Birth Injury Malpractice: Proving Your Case and Protecting Eligibility for Compensation

Get Help Now

Birth injuries occur when there is a complication during a mother's labor and delivery. These injuries can leave a baby with permanent disabilities, leading parents to seek compensation for their child's medical needs via a malpractice claimBirth injury medical malpractice claim

Identifying a Birth Injury

It's not always easy to distinguish between a birth injury and a birth defect. For example, a baby can be born with cerebral palsy if he doesn't get enough oxygen during delivery. However, cerebral palsy can also be caused by unavoidable brain malformations during pregnancy.

Pursuing a birth injury malpractice claim requires careful examination of your medical records, as well as expert testimony from specialists in your child's particular condition.

Examples of actions that could potentially cause a birth injury include:

  • Incorrect use of devices such as forceps and vacuum
  • Improper monitoring of the baby's oxygen intake during labor and delivery
  • Failure to perform a C-section when needed
  • Incorrect assessment of the baby's health in the womb
  • Ignoring established signs of fetal distress

Some birth injuries can be seen immediately. Signs of immediate birth injury include:

  • Vomiting
  • Inability to suck
  • Difficulty breathing
  • Inability to cry
  • Seizures
  • Spastic motions
  • Arched back while crying
  • Bluish in color

Other birth injuries might not be apparent until weeks or months later. Signs of a birth injury that can appear later on include:

  • Not gaining weight
  • Difficulty eating
  • Trouble with hearing or vision
  • Trouble sitting up, rolling over, or crawling
  • Poor muscle tone
  • Stiff muscles
  • Lack of response to caregivers
  • Excessive high-pitched crying

Proving Medical Malpractice

Not all birth injuries qualify as medical malpractice. A successful malpractice claim must prove four elements:

  • Duty. Duty means establishing who was responsible for providing medical care to you and your baby during labor and delivery.  
  • Breach of Duty. Conduct doesn't qualify as malpractice unless you can establish that it goes against the standard of care for your baby's condition. You must prove that another doctor would not have taken the same course of action that resulted in your child’s birth injury.
  • Damages. A malpractice claim must involve verifiable harm to your baby, which can be proven by demonstrating how your child is lacking in meeting common developmental benchmarks or providing the results of various diagnostic tests. Even if you can establish that the doctor made a mistake, it's not malpractice unless your baby was harmed by his actions.
  • Causation. To win your case, you must establish that your baby's injury was directly caused by the doctor's conduct during your labor and delivery and not a fetal abnormality in the womb.

To build your case, your attorney will take depositions from the doctor who delivered your baby, as well as from nurses, anesthesiologists, and others who were present during your labor. The hospital will be issued subpoenas requiring them to turn over the delivering doctor's employment records, any past complaints, and any other background documents related to the case.

Eligibility for Compensation

Parents who believe their child's condition is the result of a birth injury must file the malpractice claim on behalf of their child. Here are examples of some of the costs you might be able to include in your claim:

  • Cost of medical care your baby has already received
  • Ongoing rehabilitation or therapy costs
  • Cost of modifications to your home due to your child's special needs
  • Cost of hiring a home nurse or other special caregivers for your child
  • Loss of future earning capacity, if your child has been left disabled to the extent that he or she will not be able to live independently as an adult
  • Pain and suffering

Depending on whether the doctor who delivered your baby was working as an independent contractor, you may be able to seek damages from both the doctor and the hospital where you delivered. Hospitals can be held liable if they knew, or should have known, a doctor was likely to make mistakes during the delivery process.

To learn more about how to pursue a birth injury malpractice case, please call Neblett, Beard & Arsenault at 800.256.1050 to schedule a free, no-obligation case review. We can also be contact online. Please fill out our convenient contact form and we will be in contact shortly.


Richard J. Arsenault
Connect with me
Recognized by several legal associations, Richard Arsenault has vast experience in complex litigation cases.