In short, the answer is, "It depends." Every year, approximately one out of every 33 babies in South Carolina is born with a birth defect. The fact is that the cause of most of these birth defects is unknown. In cases where the cause of the defect cannot be identified, it can be very hard to prove medical malpractice.
Birth defects happen when the baby is still developing in the mother's womb. Many of the defects occur early in the pregnancy. Sometimes they even occur before the woman knows she is pregnant. While some defects can be prevented, others cannot. For example, some birth defects are caused by genetics. Others are caused by the mother’s actions during the pregnancy, such as using drugs or alcohol.
In addition, certain medications have been linked to birth defects. These medications are known as teratogens. The acne medication Accutane is a well-known example of a teratogen. Other examples include Bendectin, which is prescribed to help pregnant mothers with nausea, and Delalutin, which is prescribed to help prevent miscarriages.
If you are considering filing a medical malpractice lawsuit for your baby's birth defect, it is important to try to identify the cause of the defect. Medical malpractice law in South Carolina requires you to prove that a pharmaceutical company and/or a medical provider failed to provide you and your baby proper care or advice during the pregnancy or delivery. Legally speaking, you must be able to prove that the provider or company failed to meet the applicable standard of care.
Where the cause of the birth defect cannot be identified or the mother's actions are to blame for the defect, it may be difficult to succeed on a medical malpractice claim. This is because causation is a key factor in medical malpractice claims. Not only must you determine what the applicable standard of care is, but you must also show that the provider or company's actions caused your baby's birth defect.
It is important to remember that every case is different. To assess the strength of your medical malpractice claim, you should contact an experienced attorney who can help you understand your options.
Source: SCDHEC.gov, "Birth Defects Information and Data," Accessed April 26, 2015