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Your baby is suffering from complications at birth. But could they have been prevented?
Did your healthcare provider make a mistake that caused your baby to be injured? Some injuries aren’t preventable, but others could be the result of an error or omission by your doctor. Here are some common complications that could be the result of birth injury medical malpractice.
No parent-to-be wants to consider that their baby could be injured at birth.
Some people jump into pregnancy with the fearless determination of a warrior—convinced that with good prenatal care, a healthy lifestyle, and following the “rules” and guidance of an endless supply of books and websites, they will ward off any unfavorable outcomes.
Others hope for the best, but take it as it comes, knowing healthy babies have been born in all circumstances, all over the world, since the beginning of time.
Regardless of your attitude, preparation, or prenatal care, sometimes birth injuries can’t be prevented. However, sometimes they can—and should—be anticipated, prevented, or remedied instantly following birth. It’s your provider’s responsibility to anticipate, diagnose, and treat a birth injury when it is foreseeable. Failure to do so could be medical malpractice, and that’s a call to a birth injury lawyer.
Do you need a birth injury attorney?
You might want to consult a birth injury lawyer if:
- Your child suffered injuries during pregnancy, labor, or delivery;
- You or someone else observed signs of medical negligence;
- Your child has a condition such as cerebral palsy, brain damage, or another birth-related disability; and
- The injury resulted in significant medical expenses or long-term care needs.
Is a personal injury attorney also a birth injury attorney?
Sometimes, yes. A birth injury attorney is a type, or subset, of a personal injury attorney.
A birth injury attorney specializes in cases involving injuries to newborns or pregnant women due to medical negligence. A personal injury attorney who has litigated birth injury claims likely has more knowledge and expertise to focus on cases involving cerebral palsy, brachial plexus injuries, hypoxic brain damage, and other complications.
Certainly, any birth injury lawyer is likely to consult medical experts for these very complex cases, but it helps for the attorney to also have a base of knowledge about these specific injuries and their causes.
A personal injury lawyer is more likely to handle cases like car accidents, slip-and-fall, other types of medical malpractice, and workplace injuries.
What is the most common type of birth injury?
The most common type of birth injury is swelling or bruising of the baby’s scalp, usually minor.
Scalp swelling (caput succedaneum) involves the soft tissues of the scalp. Usually, this is caused by pressure from the birth canal during a delivery that’s difficult or when the baby’s head is especially large. Swelling usually resolves within a few days, though it’s generally monitored closely by a healthcare provider.
Cephalohematoma involves bleeding between the skull and the outer layer. Sometimes it’s detected as a raised bump on the baby’s head, like a bruise. The best course of action is usually to monitor and allow the baby’s body to naturally reabsorb the blood clot. Some cases require surgery if there is a skull deformity.
Other common birth injuries include:
- Clavicle fracture (broken collarbone) is the most common fracture during birth. It’s often caused by trauma from a difficult delivery involving a baby in an abnormal position (e.g. breech or transverse position) or a mother with a small pelvis (known as cephalopelvic disproportion). Typically, a clavicle fracture does not require treatment and will heal on its own within a few weeks. Doctors recommend keeping the arm immobilized during that time, but there is generally no cast or surgery for this injury, and the baby will likely make a full recovery.
- Brachial palsy (e.g., Erb’s palsy or Klumpke’s palsy) is a birth injury caused by damage to the brachial plexus—the network of nerves that control movement and sensation in the arms and hands. This injury often occurs during deliveries when the baby’s shoulders become stuck during birth (shoulder dystocia) or doctors don’t take necessary precautions while using delivery tools like forceps or vacuum extractors. Physical therapy may be helpful in treating mild cases, while more severe cases that lead to paralysis may require surgery that could include nerve repair, nerve grafts, or nerve transfers.
- Facial paralysis (facial nerve palsy) like Bell’s palsy can happen when the facial nerve is injured during labor or birth. It can result from excessive pressure on the baby’s face during a prolonged delivery or improper use of delivery tools, and it’s more common in large babies (macrosomia). Maternal health conditions during pregnancy that are known to increase the risk of facial paralysis include high blood pressure, diabetes, and obesity. In addition to birth trauma, facial paralysis can also be the result of genetic conditions or developmental defects. Sometimes newborn facial paralysis resolves on its own, but more severe cases require special feeding, physical therapy, or surgery.
- Subconjunctival hemorrhage occurs when small blood vessels in the eyes rupture. They sometimes appear as a bright red band in the white of the eye. This condition is more common with large babies and prolonged labor and will typically resolve on its own.
Each of these injuries has a possibility of resolving on its own with little medical intervention and without lasting effects. However, there are other—less common—birth injuries that can have lasting, or even life-long, effects.
Birth injuries that could result in long-term effects
Certain birth injuries can be permanent and significantly impact a child’s mobility, cognitive development, and overall quality of life. Some of the most common serious birth injuries include:
- Hypoxic-ischemic encephalopathy (HIE). When a baby’s brain is deprived of oxygen before, during, or shortly after birth, it can result in HIE, a serious condition that can lead to permanent brain damage.
Causes include prolonged labor, umbilical cord issues, placental abruption, and delayed emergency C-sections. HIE can cause seizures, intellectual disabilities, and motor impairments, including cerebral palsy, depending on the area of the brain that’s affected.
Newborns with HIE should ideally be started on cooling therapy within 6 hours of birth to minimize brain damage and long-term effects. - Brain bleeds. Birth-related brain hemorrhages occur when fragile blood vessels in a newborn’s brain rupture, often due to the excessive use of forceps or vacuum extractors, blood clotting disorders (e.g., sickle cell disease), fetal malposition during labor and delivery, premature delivery, or prolonged labor. Depending on the severity, brain bleeds can cause long-term neurological damage, leading to issues such as developmental delays, learning disabilities, or motor impairments.
- Cerebral palsy (CP). This neurological disorder is a type of brain damage that affects muscle control, movement, and coordination. It can result from oxygen deprivation during birth, infections, premature delivery, or medical errors like failing to monitor fetal distress. Babies with CP may experience difficulty walking, speaking, or performing everyday tasks, and they often require lifelong therapy or assistive devices.
- Kernicterus (severe jaundice). If newborn jaundice goes untreated, excessive bilirubin can build up in the brain, causing permanent brain damage. This condition, known as kernicterus, can lead to developmental delays, hearing loss, and cognitive impairment. Failure to diagnose and treat jaundice promptly with phototherapy or a blood transfusion can put a baby at serious risk.
- Spinal cord injuries. Injuries to the spinal cord can result in partial or complete paralysis. They can be caused by cephalopelvic disproportion, shoulder dystocia, breech births, or improper use of delivery tools. Spinal cord damage can lead to lifelong mobility challenges, loss of muscle function, and chronic pain.
While these are only the most common birth injuries, there are many others that can result in long-lasting or lifelong effects.
If you suspect that your child may have suffered a birth injury due to a healthcare provider’s mistake during pregnancy, labor, or delivery, it’s crucial to discuss your case with a birth injury legal expert to determine if medical negligence is to blame.
Can you sue a doctor for a birth injury?
Yes, if the injury constitutes medical malpractice.
What’s the difference between a birth defect and a birth injury?
A birth defect is usually genetic or from exposure to some environmental factor (like smoking, alcohol consumption, lead, etc.) during pregnancy. A genetic defect is not preventable and isn’t anyone’s fault—it’s your baby’s DNA, and you can’t change it any more than you can change the color of their eyes.
A birth injury happens during labor and delivery and could be caused by a doctor’s negligence. If you can prove the doctor, midwife, delivery room nurse, or other healthcare provider was negligent, you would be entitled to compensation for medical malpractice. Learn more
What is medical malpractice?
Medical malpractice is part of personal injury law; it’s professional negligence that is a tort.
Medical malpractice happens when a medical professional’s actions or omissions deviate from the accepted standard of care, and the behavior causes a patient to be injured or ill, or worsens an existing condition or illness.
When is a birth injury eligible for a malpractice lawsuit?
In the context of birth injuries, medical malpractice is when the healthcare provider makes a mistake during the birthing process through their actions or lack of actions that causes harm to the baby.
A healthcare provider could be an obstetrician (OB-GYN), anesthesiologist, nurse, technician, or any other professional within the healthcare facility who provides care. In other words, if your baby develops a disability or dies as a result of your provider’s poor decisions or judgment, you might be able to file a birth injury lawsuit.
For a successful lawsuit, your claim must prove each element of negligence, and proving negligence in a birth injury lawsuit hinges on establishing these key factors: duty, breach, causation, injury, and damages.
Duty
A medical professional has a duty to keep their patients safe and provide appropriate treatment. This includes both the pregnant person and the baby.
Breach
The healthcare provider who deviates from the accepted standard of care during the delivery process might have breached their duty. This would happen if they made a mistake that an equally qualified and trained healthcare provider would not have made in the same situation.
However, the “accepted standard of care” might be different in different hospitals and communities. A hospital in a large metro area with ample resources for emergency C-sections and NICU care might have a different set of operating standards than a physician in a small, rural community. They would be judged by a standard of care for the area and situation in which they work.
Causation
The plaintiff must prove the breach was the direct cause of the injury. If the baby suffers symptoms or a condition that could be attributed to a birth defect (i.e., genetic) or some other factor, then the plaintiff is not entitled to compensation.
Establishing causation can be one of the most challenging aspects of a birth injury lawsuit. There are often other contributing factors that make it especially difficult to prove that the provider’s error caused the injury.
Further, the plaintiff must prove negligence by a “preponderance of the evidence,” which means they must show it’s more likely than not that the provider caused the injury.
Injury
There must be an actual injury or condition caused by the breach. Sometimes, there are scary moments during labor and delivery. But if the baby is ultimately fine, that’s not a cause of action. The plaintiff may file a lawsuit if there is an actual medical injury.
Damages
The plaintiff must demonstrate the extent of the baby’s injuries and resulting financial losses, which include medical expenses and future care needs.
How do you find a birth injury attorney?
For the most part, you’d seek a reputable birth injury attorney the way you would any other lawyer.
Certainly, you can search online, read reviews, visit an attorney’s website, and use other methods to determine whether they might be right for your case. It’s also important to consider recommendations from other families who’ve experienced birth injuries; you can sometimes find this through reviews and testimonials. You might also search news stories with the lawyer’s or firm’s name to see if they’ve had any positive (or negative) relevant history.
Specific considerations for a birth injury attorney:
- Specialty. The lawyer should have experience handling birth injury cases.
- Reputation. Check online reviews and testimonials.
- Knowledge of your state’s laws. Jurisdiction is important. Each state has nuances and variations in how the laws are applied, and you need a newborn injury lawyer who is familiar with the laws in the jurisdiction where you intend to file a lawsuit.
What evidence proves a birth injury with medical malpractice?
Birth injury claims are complex and usually require the testimony of a variety of experts.
Your lawyer will provide evidence that includes:
- Medical records. This can include comprehensive prenatal care records, other information about the mother’s relevant medical history, labor and delivery records, and post-delivery records. The court will require a timeline of events and documentation of any potential medical errors.
- Photos, videos, or other documentation. This can be helpful evidence to prove what happened in the delivery room and shortly thereafter. It might also capture the baby’s condition shortly after birth.
- Witness statements. This includes testimony by nurses, other providers, or family members present during the delivery who might have additional information about the events that transpired.
- Expert witnesses. Obstetricians, neonatologists, or other specialists can provide medical expert testimony. They can testify about the standard of care, whether—in their opinion—the provider breached the standard, and whether the actions directly caused the injury.
What are some common mistakes that lead to birth injuries?
Birth injuries that lead to medical malpractice can be caused by a healthcare provider’s actions or lack of actions when required. Common medical errors include:
- Fetal monitoring errors, like failure to recognize signs of fetal distress like abnormal heart patterns or a lack of oxygen supply.
- Delayed intervention, such as failure to perform a C-section during a breech birth or another situation where the baby is showing signs of distress, increasing the risk of oxygen deprivation and brain damage.
- Improper use of tools, such as forceps or vacuum extractors.
- Medication errors, like incorrect dosage or administration of labor-inducing medications.
- Poor communication between medical team members during delivery.
- Failure to address umbilical cord issues like prolapse or entanglement.
- Failure to recognize maternal complications like uterine rupture or other issues.
- Failure to diagnose or treat maternal infections that could harm the baby, such as Group B strep or chorioamnionitis.
- Failure to detect and manage preeclampsia or gestational diabetes, which can lead to complications affecting both mother and baby.
- Misuse of epidurals or anesthesia errors, leading to complications that can affect both the mother and child.
- Misinterpretation of ultrasounds or prenatal test results, leading to preventable complications during delivery.
What is the most common cause of birth trauma?
One of the most common causes of birth trauma or injuries is delayed birth, which is a labor that lasts more than 18 hours. Pressure on the baby’s brain increases as labor progresses, so the provider should switch to an expedited delivery if the mother is laboring too long.
What is the number one complication of childbirth?
The National Institute of Child Health and Human Development has identified labor that does not progress as the most common birth complication.
What should I do if my baby has a birth injury?
First, get a second opinion. Have your baby evaluated by a physician who is not affiliated with the hospital or birthing center where they were delivered. Ask if that doctor thinks there’s a birth injury that might be medical malpractice.
Second, seek the guidance of a personal injury lawyer in your state who’s experienced in litigating birth injury claims. This is a nuanced and specific area of law within personal injury, and it is best to find a lawyer who’s handled cases similar to yours.
Be sure to inquire about the statute of limitations—the time period in which you must file a lawsuit—in your state and the likelihood of a successful outcome.
It’s important to understand that there are, unfortunately, unethical lawyers who prey upon a prospective client when they are at their most vulnerable. You might have heard about “ambulance chasers” or lawyers who operate a “settlement mill.” Stay away from these types of attorneys—they do not have your best interests in mind.
It violates the American Bar Association’s code of ethics for a lawyer to solicit professional employment through live person-to-person contact when the lawyer’s motive is to provide legal services.
If a lawyer visits you in the hospital, at home, or anywhere and offers to represent you for a birth injury lawsuit, this is a red flag. You should seek them out, not the other way around. While it might seem reassuring to have someone who’s willing to take you under their wing when you’re dealing with a newborn—especially a newborn who is suffering from complications or birth injuries—this person is not going to be there to advocate for you and your child’s long-term needs.
Birth injuries can result in life-long special needs and costs. Your lawyer should understand the longevity and level of need and should be working with medical and financial experts who are equally qualified, compassionate, and experienced.
Your lawyer’s role is to investigate the claim, negotiate with defendants and insurers, evaluate the value of your claim (i.e., how much you should demand in compensation), and settle or litigate the lawsuit, if necessary.
Facing the reality of a birth injury is heartbreaking, and the last thing any parent wants to do is take legal action against a healthcare provider they once placed their trust in. But when medical negligence changes the course of your child’s life, you deserve answers as well as resources to give them the best possible future.
Specialized care, therapy, and long-term medical needs can be overwhelming, both emotionally and financially. Holding the responsible parties accountable isn’t just about justice—it’s about securing the support your child will need for years to come.
Contact an experienced birth injury attorney today to discuss your options and take the first step toward helping your child live their best possible life.
