Are You Eligible to File a Birth Injury Lawsuit?

August 21, 2024

The birth of a child should be a joyous occasion, but childbirth is never easy, sometimes injuring both the baby and the mother in the process. About seven out of every 1,000 babies delivered in the United States sustain some sort of birth injury, the equivalent of approximately 30,000 newborns injured annually. While a fifth of these birth injuries are considered “minor” and may include bumps and bruises, 80 percent are classified as “moderate to severe” and could inflict grievous damage to the baby’s bones, nerves, or brain. In extreme cases, birth injuries could lead to permanent physical and mental disabilities or even death.

All birth injuries are upsetting, but they can be even worse when they are the entirely avoidable consequence of malpractice by medical practitioners and facilities, which could form the basis of a birth injury claim, but are you eligible to file a birth injury lawsuit? Join us as we examine the challenges you may encounter when pursuing litigation over a child’s birth injuries.

Common Birth Injuries

Childbirth can be a grueling experience for child and mother alike, and even births under ideal circumstances can lead to injuries, some of which can be fatal. Birth injuries are responsible for 20 percent of infant deaths, claiming the lives of about 4,000 American children each year, but a non-fatal birth injury can still be enormously detrimental to a baby’s well-being and a family’s finances.

Some of the most common birth injuries include:

Brain Damage

An infant’s brain cells can be harmed or destroyed by oxygen deprivation, blood clots, bleeding in or around the brain (intracranial hemorrhage), and other crises. Birth-related brain damage can take place before, during, or shortly after birth, sometimes because of trauma during delivery and other times because of infections during pregnancy. Indicators of brain damage, which may or may not be immediately obvious, could include:

Scalp lacerations

Low blood pressure, diminished oxygen levels, or other abnormal vital signs

Dulled reflexes

Seizures

Muscle tremors

Trouble eating or swallowing

While babies might recover from milder cases of brain damage, more intensive brain damage could result in major complications like cerebral palsy.

Spinal Cord Damage

Excessive pulling or twisting during birth can damage a baby’s spinal cord, leading to a host of injuries that could sometimes be profound, with such symptoms as:

Noticeable discomfort when moving the spine or limbs

Muscle stiffness or spasticity

Impaired breathing

Coordination issues impacting feeding

Paralysis or weakness of the arms or legs

Catching these and other red flags at an early stage could deeply improve the chances of resolving a child’s spinal cord injuries.

Shoulder Dystocia

Shoulder dystocia is an obstetric emergency in which an infant’s shoulders or arms get stuck after the head has already been delivered. This can lead to bodily injuries, like a broken clavicle or Erb’s palsy, along with deadly levels of oxygen deprivation.

Shoulder dystocia is more likely to happen when the baby is in a breech position (with the feet or buttocks first), the birth weight is over 8 pounds and 13 ounces (fetal macrosomia), the pelvic space is limited, or the pelvic opening is too small.

Erb’s Palsy

Frequently stemming from childbirth impediments like shoulder dystocia, Erb’s palsy (also called brachial plexus palsy or Erb-Duchenne palsy) is an injury of the brachial plexus, a network of nerves in the shoulder that transmits signals for movement and sensation from the spinal cord to the arms and hands. Affecting two out of 1,000 babies born nationwide, this condition comes about when the neck is stretched to one side during delivery.

A child with Erb’s palsy can suffer paralysis in the afflicted arm, along with weakness, loss of feeling, and lack of elbow, wrist, or hand control, and the condition can be temporary or permanent. It should be noted that Erb’s palsy is only one of many brachial plexus injuries, the distinct manifestations of which will be influenced by the nerves that were harmed.

Cerebral Palsy

Cerebral palsy is a group of neurological disorders caused by brain damage, affecting muscle control and tone, movement, balance, coordination, and posture in various parts of the body.

Cerebral palsy tends to develop when the brain is damaged while the child is in the womb or during childbirth, but it might not be diagnosed until the child has reached one or two years of age and symptoms start to become apparent. These symptoms may include:

Delayed growth or speech

Abnormal eye movements and other neurological concerns

Tightness or spasticity of the muscles

Impairment of fine motor skills

There is currently no cure for cerebral palsy, and treatment for the long-term disabilities associated with it could cost more than $1.6 million over the course of a patient’s lifetime – much more than most families have in the bank.

Facial Paralysis

A baby’s facial nerve could be injured because of pressure from labor or birth or from the misuse of forceps during delivery, such that the side of the face with the injured nerve may not move or the eye may not close.

Typically discovered when the baby cries, facial paralysis may improve within weeks if the facial nerve is only bruised, though surgery may be necessary if the nerve has been torn.

Hypoxic-Ischemic Encephalopathy

Hypoxic-ischemic encephalopathy (HIE) is a particularly dire brain injury that arises when the infant’s brain does not receive sufficient oxygen or blood during labor because of infections, lung malformations, heart disease, fetal anemia, placental abruption, or other matters. HIE symptoms may include:

Abnormal movements

Seizures

Weak crying

Not reacting to sights or sounds

Dysfunction of the lungs, kidneys, heart, or blood

In some cases, babies with HIE could be susceptible to developmental delays, cerebral palsy, or even loss of life.

Cephalohematoma

Cephalohematoma or “skull bleeding” is when blood collects between the newborn’s skull and scalp because blood vessels have been broken after pressure has been applied to the infant’s head. This condition often appears as a raised lump within hours of birth.

While the lump generally goes away when the body reabsorbs the blood over the subsequent weeks or months, additional ailments may sometimes emerge, such as anemia, infections, jaundice, and calcifications or hardened bone deposits around the swollen mass.

Fractures

A baby’s bones may be broken during childbirth, with fractures of the clavicle being especially prevalent, usually because of breech deliveries.

An infant with a fractured clavicle may be unable to move the arm on the side with the break, though most newborn fractures should heal relatively quickly.

Stillbirth

Perhaps the most tragic birth injury is the stillbirth or intrauterine fetal demise, in which the baby dies in the womb at or after the twentieth week of pregnancy.

Stillbirth could have a wide range of causes, including infections, placental separation, umbilical cord prolapse, genetic abnormalities, substance abuse, or labor difficulties, among others, and sometimes the cause is completely unknown.

While some of these problems cannot be prevented, others might be remedied with prompt detection. With this in mind, obstetricians and other caregivers have an obligation to watch out for potentially hazardous conditions and take appropriate precautions for a safe delivery. Failing to do so could constitute medical negligence and subject those providers to litigation.

Do You Have Grounds to Move Forward with a Lawsuit?

As you can see, there are numerous ways a child could be injured during birth, turning what should have been the very best moment of a parent’s life into a moment of heartbreak. More than anything, an injury to a precious newborn is fundamentally unfair, and it is natural to want to do whatever you can to alleviate your baby’s suffering, even if it is far beyond your means.

Fortunately, you might be able to obtain those means through a birth injury lawsuit, which is a kind of legal action brought against the parties who harmed your child. Nonetheless, not everyone is legally permitted to initiate such a claim, and not every birth injury merits one. So before you can move forward with a birth injury lawsuit, you will need to confirm that you have grounds to do so.

Right up front, your ability to file a birth injury lawsuit is largely determined by your relationship to the injured child. Each state has its own rules governing birth injury cases, but the plaintiffs are almost always the injured child’s parents or guardians. While you may care deeply for a young relative or family friend who suffered a significant injury at birth, if you are not the parent or legal guardian of that child, you are probably not authorized to file a lawsuit on his or her behalf.

The next factor that must be addressed is whether or not sufficient time remains for you to sue for the birth injury. This will be a function of your state’s Statute of Limitations, which sets the period after an incident within which legal proceedings may be initiated for it. Once the statute for a legal action has expired, you cannot take that action if you have not yet done it.

There are different statutes for different legal actions, and birth injury lawsuits are no exception. In the State of Indiana, for instance, a plaintiff “has until the minor’s eighth birthday to file” a birth injury lawsuit. If you have not filed suit or otherwise concluded your birth injury claim before that date, you could be barred from doing so in Indiana. Again, other states may have different statutes, so it is crucial that you verify the law where you reside.

Assuming that you are a valid birth injury plaintiff and the statute has not expired, there is one final item that must be considered when assessing the viability of your birth injury lawsuit: Do the facts of the birth injury justify a lawsuit?

Most birth injury lawsuits are actually medical malpractice lawsuits (or wrongful death lawsuits if the child has died from a birth injury). Thus, they will need to satisfy the core requirements of medical malpractice lawsuits in order to be successful, and an unfavorable health outcome in and of itself is not proof of medical malpractice.

Instead, malpractice is said to occur when a medical provider exhibits negligence by deviating from the established protocols of the medical community, known as the “standard of care.” A practitioner deviates from the standard of care by not treating a patient the same way that another competent practitioner working in the same context would have treated him or her.

When medical negligence causes direct harm to a patient, it could justify a medical malpractice lawsuit – or, more specifically, a birth injury lawsuit when the harm is injury to a child at birth. Examples of medical negligence that could lead to a birth injury may include:

Failure to screen for high-risk conditions during pregnancy

Exerting too much force during delivery

Misapplication of delivery tools, such as forceps or vacuum extractors

Neglecting to monitor fetal distress or heart rate

Delaying a C-section

Not monitoring the baby’s oxygen levels after delivery

Disregarding signs of infant distress

Ignoring jaundice

Overlooking blood type compatibility

For a birth injury lawsuit to prevail, you will have to establish four elements:

A duty of care was owed – The medical practitioner took the mother and baby on as patients and therefore owed them a duty of care.
That duty of care was breached – The treatment provided to the mother and baby deviated from or “breached” the accepted standard of care.
That breach caused injury – The practitioner’s breach directly caused the birth injury.
Damages were incurred – That injury resulted in loss.

If you cannot establish that your child’s birth injury was indeed caused by a breach of duty on the part of his or her medical caregivers, your birth injury case will likely fail. But if you can prove all four elements, you might be able to file a lawsuit against the parties liable for your child’s birth injuries.

Who Is Liable in a Birth Injury Lawsuit?

But exactly who is liable in a birth injury lawsuit? Can you only sue a child’s doctor for a birth injury? Can you sue a hospital for traumatic birth? Could anyone else be sued for contributing to a birth injury in any way?

That will depend upon what led up to the birth injury, but the reality is that a variety of individuals and entities could be held liable in a birth injury lawsuit, including:

Doctors

Nurses

Paramedics

Technicians

Pharmacists

Hospitals

Ambulance services

Drug companies

Medical device manufacturers

In some situations, multiple parties may have varying levels of legal liability for the same birth injury, for which they might have varying levels of fiscal liability. Given this inherent complexity, it is critical to go after all of the defendants before the Statute of Limitations elapses if you hope to achieve full economic recovery.

How Hiring an Attorney Can Help

When you file a birth injury lawsuit, the path ahead of you is a daunting one. Medical malpractice cases are some of the toughest in the field of personal injury law, demanding familiarity with the applicable procedures and treatments, legal codes, and professional regulations as you square off against giant healthcare systems and multi-billion-dollar insurance companies. Moreover, it may be impossible to imagine greater stakes than the health of your child, which could be in jeopardy if you make one false move.

This is where hiring a knowledgeable attorney – like the Indiana medical malpractice lawyers at Hensley Legal Group – can help. Once retained, your attorney can launch a comprehensive investigation into the causes of your child’s birth injury and everyone at fault for it. As we have explained, the number of defendants in a birth injury lawsuit can be staggering, and all of them must be identified within the time allotted by law.

But identifying these defendants is only half the battle – a compelling case of medical negligence must be built against every one of them. As such, your lawyer will act swiftly to assemble the materials to do just that, subpoenaing relevant hospital and provider records if it is warranted and joining forces with leading experts in the same field who can offer invaluable insight into medical misconduct.

After putting together an airtight birth injury case, your attorney will work tirelessly to negotiate the maximum settlement available under the law for your family’s losses, which may include:

Medical bills

Estimated long-term expenses

Lost income (because of parental leave)

Pain and suffering

Psychological anguish

Reduced quality of living

Mobility restrictions

Punitive and wrongful death damages (if relevant)

Malpractice insurance carriers and defense lawyers may be more willing to tender a generous settlement when confronted with clear evidence of a child’s losses and the culpability of the defendants. It is a key reason why personal injury plaintiffs with attorneys receive 3.5 times more on average than personal injury plaintiffs without them.

But if your case should go to trial, a seasoned litigator will become indispensable, since plaintiffs who represent themselves in court lose about 96 percent of their cases, while plaintiffs with representation enjoy a statistical advantage. And if your lawyer can paint a detailed portrait of all that this birth injury has taken from your family, you may be able to secure a brighter future for your child.

Standing Up for the Innocent Victims of Negligence

Hensley Legal Group has been standing up for the innocent victims of negligence for more than 25 years, and no victims are more innocent than infants who have been injured at birth. In the wake of such a terrible event, a parent could be overwhelmed by a flood of weighty questions, such as “What went wrong? What should I do now? Are there birth injury lawyers near me who can get justice for my child?” But if you are struggling with these and other questions, please know that Hensley’s Indiana medical malpractice attorneys are ready to get you the answers.

To schedule a free consultation with one of our dedicated Indiana medical malpractice lawyers, you can call or text us at (317) 472-3333, chat with us online, or fill out our contact form today.