Nurse holding a newborn baby

When Does a Birth Injury or Complication Warrant a Lawsuit?

Legal AssistantMedical Malpractice, Personal Injury Law

If there ever were a time when qualified medical care was critical, it would be during the birth of a newborn child. Expectant parents want their children to be born healthy. That last thing they expect to hear is that complications during birth and delivery have resulted in a birth injury. Unfortunately, these types of injuries usually cause a permanent disability in the baby.

When does a birth injury or complication warrant a lawsuit? Here’s everything you need to know.

Birth Injuries vs. Birth Defects

The main differentiator between a birth injury and a birth defect has to do with how they develop.

A birth injury occurs during the birth and delivery process. It may include physical trauma to the head and brain hemorrhage.

A birth defect is an abnormality that develops while the child is still in the mother’s womb. According to the Centers for Disease Control and Prevention (CDC), a birth defect usually develops within the first trimester of pregnancy. An untreated infection, family medical history, and drug and alcohol use are some of the most common factors that increase the risk of a child in utero developing a birth defect.

Birth Injury Causes

A birth injury can result from brain damage brought about by several conditions and risk factors that may be present during childbirth. Each cause is unique and can give rise to several different types of birth injury.

One of the most common causes of birth injuries is delayed birth. Labor that persists for more than 18 hours would constitute a delayed birth. As time goes on, pressure in the infant’s brain continues to mount. This can lead to high blood pressure and fetal distress, resulting in a stroke or other heart-related complications.

Oxygen deprivation is another common cause of birth injuries. It can result from underdeveloped lungs in an infant born prematurely or a prolapsed umbilical cord which occurs when the cord slips into the birth canal ahead of the infant. In both cases, the baby’s oxygen supply is limited or, in severe cases, cut off completely, causing a birth injury.

What Is the Most Common Birth Injury

The most common birth injuries infants sustain during childbirth include cerebral palsy and brachial plexus palsy. Here’s an overview of each.

What Is Cerebral Palsy

Every 2-3 out of 1,000 infants are born with cerebral palsy. It is a disorder that affects posture, muscle tone, and movement. Cerebral palsy symptoms include muscle spasms, weak muscles, and a lack of motor skills development.

Cerebral Palsy Causes

In most cases, the condition results from brain damage that occurred during childbirth. This stems from extreme hypoxia (oxygen deprivation) due to:

  • Failure to properly monitor the laboring mother
  • Use of improper birthing techniques
  • Failure to monitor or identify signs of fetal distress

While surgery may help the child, cerebral palsy has no cure and will require a lifetime of therapy. The condition can lead to additional health complications, including hearing, vision, and speech impairment, and learning disabilities.

What Causes Cerebral Palsy During Pregnancy

Aside from oxygen deprivation during childbirth, events that occur before birth can interfere with normal brain development while the infant is still in the mother’s womb. Some of the common causes of cerebral palsy during pregnancy include:

Infections During Pregnancy

Parasitic infections like toxoplasmosis and viral infections like cytomegalovirus and rubella (German measles) in an expectant mother have been known to cause brain damage in the fetus, resulting in cerebral palsy in both full-term and premature babies. Reproductive and urinary tract infections also increase the likelihood of preterm delivery, which is another major risk factor for the condition.

Insufficient Fetal Oxygen Supply

If the placenta tears away from the uterus pre-delivery or fails to function properly, it results in insufficient oxygen supply to the fetus. This leads to cerebral palsy.


Preterm infants who weigh less than 3.3 pounds are 30% more likely to develop cerebral palsy compared to full-term babies. In several of these cases, these tiny infants suffer from a brain hemorrhage which can damage the delicate brain tissue, resulting in cerebral palsy.

Blood Diseases

Rh disease – a disorder characterized by the incompatibility of blood types between a mother and her unborn child – can lead to severe jaundice. This causes brain damage and subsequent cerebral palsy.

Birth Defects

Babies with certain genetic disorders, brain malformations, or any other birth defect have a higher chance of developing cerebral palsy.

What Is Brachial Plexus Palsy

Brachial palsy in newborn infants develops from injuries to the network of nerves in the upper spine (the brachial plexus) that serve the arms, shoulders, and neck. These injuries can result in temporary or permanent disability.

Mild cases of brachial palsy result in stretching of the nerve, while severe cases involve tearing or rupturing of the nerves, which then fail to heal properly. In extremely severe cases, the nerve roots may end up getting dislodged from the spine, resulting in total paralysis.

Brachial palsy symptoms in infants include weak or limp arm, wrist, or hand, abnormal arm, wrist, or hand position, bent elbow, shoulder malformation, and problems moving the arm, wrist, or hand.

There are generally two types of brachial plexus palsy: Erb’s palsy and total or “global” palsy.

What Is Erb’s Palsy

ERB’s palsy is a form of brachial plexus palsy named after the doctor who first discovered it – Dr. Wilhelm Erb. It stems from injuries to the upper nerves in the brachial plexus. As a result, the infant cannot move their shoulder although they can still move the fingers.

If both the upper and lower nerves end up getting stretched, it becomes a more severe form of Erb’s palsy, known as total or “global” palsy. In such cases, the infant experiences complete paralysis of the affected arm.

What Causes Erb’s Palsy

The condition comes about during a difficult delivery when the baby’s neck gets stretched to one side, accompanied by downward pressure on their shoulder. In other cases, it might be due to the baby being larger than usual, making delivery difficult. This is often the result of gestational or poorly managed diabetes.

Other factors that may increase the risk of Erb’s palsy include:

  • Breech birth – This occurs when babies are born feet-first, which leaves their arms raised and outstretched. The excess pressure on the nerves in the brachial plexus during delivery increases the risk of injury.
  • Improper delivery – During a difficult delivery, the baby may be pulled forcibly from the birth canal, injuring the nerves on the neck and shoulder.
  • Larger-than-normal infant – If a particularly petite mother is carrying a larger-than-normal baby, it might result in a difficult delivery. This increases the risk of birth injury to the infant.
  • Long delivery – If the second stage of labor (the “pushing” stage) lasts more than an hour, it increases the risk of injury to the infant’s brachial plexus.

Should You File a Birth Injury Lawsuit

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A birth injury lawsuit is a form of legal action that can help families affected by Erb’s palsy, cerebral palsy, and other types of birth injuries obtain monetary compensation. These suits are filed against the parties responsible for the infant’s injuries, who in this case might be the doctors, nurses, or other medical practitioners present at the time of birth.

You can lodge different types of birth injury claims depending on the specific circumstances surrounding your case. These claims can be classified into birth injury malpractice lawsuits or wrongful death lawsuits. Here’s an overview of each.

Birth Injury Malpractice Suits

Medical malpractice occurs when doctors, nurses, or other medical personnel fail to administer quality medical care to the mother and child during the birth and delivery process. When filing a medical malpractice claim, the burden of proof rests on the plaintiff. They need to show that the child’s injury was caused by medical negligence.

It’s important to mention at this point that not all birth injuries are the result of medical negligence. The following four elements of medical malpractice law need to be applied to determine whether there are indeed grounds for legal action.

1. Duty of Care

First, the court seeks to establish the appropriate medical standard of care applicable to the situation that led to the birth injury. For instance, if the defendant in the suit is an obstetrician, the court would look into their actions and compare them to those of other trained obstetricians with similar skill levels working in a similar setting. They would not be compared to, say, an advanced practice registered nurse or an ER surgeon.

The court also considers what medical information was available to the health care worker when the injury occurred. A doctor cannot be liable for something they had no way of knowing at the time of the incident.

2. Breach of Duty

Once the proper standard of care has been established, the actions of the defendant – who in this case would be the doctor, nurse, or other medical personnel – are weighed against that standard.

The court considers what took place during labor and delivery measured against what a similarly-skilled professional would have done in the same setting, based on the facts they had at the time.

You would have to show that another medical professional would have taken a different course of action that would have prevented the birth injury.

3. Causation

This step involves proving that the legal cause of the birth injury was the result of the healthcare professional’s deviation from normal procedure.

For instance, did the obstetrician fail to recognize the signs of a difficult vaginal birth process and fail to order a medically-necessary cesarean section in a timely manner? Is it the reason the baby sustained a birth injury?

Other examples of medical negligence include:

  • Failing to detect signs of an infant in distress, such  as low heart rate
  • Failing to treat a maternal infection such as meningitis
  • Failing to treat newborn jaundice or any other condition that puts the baby at risk of a birth injury
  • Using a vacuum extractor or forceps incorrectly
  • Using excessive force when pulling the baby out of the birth canal

If the injury would have occurred regardless, then there would be no legal causation, a necessary element in proving medical liability.

4. Damages

The last element involves identifying and calculating the monetary losses (damages) and injuries the plaintiff has incurred from the malpractice. Keep in mind that you’ll need a sufficient amount of damages to justify the time, money, and resources required to file a malpractice suit.

Wrongful Death Suits

In severe cases, birth injuries can lead to the death of the newborn or intrauterine fetal demise if the healthcare professional fails to act quickly in response to the trauma. If your child died as a result of preventable mistakes shortly after, during, or before childbirth, you’re eligible to bring legal action against the responsible parties.

Birth Injury Lawsuit Settlement Amounts

A birth injury attorney will help you calculate your case value to determine what your potential payout in the suit would be. Case value refers to how much money your claim is worth, in other words, the settlement amount.

Some of the factors that may affect your case value include:

  • Loss of income due to caring for your child’s injury
  • Past and present medical costs
  • Projected lifetime costs of medical care
  • The severity of the birth injury
  • Existing state limits on settlement amounts

Compensation could be anything from $900,000 to upwards of $10 million, depending on the specific circumstances surrounding your case.

If your child has cerebral palsy, Erb’s palsy, or any other birth-related complication, get in touch with an experienced birth injury lawyer as soon as possible. They’ll evaluate your case and advise whether your claim warrants a lawsuit. If it does, they’ll help you determine how much compensation you’re entitled to and advice on the way forward.

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