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Birth Injury Lawyer

The legal definition of a “birth injury” is any type of damage to a child before, during, or just after the birthing process. Unlike a birth defect – which occurs in utero and may be caused by genetic mutations, infections, or toxic exposure – a birth injury is typically caused by mechanical trauma and physical pressure. When injury to the fetus or newborn can be traced back to negligence on the part of medical care providers, a birth injury lawyer can represent injured parties in settlement negotiations or court.

Types of Birth Injuries

Birth injuries range from cosmetic to death, and everything between. Common types of birth injuries include:

  • Bone Fractures – Too much pulling or twisting during labor can cause bones to break. Fractured clavicle, connecting the shoulder to the chest, is the most common birth injury. If the baby is too large or poorly positioned, a cesarean section should be performed, rather than attempting the vaginal delivery.
  • Brachial Plexus Injury – The brachial plexus is a bundle of nerves controlling the motion of the arm and hand that can be temporarily overstretched or permanently torn during birth. Also referred to as Erb’s Palsy, factors like gestational diabetes and macrosomia can increase the risk of this birth injury. Most cases can be prevented through cesarean delivery.
  • Brain Damage – While brain damage can be caused by genetic mutations or exposure to toxins, it can also be related to hypoxia or physical trauma in the labor process.
  • Bruising – The use of forceps or vacuums in delivery is linked with soft tissue trauma and bruising.
  • Cerebral Palsy - This common type of neurological damage affects body movement and muscle coordination. Often, medical malpractice is to blame with improper forceps or vacuum use, anesthesia errors, lack of fetal oxygen, failure to monitor birth complications, or delayed cesarean section.
  • Meconium Aspiration Syndrome – When the fetus is stressed before or during labor, the child’s first bowel movement may release before birth, mix with the amniotic fluid, and get swallowed, causing brain damage, pneumonia, or lung collapse.
  • Shoulder Dystocia – When the baby’s shoulders get stuck in the birth canal due to macrosomia or a small pelvic opening, gestational diabetes, multiple births, maternal obesity, or delivering past-due, the baby could end up with a broken collarbone or arm, oxygen deprivation related brain damage, paralysis, shaking, or permanent nerve damage in the arm or hand.

What Causes Birth Injuries?

Causes of birth injuries may include:

  • Difficult or Obstructed Labor – Dystocia, as medical professionals call it, results in physical trauma like broken clavicles or brachial plexus nerve damage, umbilical cord pinching and oxygen deprivation, brain damage, or death. Difficulties may occur when the baby is larger than expected, the mother’s pelvis or birth canal is small, or when the baby presents in breech or transverse positions.
  • Intrauterine Hypoxia – Oxygen deprivation occurs due to damage to the umbilical cord or placenta during birth, which can lead to brain damage, cerebral palsy, neurological or psychiatric disorders.
  • Maternal Health – Poorly managed gestational diabetes can cause premature birth, macrosomia, stillbirth, or other birth injuries. Birth injuries (and fetal deaths) are associated with placental abruption, placenta previa, anemia, and preeclampsia – which limit nutrient and oxygen supply to the fetus.
  • Medication Error – Women may be prescribed improper prescription drugs or improper doses by their physicians that ultimately harm babies in the womb or during premature birth. Physician error, poor handwriting, or off-label drug prescribing may be to blame. In other cases, medication to induce labor may be measured or administered improperly, resulting in a birth injury.  
  • Physician Error – A doctor can be held liable for failing to assess, monitor, or respond to complications during the pregnancy and labor. The courts will consider whether the physician followed protocol and what another reasonable medical professional might have done in those circumstances.

Do I Need a Birth Injury Lawyer?

A birth injury lawyer may be necessary if you suspect your child’s birth injury can be traced back to:

  • Improper handling of the infant.
  • Negligent administering of drugs.
  • Failure to monitor signs of maternal or fetal distress.
  • Negligent use of forceps, vacuum, or surgical tools.
  • Failure to detect or diagnose a dangerous condition.
  • General disregard of proper medical care standards.

While a birth injury lawsuit cannot undo the hardship and heartache your family has suffered, it can provide some measure of comfort for the future care your family can afford, moving forward. It can also ensure that higher medical standards are followed, so others do not suffer the same fate.

What Birth Injury Compensation May Be Awarded to the Baby?

The compensation of plaintiffs in a lawsuit is listed as “damages.” Birth injury damages may include:

  • Compensatory or General Damages – To compensate for your child’s emotional pain and suffering.
  • Pecuniary Damages – To cover losses like past and future medical expenses and lost earning capacity.
  • Punitive Damages – To punish wrongdoers for gross negligence, misconduct, or extreme recklessness.

What Birth Injury Compensation Can Be Awarded to the Parents?

Lawsuits provide compensation for a primary victim’s losses and suffering. But what about the rest of the family, who suffers alongside a loved one? No doubt, a tremendous burden is placed among primary caregivers, whether in lost time off work, emotional distress, loss of spousal relations, or loss of support.

Sometimes parents can collect damages as well. Most jurisdictions allow parents of children with birth injuries to recover some of their pecuniary expenses. Parents can claim lost time off work to care for the injured child. Mothers can claim medical expenses related to the birth trauma, such as vaginal tears, fissures, infections, or lack of anesthesia awareness.

When babies have died of their injuries, additional “wrongful death” damages may be included in the settlement, with provisions for funeral and burial expenses. In rare circumstances, when anxiety, depression, or PTSD can be verified by a medical professional, parents may make a claim for emotional distress.

Who Can Be Sued for a Birth Injury?

The civil courts allow plaintiffs to sue medical doctors, nurses, anesthesiologists, midwives, hospitals, health care facilities, pharmaceutical manufacturers, and other service providers. These parties can be held directly liable or “vicariously” liable, meaning that they are indirectly liable for the negligence of an employee. Drug-makers can be liable for failing to warn physicians of potential risks to mothers and unborn babies.

What Are the Legal Elements in a Birth Injury Claim?

To file a birth injury lawsuit, plaintiffs must prove:

  • A relationship existed with the defendant, where the defendant owed a legal duty of care.
  • The defendant breached that legal standard of care by acting or failing to act reasonably.
  • The breach in duty of care directly caused the baby harm.
  • Harm to the baby caused actual losses.

How Can I Prove a Birth Injury Claim?

Proving the relationship is fairly straightforward, as is proving your medical expenses and losses. Calling in well-respected expert witnesses to testify as to the widely accepted “medical standards” is an important aspect of proving breach in duty of care for birth injury cases. Additional medical professionals may be needed to prove that the baby’s injuries were directly caused by birth trauma and not some other natural cause. 

What Services Does a Birth Injury Attorney Provide?

A birth injury attorney will take a fine-tooth comb to the medical records of mother and baby to determine if proper care was provided throughout gestation and delivery. Birth injury lawyers typically work with a number of medical experts to help substantiate these cases, and fight for maximum compensation, particularly when lowball settlements are offered. Since each state has a filing deadline (called the statute of limitations) for personal injury lawsuits, it is best to promptly fill out a free claim review form with the Legal Helpers to connect with a top-rated law firm in your area specializing in birth injuries.