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Understanding Birth Injuries

According to the Centers for Disease Control and Prevention (CDC), of every 1,000 kids, between 6 to 8 will suffer from a birth injury. That suggests that approximately 1 in every 9,714 individuals in the United States are born with a birth injury. 

Birth injuries occur when an injury or death results to a baby or mother throughout the birthing procedure due to medical negligence, malpractice, a mistake, or improper medical facility policies. Birth injury lawsuits fall within medical malpractice and can be pursued if there is negligent prenatal care. Many things can cause negligent prenatal care, such as failure to determine birth defects, failure to diagnose a disease that could be dangerous to the child or mother, and failure to determine an ectopic pregnancy, a problem where the embryo connects to the outside of the mother's uterus.

All of these birth injuries have something in common: a healthcare professional acted negligently, and that negligence was the sole reason for the baby's or mother's injuries. If you cannot show that the healthcare expert's actions were negligent, then you will not be able to pursue a medical malpractice case. 

Types of Birth Injuries

The two most common conditions that affect a child injured during childbirth are Erb's palsy and cerebral palsy. These conditions are the most common type of brachial plexus palsy and are neurological conditions that lead to difficulty or absence of muscle control or motion. These can occur when a child's brain, nerves, or nerve fibers are damaged previously, during, or soon after birth.

Cerebral Palsy

The CDC reports that cerebral palsy alone affects 1 in 345 children in the U.S., with a greater commonness for kids born preterm or at a low birthrate. The CDC estimates that the lifetime expense of taking care of a person diagnosed with cerebral palsy is $1 million. Cerebral palsy can be separated into two different types of cases: congenital cerebral palsy and acquired cerebral palsy. Congenital cerebral palsy accounts for 85% - 90% of all cases and takes place when a child's brain is harmed prior to or during birth. Acquired cerebral palsy accounts for the remaining 10% - 15% of all cases and is caused by brain damages that occur around 28 days after birth.

There are four main classifications of cerebral palsy, the most common being spastic cerebral palsy. In fact, the CDC reports that roughly 80% of individuals with cerebral palsy have spastic cerebral palsy and sustain one of three types: spastic diplegia/diparesis, spastic hemiplegia/hemiparesis, and spastic quadriplegia/quadriparesis. Spastic diplegia/diparesis mainly affects the legs but can sometimes affect the arms as well (arms are less affected or not affected at all). Spastic hemiplegia/hemiparesis affects only one side of the body and typically affects the arms more than the legs. Spastic quadriplegia/quadriparesis affects both the arms and legs, the body, and the face and is the most severe type of spastic cerebral palsy.

The other three types of cerebral palsy are dyskinetic, ataxia, and mixed cerebral palsy. Dyskinetic cerebral palsy results in substantial difficulty when controlling movement in an individual's hands, arms, feet, and legs and makes it exceptionally difficult to sit down and walk. Ataxia spastic paralysis impacts an individual's balance and coordination, making it tough to walk, make abrupt movements, or make movements that require control, like writing. Mixed spastic paralysis is a condition where an individual has more than one type of cerebral palsy, typically with spastic dyskinetic being the most common type.

Erb’s Palsy

Erb's palsy is a condition in which damage occurs to the arm's primary nerves, which causes paralysis in that arm. This condition is most frequently caused by challenging or abnormal childbirths (even c-sections) or labor, although it can occur later in life due to a traumatic injury.

A brachial plexus is a group of five nerves that connect the spine to the arm and hand, and if these nerves fail to work because of stretching or tears, the condition is called brachial plexus palsy. Erb’s palsy is the most common brachial plexus palsy and involves the upper nerves in the plexus. The most common types of injuries that occur with Erb’s Palsy are avulsion, rupture, neuroma, and neurapraxia. An avulsion is the most common injury and happens when the nerve tears away from the spine. A rupture takes place when the nerve is torn but not from the spine. A neuroma is when a nerve tares but heals and leaves a scar on the tissue; this scar tissue then puts ongoing pressure on the injured nerve and keeps it from conducting signals to the muscles. Neurapraxia happens when a nerve is stretched but not torn and is the most common type of brachial plexus injury.

If you believe that your child exhibits signs of cerebral palsy or Erb’s palsy, it is crucial to contact your doctor or nurse and or even see a specialist.

Regrettably, medical malpractice can result in several other types of birth injuries as well, such as:

  • Brain damage- physical injury to the brain during childbirth
  • Hypoxic-ischemic encephalopathy- when the brain doesn’t receive enough blood flow or oxygen for a certain amount of time
  • Intrauterine fetal demise- the death of a baby in the uterus (also known as “stillbirth”)
  • Kernicterus- a type of brain damage that results from high levels of bilirubin in a baby’s blood that can lead to cerebral palsy and hearing loss
  • Caput Succedaneum- swelling of a newborn’s scalp, usually the result of pressures on the baby’s head during a difficult/prolonged head-first delivery
  • Newborn cephalohematoma- bleeding under the baby’s scalp that can happen because of a vacuum extraction
  • Newborn jaundice- yellowing of baby’s skin and eyes that occurs when babies have a high level of bilirubin
  • Shoulder dystocia- one or both of a baby’s shoulders get stuck in the mother’s pelvis during childbirth/labor
  • Spinal cord injury- can happen when doctors strain an infant’s neck by pulling, twisting, or using tools to remove the baby from the mother
  • Wrongful death- baby and/or mother die during childbirth due to the negligence of a medical professional
  • & more

Symptoms of Birth Injuries

If you think that your child has suffered from any of the above birth injuries but are not certain, there are particular physical and neurological symptoms to look for. These include:

  • Arching of neck and body
  • Deafness or blindness
  • Communication issues
  • Excessive sleepiness
  • Failure to meet development milestones (crawling, sitting, or standing)
  • Difficulties with feeding
  • Piercing/loud crying
  • Seizures
  • Swelling or soft spots on the head
  • Stiff muscles
  • Inability to move one’s side of the body 

The main cause of birth injury malpractice is the negligent medical errors made by medical professionals before, during, or after labor. Doctors, nurses, and any other healthcare professionals should know how to properly handle difficult or complicated childbirths. However, there are circumstances in which some healthcare professionals do not perform the expected standard of care, and their negligent errors lead to serious injury or, worse, death. Some of the actions that medical professionals can perform that may be considered birth injury medical malpractice include:

  • Failing to identify risk factors during pregnancy
  • Excessive pulling on the baby’s head/shoulders/arms
  • Failure to diagnose a maternal infection
  • Failure to order necessary tests before delivery
  • Failure to perform a C-section
  • Failure to recognize fetal distress/lack of oxygen
  • Improper use of forceps or vacuum delivery
  • Incorrectly diagnosing a life-threatening birth trauma as something not as serious
  • Prescribing the mother medications that can harm the unborn baby
  • Lack of aftercare for the mother or child

A mother can also suffer from life-long injuries sustained during childbirth from medical negligence. The health issues a mother can face as a result of birth injury malpractice can include blood clots, diabetes, hemorrhage, pre-eclampsia, infections, uterine rupture, anesthesia complications, and severe vaginal tears.

What Action Can I Take After a Birth Injury Occurs?

The injuries detailed above may not always be the result of a medical professional’s negligence, referring to a doctor or nurse. When you are deciding whether or not there is any legal liability, there is a four-step process you can follow under medical malpractice law.

The primary step to take after a birth injury is determining what the proper medical standard of care ought to have been versus the care you or your baby received that caused injuries. For instance, if your acting doctor was an obstetrician, the court would compare your obstetrician's actions to those of a similarly certified obstetrician in a setting that was similar to yours. Usually, the injured individual's attorney will count on a qualified medical professional to testify on your behalf regarding what the appropriate standard of care should have been. The court will likewise take into consideration the medical information that was available to the doctor at the time of the injury. Courts typically do not use hindsight to hold a medical professional liable for something that they could not have sensibly known at the time of the injury.

After the appropriate standard of care is determined, the doctor's actions will be measured against that standard. This is when a medical professional will take a more extensive look at what was done during the labor and childbirth procedure and what would have been done by a similarly-skilled healthcare expert, based upon all of the information that was offered at that time.

Next, the court will decide whether they think the healthcare specialist's discrepancy from the standard of care was the legal reason for harm to the mother or her child. An example of this would be if the acting physician did not recognize problems throughout vaginal childbirth and ordered a c-section. But the question is, did the medical professional's error lead to the baby being stillborn? If further examination proves that the child would have passed despite the doctor's error, then there would be no legal causation, indicating no medical malpractice liability.

The last and final step will involve recognizing and identifying the injuries the mother and/or baby suffered and any other losses that arose from the medical professional's neglect. This will then determine the compensation granted to the injured person. Birth injury compensation can help cover assistive devices, psychological damages, loss of revenue, medications, special education programs, therapy, medical costs, transportation modifications, and more.

If you are contemplating taking legal action due to a birth injury caused by a medical professional’s negligence, contact an experienced medical malpractice attorney today.

Who Can I Take Action Against?

A birth injury medical malpractice claim is not limited to the negligent actions of doctors but also nurses, healthcare facilities, pharmaceutical companies, anesthesiologists, and other providers that offer health care services.


Whether private or public, hospitals are an additional entity that you can take legal action against. When it comes to medical malpractice, hospitals can be held directly liable for their own negligence or held “vicariously” liable for the negligence of the individuals that they employ (vicarious liability refers to being held liable for the actions of another person).

When hiring their employees, hospitals must make any/all reasonable inquiries into an applicant’s background, including their training, education, and licensing. If a hospital does not inspect these inquiries regarding a medical professional they hire, it may be held liable under “corporate negligence” for the negligent supervision or retention if one of their employee’s negligent actions injuries a patient. A hospital may also be held liable for negligence if it does not investigate the credentials of an acting physician before allowing them privileges at the hospital (such as performing surgeries) or where they knew or should have known that the medical professional they hired was incapable of treating patients at that hospital.

Hospitals are also required to have an ample amount of nurses on duty at all times in order to maintain quality care to patients. If a hospital refrains from doing so, it can be held accountable for any injuries that a patient suffers due to the lack of nurses. Another area of liability can emerge when a hospital finds a private physician’s treatment plan to be short of the standard of care that should be given but fails to investigate the physician. 

Lastly, hospitals can be held liable for failing to safeguard a patient from harm, properly performing clinical tests, keeping updated medical records, and properly admitting and discharging patients. If a hospital does not do any of the things detailed above, it will more than likely be held responsible for medical negligence.

Vicarious Liability

When an individual that a medical facility employs medical negligence results in injuring a patient, the hospital itself can be held vicariously liable under the legal doctrine of "respondeat superior." This legal doctrine states that a company can be held liable for the negligent acts of its staff members if the employee was acting within the scope of their employment when the carelessness happened.

It's crucial to keep in mind that some healthcare providers are considered independent contractors, suggesting they are not hospital employees, and the doctrine of "respondeat superior" will not apply. This essentially indicates that if a doctor that is an independent contractor performs an irresponsible act while treating a patient in a hospital, that hospital cannot be responsible for that doctor's malpractice. However, the hospital can be held accountable for its own negligent acts, like granting privileges to an unlicensed or incompetent medical professional. There are also some instances where a hospital can be held vicariously or directly responsible for the actions of its independent contractors to operate an emergency clinic or other medical center.

Pharmaceutical Companies

In some birth injury cases, a pharmaceutical producer can be held lawfully liable when a drug causes a patient's injuries, however only when the producer failed to warn the correct personnel of the side effects or dangers of the drug.

When providing warning of potential negative side effects or risks, a pharmaceutical company's main duty is to doctors. Generally speaking, this means that a pharmaceutical producer will most likely not be held accountable for a patient's injuries as long as it holds up its duty of notifying the medical professional of the side effects and dangers related to the drug. The only responsibility a pharmaceutical company has is to ensure that the drugs it produces will be reasonably safe when it is used in the way it is intended. In order to do this, the manufacturer must do research for possible side effects and risks prior to the drug being put on the market. If the pharmaceutical company fails to do so and does not warn medical professionals of the drug's threats, the drug then becomes "unreasonably unsafe" under product liability law, and the producer may be held accountable for the failure to supply adequate warnings.

Keep in mind that the doctor who prescribes a patient this medicine is considered a "learned intermediary." This means that because of their substantial medical knowledge and presuming they were warned of the possible negative effects and threats from the pharmaceutical producer, they are in the best position to decide whether or not a specific drug or device is appropriate for a patient. Therefore, a medical professional has the main responsibility of warning a patient of those risks and negative side effects a medication or device has that they prescribe. 

If you are uncertain of who may be accountable for a birth injury that you or a loved one has gone through, contact a medical malpractice attorney today to get answers to your questions.

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