Birth injuries: Frequently Asked Questions

The birth of a child should be a joyous occasion for families, but when a child is born with a birth injury, what should be a happy event can be the beginning of considerable heartache and stress for parents, as well as potentially lifelong health complications for the child. 

If your child suffered birth injuries or trauma during the delivery process, you’re likely going through unbearable pain. You might also have many questions and wonder whether you should contact a birth injury lawyer.

Here are some questions that parents frequently have that can provide a good starting point for your consultation with an experienced birth injury attorney. 

Q: What is a birth injury?

A: Sometimes referred to as birth trauma, a birth injury may be caused by natural complications during labor, by something that went wrong during delivery, or a medical error made by a doctor or other medical staff.

Q: What’s the difference between a birth injury and a congenital disorder?

A: While birth injuries occur during delivery, congenital disorders are conditions that existed before birth such as birth defects, cleft palates, down syndrome, spina bifida, and heart conditions. Congenital disorders include conditions that may be caused by environmental factors during pregnancy such as smoking or alcohol consumption or may be inherited from a parent. 

Q: Birth can sometimes be traumatic for both the mother and child — is there a way for parents to know that a birth injury was specifically caused by medical malpractice?

A: Not all birth injuries are due to medical malpractice. Some birth injuries may be unavoidable.

However, a birth injury may have been caused by medical malpractice if a doctor or other medical professional acted negligently or failed to use reasonable care during delivery, which caused the child severe harm.

If an injury occurred due to a mistake that could have been prevented, parents might have a claim for medical malpractice. An experienced birth injury attorney is able to assess if a doctor was negligent in your specific case.

Q: What is the standard by which a medical professional can be held liable for negligence in a birth injury lawsuit?

A: A medical professional’s actions are held to the medical standard of care applicable to the circumstances under which the infant was injured. Specifically, a court will consider whether his or her actions were comparable with those of another provider with the same training in a similar setting to determine whether they deviated from the standard of care.

For instance, an obstetrician would be held to the same standard of care as other obstetricians in the community — not the same standard as an emergency room surgeon or registered nurse. If it is determined that the doctor acted according to the standard protocol, a doctor will not be held liable.

A doctor may be held accountable for a birth injury if he or she deviated from the expected standard of care expected during labor and delivery. 

Q: What are some examples of situations in which a medical professional may have been negligent?

A: If a doctor’s improper use of forceps or a vacuum extractor to assist in the delivery caused your child’s injuries, they may be held liable for medical malpractice. Other examples may include failing to diagnose an infection in the mother or baby prior to birth, using excessive and unnecessary force during the delivery, and failing to intervene when labor lasts too long by calling for a cesarean section, if necessary.

Q: What kinds of birth injuries can occur due to medical malpractice?

A: Some common birth injuries that occur due to medical malpractice may include:

• Erb’s palsy — Brachial plexus, Erb’s palsy, and Klumpke’s palsy occurs when the brachial plexus nerves are damaged or torn during vaginal delivery. The brachial plexus nerves are located in the shoulder and upper arm. Erb’s palsy is an injury typically caused by excessive force to the head and shoulders during birth.
• Facial paralysis — If a doctor applied too much pressure during the delivery and damaged a facial nerve, the child may have permanently lost full functionality.
• Brain damage — If the brain doesn’t get the supply of oxygen it needs during delivery, the baby can suffer from brain damage caused by a variety of conditions, including perinatal asphyxia, hemorrhage, hematoma, caput succedaneum, and kernicterus. Lack of oxygen can also lead to periventricular leukomalacia, a condition that can cause cerebral palsy and epilepsy.
• Cerebral palsy — Oxygen deprivation, undiagnosed maternal infections, C-section delays, and head trauma during delivery are common causes of cerebral palsy and may be a result of medical malpractice.
• Fractures — Clavicle and collarbone fractures are common during delivery and generally resolve quickly. However, if forceps are improperly used or too much force is applied, an infant may sustain a skull fracture. Depending on the severity of the injury, a skull fracture may cause bleeding in the brain, brain damage, paralysis, developmental delays, and neurological issues. 

Q: Do some birth injuries not appear until years later?

A: While some birth injuries are apparent within days of a child’s birth, others may not become obvious until the child is in school and they show signs of developmental delay. In some cases, a learning disability can be the result of undiagnosed maternal infections or birth asphyxia (lack of oxygen) during the delivery process. Birth asphyxia can also cause cerebral palsy or hypoxic ischemic encephalopathy, which can cause developmental delays.   

Some research has also suggested that birth injuries or lack of oxygen at birth may be linked to autism, ADD, and ADHD.  

Q: How are maternal infections linked to birth injuries?

A: If an infection such as Group B Strep or meningitis is left undiagnosed or untreated in the mother, it can be transmitted to the baby before birth. Such infections can lead to brain damage, developmental delays, and learning disabilities.

Q: Can an anesthesiologist or doctor be held liable for negligence in administering an epidural?

A: While epidurals are meant to ease the mother’s physical pain during the delivery process, if they are administered negligently or incorrectly, birth injuries may occur. For instance, a medical professional may be held liable for negligence if they administered the epidural at the wrong time, to the wrong area, or used too much medication. Additionally, since epidurals slow down the birth process, forceps or a vacuum extractor may need to be used during the delivery process, increasing the risk of injury.  

Q: How can a birth injury lawyer help a family after a birth injury has occurred?

A: If your child has suffered from an injury that you believe was caused by a medical professional’s negligence, it’s important to speak with a birth injury attorney as soon as possible to learn about your legal rights. A birth injury attorney can investigate your claim and gather the necessary medical documentation to prove your case. They can also help you obtain the financial compensation you and your child deserve in the event that a medical professional was negligent.

Q: What kind of compensation is awarded in a birth injury lawsuit?

A: If a jury determines that your child’s injuries were the result of medical malpractice, you may be eligible to receive compensation for unreimbursed medical expenses and the costs of ongoing medical care. You may also be able to recover non-economic damages on behalf of your child for their pain and suffering. A lawsuit may instead resolve in a settlement agreement, which can also lead to substantial compensation.   

Q: How long do you have to file a birth injury lawsuit?

A: Every state has its own statute of limitations to file a lawsuit for birth injuries caused by medical malpractice. An experienced birth attorney in your jurisdiction can advise you of how long you have to file a claim.

If your child experienced birth injuries during delivery due to a doctor’s negligence, you and your child may be entitled to compensation for economic and non-economic damages. A knowledgeable medical malpractice attorney can best inform you of your remedies and guide you through the legal process.