Birth Injuries – An Overview

NIC UnitWhen having a child, the last thing parents want or need to worry about is the possibility of their baby being harmed during the delivery. While most births go smoothly, some have complications. It is estimated that five out of every 1000 children born in the US will suffer some type of birth injury. Birth injuries can range from minor, like bruising, to a life-altering diagnosis of cerebral palsy. If your child was injured at birth, contact an attorney to learn more about your legal options. A lawyer experienced in birth injury litigation can help you understand your rights.

Types of Birth Injuries

Birth injuries vary in severity and type. While many will correct themselves within the first months to year after delivery, not all of them do. In serious cases, the baby can suffer permanent, life-long injury. Many birth injuries result from the delivery itself as the baby makes its way down the birth canal. But some birth injuries occur when the treating physician fails to adequately assess or respond to conditions or complications during a woman’s pregnancy or delivery.

Some types of birth injuries include:

  • Forcep injuries – lacerations, bruising
  • Subconjunctival hemorrhage – burst blood vessels in the baby’s eye that normally clear up
  • Caput succedaneum – bruising or swelling of the baby’s scalp
  • Cephalohematoma – collection of blood under the baby’s periosteum, a tissue that covers the bones in the head
  • Facial paralysis – caused by excessive pressure on the face during delivery
  • Fractures – of the collarbone, limbs or head
  • Erb’s palsy – stretching or tearing of the nerves that control movement in the arms, hands and fingers
  • Cerebral palsy – damage to the areas of the brain that control muscle function and movement. Can be caused by a lack of oxygen during delivery.

Birth injuries are different from birth defects. Birth injuries occur during difficult deliveries in which something goes wrong – whether the child is in a breech position, is too large to move through the birth canal or suffers some other distress. Birth defects are caused by some factor before or during pregnancy, such as a genetic disorder, the mother’s use of illegal drugs, alcohol or tobacco, or by some prescription medications.

Responsible Parties

In a birth injury case, several parties may share liability for the injury to your child. The doctor or team of doctors who delivered the child may be liable for failing to follow the standard of care during your delivery. The hospital, nurses and other care providers, such as interns, residents, techs and nursing aids, also may be named parties for their actions. If the doctor is part of a private practice, the practice also may be named in the suit in certain situations. If a medication prescribed by your doctor and correctly taken by you led to a birth injury or birth defect, the manufacturer of the medication may be named in a products liability suit. Your attorney will determine which parties may be subject to liability based upon the facts and laws governing your situation.

Proving a Birth Injury Case

In order to prevail in a birth injury case, the plaintiff has the burden to prove:

  • The appropriate standard of care (the type of care and skill provided by the average doctor in the same or similar circumstances)
  • The doctor failed to adhere to the established standard of care
  • The child suffered a birth injury
  • But for the doctor’s failure to adhere to the standard of care, the child would not have been injured

The plaintiff must show that it is more likely than not that the birth injury occurred because of the doctor’s acts or omissions during the birth of the child. Failure on the part of the plaintiff to prove any one of these elements will result in the plaintiff losing his or her case.

Defenses to a Birth Injury Lawsuit

There are three common defenses used by physicians who are facing a medical malpractice suit for a birth injury:

No Doctor-Patient Relationship In order to maintain a malpractice suit, the doctor and patient had to have an established doctor-patient relationship. If the doctor did not provide treatment or care to the patient prior to an emergency delivery or C-section, it may be difficult for the plaintiff to prove a doctor-patient relationship existed. Some states have “Good Samaritan Acts” that immunize doctors from liability for helping people in emergency situations.

No Deviation from the Standard of Care One of the elements the plaintiff must prove to prevail on a birth injury claim is that the doctor deviated from the accepted standard of care. However, there may be more than one accepted standard of care. When there is more than one acceptable practice, the choice of the appropriate medical approach is left to the doctor’s good faith judgment. In such a case, if the doctor chooses a different standard of care that was reasonable under the circumstances and an error occurs, that error may not rise to the level of negligence.

The Doctor’s Negligence Did Not Cause the Injury Lastly, if the plaintiff can establish the standard of care and prove the doctor failed to adhere to that standard, the doctor may claim his or her negligence did not cause the child’s injury. For example, the injury could have resulted from the independent actions of a nurse, a genetic disorder or an injury to the mother while pregnant.


The child, mother and father may be entitled to damages stemming from a birth injury case. Some of the types of damages these parties may receive include:

  • Pain and suffering
  • Permanent physical disability
  • Lost future wages of the child
  • Emotional distress
  • Loss of companionship

The specific types of damages you may be entitled to will depend on the facts of your case and applicable state or federal law. An attorney experienced in birth injury cases can discuss your options for recovery in greater detail.


Dealing with a birth injury to a child is never easy and always emotional. While not all birth injuries are legally actionable, yours may be. Contact a personal injury attorney in your area today. He or she can evaluate your claim and help you determine the best course of action to take for your unique circumstances.

Birth Injury FAQs

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