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Birth Injury

When Is a Birth Injury Medical Malpractice?

January 21, 2022

A birth injury is considered due to medical malpractice when the negligence or carelessness of a doctor, nurse, midwife, other medical professionals, or hospital results in a baby being injured before, during, or immediately after delivery.  In certain situations, the mother could be injured. The injuries that the infant or mother suffer could have been prevented if the medical professionals had provided timely and appropriate care. 

People affected by such injuries due to medical malpractice may be eligible for compensation. They can file medical malpractice lawsuits to recover costs for medical expenses, loss of earnings, and compensation of pain and suffering.. 

When Is a Birth Injury Medical Malpractice?

Medical malpractice occurs when a hospital or health care professional harms a patient by not following accepted standards of care. Health care professionals are expected to provide high-quality medical care during the pregnancy and childbirth process. They are expected to successfully navigate different complications and give prompt and appropriate medical treatment.

If a child, mother, or both are injured before or during childbirth due to a medical mistake, that mistake could be considered medical negligence. The resulting complications can cause infants or mothers to suffer long-term harm. The health care providers involved can be held accountable for medical malpractice.

Injuries to Mothers

Birth injuries affect children. Nevertheless, mothers can also sustain serious injuries during childbirth when care providers act negligently or recklessly.

For instance, a mother experiencing high blood pressure before delivery may be a sign of preeclampsia. Preeclampsia often causes seizures during delivery. If the doctor fails to note the high blood pressure before delivery and the mother has a seizure during delivery, the mother may have a viable medical malpractice claim to recover for the injuries resulting from the seizure.

Mothers who have undergone a cesarean birth may suffer damaged internal organs due to the surgical instruments used by medical professionals. Mothers may also be harmed if doctors leave disposable medical supplies or medical equipment inside them after a cesarean section. Other kinds of harm that mothers may experience because of medical malpractice include:

  • Infection
  • Uterine rupture
  • Anesthetic complications
  • Failure to take the proper measures to control bleeding

Birth Injuries to Children

Some injuries that newborns commonly sustain that may result from medical malpractice include:

Hypoxic Ischemic Encephalopathy (HIE)

Hypoxic Ischemic Encephalopathy is a type of brain damage that happens when the baby’s brain does not receive adequate oxygen or blood flow. The severity of the damage depends on how long the baby’s brain lacks enough oxygen. HIE can have a variety of effects, such as mild developmental disabilities, epilepsy, or cerebral palsy.

Neonatal Brachial Plexus Palsy

The baby’s shoulder has a group of nerves around it known as the brachial plexus. They send signals from the spinal cord to the shoulders, arms,  and hands. These nerves can be damaged if the baby’s shoulder is stretched, or pressure is applied on the arms during birth. The damage could impede shoulder, arm, or hand movement.


Newborns can die due to the injuries they sustain during labor and delivery. In such cases, parents can file a wrongful death lawsuit for their child.

How Medical Malpractice Causes Birth Injuries

Medical malpractice can cause birth injuries in different ways. The most common ones include:

Failing to Accurately Assess and Respond to Risks to a Mother’s Health

Medical malpractice may arise when a doctor fails to assess and respond to conditions of the mother that could lead to birth complications. The doctor may misdiagnose or fail to diagnose a pregnancy disorder, improperly assess the overall health of the mother and/or fetus in the womb, fail to recognize symptoms or potential problems, fail to order proper tests, or misread or ignore test results. These could result in a doctor mismanaging a  pregnancy or delivery, which could lead to birth injuries.

Administering Incorrect Medications or Dosage

Medication errors are a common type of medical malpractice. They can also cause birth injuries. Medical professionals should know the medications that mothers are taking and monitor them for potential side effects. Failure to do that could be considered medical negligence.

A pregnant woman, for instance, may take certain prescription drugs under the guidance of a doctor. If the drugs cause injury, she may have a claim against the medical professionals who provided the prescription.

Medication given to induce labor can have unwanted effects like excessive contractions which can put additional stress on the uterine muscles. These contractions can reduce blood and oxygen flow to the fetus.,  Severe complications like seizures, brain damage, and even death may occur.

Failuring to Monitor and/or Respond to Signs of Fetal Stress

Doctors can sometimes make mistakes when interpreting ultrasound results before birth or miss signs of an infant being stressed in utero, which can be seen on the electronic fetal monitoring devices. Several factors can cause fetal stress, such as problems with the placenta or umbilical cord and excessive contractions.

Signs of fetal stress usually need an immediate and effective response. Fetal stress often results from low oxygen levels in the fetus, which over time could result in brain damage, cerebral palsy, and several other problems. When a doctor sees that a fetus is showing signs of significant stress, he or she should take steps to prevent injury which may include performing an emergent delivery. Failure to watch or properly use fetal monitoring devices to spot signs of fetal stress could result in birth injuries.

Although the doctor did not cause the stress or trauma in such situations, it was the job of the doctor and his or her medical team to detect the stress and take the necessary action to prevent injuries or reduce their severity.

C-Section Malpractice

Certain factors can make vaginal delivery dangerous. In such situations, cesarean sections may be medically necessary to help prevent birth injuries.

For example, a baby’s heart rate may drop dramatically, there may be placental abruption or the umbilical cord may compressed. Consequently, immediate surgical delivery may be recommended as a safe alternative to vaginal birth.  Cerebral palsy is one of the possible long term effects of an umbilical cord around the neck.

Any unreasonable delay or failure to perform a C-section when the procedure is appropriate can lead to severe birth injuries.

Improper Use of Medical Equipment

Doctors may use obstetrical forceps or vacuum extractors during delivery. They use forceps to grip the baby’s head and try to reposition and guide the baby through the birth canal. Forceps are helpful when birth progress is not as expected. Using them requires a high skill level because mistakes can easily cause birth injuries.

A vacuum extractor has a rubber cup that grips the baby’s head and helps move the baby through the birth canal. Overuse or applying excessive force can make the device harmful to the baby.

The use of forceps or vacuum extractors during delivery increases the risk of birth injuries. Negligent use of the devices can cause injuries like skull fractures, nerve injuries, brain injuries, and even death.

Proving Birth Injury Medical Malpractice

Birth injury lawsuits help people hold doctors and other health care professionals that harmed their children responsible for their negligent actions. However, as with any medical malpractice case, victims bringing birth injury claims have to show that the medical care professional’s actions deviated from the accepted standards of care in that professional’s specialty and location. This can be done by demonstrating the four ds of medical malpractice.

Additionally, it must be shown that the deviation or violation caused the harm that the infant or mother suffered, and there were actual damages incurred.

A Standard of Care Violation

A medical professional will only be found to be at fault legally if it is shown that his or her conduct fell below the appropriate standard of care. That requires first establishing the standard of care that applied when the child or mother was injured.

To establish the standard of care to be applied, the victim’s attorney usually consults with and presents the testimony of another professional qualified in the same field as the defendant. Courts also consider the medical information that was available to the defendant when the victim was injured.

After the establishment of the applicable standard of care, the actions of the defendant are measured against the standard. At this point, a medical expert will assess what was done during the delivery process in comparison to what a similarly skilled health care provider should have done based on the information that was reasonably available at that time.

The Deviation Must Have Caused an Injury

A person will need to prove that the medical professional’s deviation from the appropriate standard of care caused the mother’s or baby’s injury. For example, in the case of a stillbirth, it will have to be proven that the doctor’s mistake led to the baby’s death..

The Injury Must Have Caused Damages

The last step in proving birth injury medical malpractice involves calculating the injuries and losses that resulted from the defendant’s medical negligence and tying the losses directly to the injury.

Gathering Evidence to Prove a Birth Injury Case

Birth injury cases are complex and require gathering evidence to support and strengthen one’s medical malpractice claim. Expert testimony, for example, can make or break a birth injury case. It is necessary to have a specialist who will testify about the applicable standards of care and how a doctor deviated from them and caused the birth injury.

Birth injury attorneys usually obtain expert testimony to strengthen a victim’s case. An attorney will work with other obstetricians, pediatricians, nurses, financial experts, and other skilled professionals to determine if malpractice occurred and establish the compensation that a victim is owed. An attorney will also obtain witness testimony from other people who may have been involved in the labor and delivery process.

Documents of a mother’s treatment during her pregnancy and delivery, as well as records of a baby’s birth and care after being delivered, are crucial in establishing whether malpractice was committed and the degree of the malpractice. As a result, birth injury lawyers usually gather all medical records. They may also obtain the employment records of the medical professionals mentioned in a birth injury lawsuit, which can help show if there have been previous complaints against these professionals.

Compensation for Birth Injuries

Although some birth injuries can heal after a few weeks, some can result in permanent damage. Consequently, a baby that would have been otherwise healthy is made to face a lifetime of pain, disability, and other challenges due to a medical professional’s negligence.

Grants and assistance programs cannot adequately cover the long-term expenses associated with severe birth injuries. Families may suffer lifelong financial and emotional hardship. As a result, birth injury lawsuits typically result in high settlement amounts or verdicts.

Filing a birth injury lawsuit could help families access crucial financial assistance they can use to pay for long-term treatment and help the children heal, thrive, and live independent lives in the years to come. The damages awarded following a successful lawsuit include both economic and non-economic damages.

Economic damages include:

  • Medical expenses
  • Caretaking expenses
  • Special equipment
  • Loss of future earning capacity

Non-economic damages include:

  • Pain and suffering
  • Mental anguish
  • Loss of enjoyment of life
  • Loss of parent-child relationship

How Long Can People Wait Before Taking Legal Action for Birth Injuries?

Statutes of limitations require people to file medical malpractice lawsuits within certain time limits. When the state’s statute of limitations expires, a person may lose his or her right to sue. Filing quickly helps improve a victim’s odds of winning a medical malpractice suit.

Special considerations can be made because birth injury cases usually involve infants, and the injuries may take some time before becoming apparent. Therefore, it is best for people to contact qualified local attorneys once they suspect medical malpractice may be to blame for the birth injury of their child. For Chicago residents, Chicago birth injury lawyers will be of benefit to them in determining the time limits that apply to their case.

Jeffrey M. Goldberg Law Offices free case evaluations to help people find out if they are eligible to file a birth injury claim.

About The Author

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Attorney Jeffrey M. Goldberg has spent his entire professional career handling cases involving birth injury, medical malpractice, product liability and related accidents.