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:
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.
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.
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
– The use of forceps or vacuums in delivery is linked with soft tissue trauma
- 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.
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
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
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
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.
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.
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.
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
- Negligent use of forceps, vacuum, or surgical
- Failure to detect or diagnose a dangerous
- General disregard of proper medical care
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 compensation of plaintiffs in
a lawsuit is listed as “damages.” Birth injury damages may include:
or General Damages – To compensate for your child’s emotional pain and
Damages – To cover losses like past and future medical expenses and lost
Damages – To punish wrongdoers for gross negligence, misconduct, or extreme
What Birth Injury Compensation Can Be Awarded to
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
What Are the Legal Elements in a Birth Injury
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
- 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
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