Understanding and tackling such obstacles alone is not recommended.

Immediately after a car crash, you should consult a lawyer. Even if the accident is your fault, you are entitled to certain benefits from your own insurance carrier. These benefits include things like lost wages, medical expenses, replacement services, and attendant care. These benefits, which are due irrespective of fault, can be significant and insurance companies often do not pay the full benefits to which people are entitled. Attorneys have the legal knowledge and training to know how to proceed with an insurance claim or lawsuit.

Are there special class action lawyers?

Any lawyer licensed to practice can file a class action lawsuit on behalf of his or her client. But class action lawsuits and multidistrict litigation are complex and require attorneys with specialized skills and firms with tremendous resources. Thus, it is wise to retain an experienced class action lawyer.

The attorneys in Sommers Schwartz’ Class Action group have the background and skills to pursue class actions and MDL litigation across the country. We have successfully brought and resolved class actions in unpaid wage and overtime cases, complicated insurance matters, consumer cases, RICO and antitrust actions, securities cases, and pharmaceutical drug and medical device cases. Whether you are a consumer, business or municipality with an issue worthy of class action or MDL consideration, we would be happy to discuss your case.

What does it mean to “opt in” or “opt out” of a class action settlement?

In certain types of class actions, a member of the plaintiff class (those bringing the lawsuit) may decide to participate (opt in) or not participate (opt out) in a negotiated settlement. A class member may choose to opt out in favor of bringing an individual lawsuit. Unless the class action notice indicates otherwise, class members who do not opt out are bound by the terms of the settlement.

Why do courts use class actions and MDLS?

Class action lawsuits and MDL litigation are both effective in leveling the playing field when individuals or small businesses sue powerful organizations. Like most of us, courts have limited resources, and class actions and MDLs provide a method to process the same legal and factual issues together. This efficiency extends to the defendants, too, who are saved from having hundreds of people answer questions hundreds of times by hundreds of different lawyers in several courts in multiple states.

Class actions and MDLs avoid that chaos, reducing the cost of expensive litigation for everyone and allowing courts to attend to other cases. They are valuable tools for seeking compensation, implementing an injunction, or determining the legal rights of a large group of people all at one time and in one court.

What is multidistrict litigation?

When several individual lawsuits arising out of the same basic facts are filed in multiple federal courts, the cases can be coordinated into one district court. This process is known as multidistrict litigation, and the coordinated action is referred to as an MDL.

The judge in an MDL oversees all pretrial activities, just like a class action, and achieves many of the same efficiencies. Unlike a class action, however, an MDL preserves the individual’s claim separately – there is no class or class representative, just hundreds or even thousands of individual lawsuits assigned to one judge for pretrial proceedings.

What is the advantage of a class action over an individual lawsuit?

Quite simply, a class action is often a more efficient form of litigation, both for the litigants and for the courts. Further, a person’s individual claim may be too small to pursue cost-effectively, so combining several people’s similar smaller claims into a larger pool of plaintiffs can justify the expense of litigation – especially against large corporations – and improve the chances of a successful outcome.

What types of claims may be brought as class action lawsuits?

In general, many claims involving product defectsantitrust violationsviolations of consumer protection (false advertising and deceptive sales practices) lawswage and overtime violations, illegal background checks, ERISA and insurance disputesmass tortssecurities fraud, and shareholder oppression are best pursued as class actions. Both state and federal courts hear class actions, and the procedures are generally the same. In some cases involving violations of certain federal statutes, the class action can only be brought in federal court.

What is a class action?

A class action is a lawsuit filed in state or federal court by a person, business, or small group who share a similar legal claim with a large number of other people, businesses, or groups. An example of a class would be all individuals who purchased a defective product and were similarly harmed by the product. If a court determines that the person or group who filed the lawsuit adequately represents the interests of the entire class of people injured by the wrongful conduct or negligence of the defendant (such as the manufacturer of a defective product), they can be “certified” as a “class” allowing the lawsuit to proceed as a class action. Once the lawsuit has been resolved by way of a settlement or verdict, all the members included in the class are bound by the outcome unless they affirmatively opt-out of the settlement.

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