Birth Injury Law

After the excitement and stress of pregnancy, labor, and delivery, the last thing you want to hear is that your baby suffered a birth injury. Birth injuries can occur from complications during the labor and delivery process. They can also result from improper prenatal medical care.

FindLaw's section on Birth Injury provides in-depth information about birth injuries, birth defects, and the legal rights of those who have suffered serious injuries. In this section, you'll also find pregnancy safety resources and links to birth injury resources.

Is a Birth Injury the Same as a Birth Defect?

It can be hard to determine if complications are caused by a birth defect or a birth injury. For example, cerebral palsy can be caused by oxygen deprivation during labor. This is an avoidable birth injury. But it can also be the result of an unavoidable birth defect.

It is important to know the difference between a birth injury and a birth defect because a personal injury lawsuit is generally only an option for a birth injury.

Birth Injuries

A birth injury is generally defined as an injury to a baby that occurs during labor or delivery. Birth injuries can result from:

• Medical negligence during labor or delivery
• Improper use of medical devices such as forceps or a vacuum
• Certain prescription drugs
• Failure to diagnose complications, such as preeclampsia

The resulting harm to the baby varies. Common birth injuries include:

• Hypoxia (lack of oxygen, also known as birth asphyxia)
• Shoulder dystocia
• Brachial plexus
• Brain injury

Fetal distress during delivery can lead to many long-term issues, especially if there is brain damage. For example, lack of oxygen can cause cerebral palsy and Erb's palsy.

Improper prenatal care can also lead to birth injuries. If a doctor or pharmacist prescribes medication that causes injury to the baby, you may have a birth injury claim. If this happens, you may sue the doctor, pharmacist, and drug manufacturer.

But not all birth injuries result in a successful legal claim. Sometimes, accidents happen despite a doctor's reasonable care and competent skill.

Birth Defect

Birth injuries are caused by a mistake or accident during the delivery process. Birth defects are caused by something that happened before or during pregnancy. Roughly 3% of all babies born in the U.S. have a birth defect.

Birth defects can be caused by several factors, including genetics and environment.

Many drugs, including some developed to help pregnant women, have been found to contain teratogens. A teratogen is a chemical agent that causes birth defects. A few examples of drugs containing teratogens include:

• Delalutin, a drug for pregnant women to prevent miscarriages
• Thalidomide, a medication used by pregnant women to fight nausea
• Ortho-Gynol, a spermicide

Alcohol consumption or drug use during pregnancy can also lead to birth defects. In these instances, there is generally no chance of a birth injury claim. Other birth defects have unknown causes, which makes recovering damages in a personal injury lawsuit difficult.

Who Can Be Held Responsible for a Birth Injury?

If medical professionals make a mistake during the birthing process, they can be liable for medical negligence.

Many medical professionals and companies can be sued for a birth injury claim:

• Doctors
• Hospitals
• Nurses
• Anesthesiologists

Hospitals can be vicariously liable for their employees' actions. Generally, employers can be vicariously liable if an employee acts within the scope of their employment.

If the birth injury occurred because of a prescription drug, a birth injury claim can be filed against the drug manufacturer. The pharmaceutical manufacturer has a duty to ensure that the drug is reasonably safe when used as intended. If the pharmaceutical manufacturer fails to warn a physician of a drug's dangers adequately, the manufacturer could be liable under the product liability theory of failure to warn.

See Responsible Parties in Birth Injury Cases: Who Can Be Sued? for more information.

Caregiver Malpractice

If you bring a lawsuit against your obstetrician, caregivers, or medical facility, it will be your attorney's responsibility to show the following:

• Medical professionals (obstetricians, physicians, nurses, etc.) owed a legal duty of care to the baby (and the mother, in some cases)
• Medical professionals breached their legal duty of care by acting or failing to act in a manner in which a reasonably competent individual would have, under the circumstances (standard of care)
• Medical professionals' breach of their legal duty of care or standard of care caused harm to your baby (and sometimes, the mother)

To establish that birth injuries were caused by the defendant(s), your attorney will use an expert witness to testify on complex medical procedures and issues in your case. This includes:

• What to expect during a normal pregnancy and delivery
• What could have been expected during the pregnancy in your case
• What actually occurred during the pregnancy in your case (including a specific description of any complication during pregnancy or delivery)
• Physical and medical evidence of harm to the baby
• Opinion as to whether any harm resulted from complications during pregnancy or delivery

Prescription Drugs

A birth injury claim can also result from the use of a prescribed drug or medication during pregnancy.

If your lawsuit for birth injuries is based on the use of a legally prescribed drug during pregnancy, you will need to show:

• The drug was prescribed by a physician, pharmacist, or other health care provider
• You took the drug as prescribed during pregnancy
• The birth injury is not likely due to genetics, heredity, disease, or other factors (an expert witness will testify to this)
• The drug is capable of causing birth defects
• The drug caused the birth injury

These claims are typically brought against pharmaceutical companies, pharmacists, and treating physicians. The claim is based on a theory that the defendant(s) failed to warn the mother of the risk of taking the drug in question.

Proving Your Birth Injury Case

To recover damages for a birth-related injury, you'll likely need to show that medical providers failed to provide you or your baby adequate medical care or medication advice during pregnancy or delivery.

A healthcare professional is liable when their conduct falls below a generally accepted standard of medical care. To establish the standard, your attorney will consult with a medical expert. A medical expert is a doctor who is qualified in the same area of medicine as the defendant.

The expert will review your medical records and determine whether the care provided meets the standard recognized in the profession as being competent and qualified to practice. Your attorney will present testimony from the medical expert to prove the doctor didn't meet the standard of care.

In medical malpractice actions, causation is sometimes a challenge to establish. A malpractice lawyer must show that your health care provider's deviation from the applicable standard of care resulted in your child's birth injury.

Damages in a Birth Injury Lawsuit

If a child suffers harm due to an avoidable birth injury, damages will go to the child (sometimes in the form of a trust).

Recent legislation has limited the amount of certain kinds of damages a plaintiff can recover in a medical malpractice case, such as pain and suffering. But several categories of damages are available, and many are not limited to a specific amount. This includes compensation for medical expenses and loss of future earning capacity.

If a child is born with a birth defect, the parent may also bring a medical malpractice action against the obstetrician or hospital where the delivery occurred. The parent may bring a lawsuit for their own emotional distress from the baby's birth defect.

Have Questions About Your Birth Injury Claim? An Attorney Can Help

Any situation involving avoidable birth injuries should be evaluated for a potential medical malpractice claim.

Due to the complexity of the legal issues involved, seeking legal advice from an experienced medical malpractice attorney is in your best interest. A legal team will be able to determine whether you might have a valid birth injury claim.

Keep in mind that birth injury cases have a statute of limitations (time limit) to bring a medical malpractice lawsuit. If you wish to take legal action, you should do so sooner rather than later. It's in your best interest to contact an experienced birth injury attorney as soon as possible after the injury has occurred. Meeting with a birth injury lawyer can help you understand your options and how to best protect your rights.