- That the doctor had a legal duty to properly care for mom and baby.
- That the doctor failed to meet the standard of care before, during, or immediately after birth.
- That this failure resulted in injury to the infant.
- That damages from this injury can be assessed by the legal system.
The day of a child’s birth should be a joyous, happy occasion. When an injury clouds that joy, it is important that parents know their rights, and can exercise them on behalf of their child. Below, we’ve provided educational materials on common birth injuries, their impact, and how you can seek justice for your family.
Birth Defect vs. Birth Injury
A birth defect occurs while the baby is in the womb. The causes of birth defects could be genetic, the result of abnormal development, or caused by a maternal illness. Additionally, chemical exposure such as exposure to medications could cause birth defects as well. While congenital defects may be unavoidable, defects caused by chemical exposure or an illness in mom that was improperly treated may be the responsibility of the attending physician.
A birth injury occurs just before, during, or after the birth process. A birth injury refers to an injury that could have been prevented with proper care or technique. Injuries that result from a traumatic birth, mishandling, misdiagnosis or physician negligence can be termed “birth injuries.”
Types of Birth Injuries
Cerebral palsy results from a brain malformation or defect. It is the #1 childhood motor function disorder, affecting about 1 in 300 children worldwide. Cerebral palsy is highly varied: it can be mild or severe, have a minimal physical impact or total body involvement, and can sometimes come with mental impairment.
Upwards of 85% of cerebral palsy cases are caused by congenital defects, which are unavoidable. However, some children may have cerebral palsy as the result of a birth injury. Perinatal asphyxia causes about 10% of cerebral palsy and occurs when a severe lack of oxygen to the brain causes a permanent defect. A traumatic birth can also cause a physical defect to the brain, which can result in permanent damage.
Another cause of cerebral palsy is an infant or pediatric stroke. In rare cases, a fetus may also have a stroke before birth (in utero). While the stroke itself may not have been caused by a physician mistake, failure to diagnose the stroke or treat it in a timely manner may have a severe impact on the child.
Because of its wide range of causes and results, the cause of an individual’s palsy is difficult to determine. Diagnosis, however, is usually simple, as the child will miss infant milestones, or present with seizures or other visible deficits.
Brachial Plexus Injury
The brachial plexus is the point where the nerves controlling the arm, wrist, and fingers branch out from the spinal cord, creating a “highway system” visual. When a baby’s neck is strained or pulled away from the shoulder, the motion can stretch or shock this bundle of nerves, resulting in paralysis or weakness of the arm. Depending on which nerves are affected, it can lead to one of two types of injuries:
- Erb’s Palsy – The brachial plexus injury affects the upper arm. Erb’s Palsy occurs in approximately 1 out of every 1,000 births. Luckily, 90-95% of Erb’s Palsy cases will resolve mostly or completely. The chances of recovery are greatest with physical therapy.
- Klumpke’s Palsy – The brachial plexus injury affects the lower arm. Klumpke’s Palsy is much rarer than Erb’s Palsy, and unfortunately, more difficult to heal. Only 60% of Klumpke’s Palsy cases see a total recovery.
Brachial plexus injuries can be caused by extended labor, large infant size, or a breech delivery. However, the strain on the brachial plexus is sometimes due to excessive force or improper handling by a physician during birth.
Perinatal asphyxia refers to a lack of oxygen to the baby during the perinatal period, which lasts about 2-4 weeks before and then after birth. The lack of oxygen can range from mild to severe; severe cases can lead to Hypoxic-Ischemic Encephalopathy (HIE), which is a serious and sometimes deadly condition. Perinatal asphyxia is the third leading cause of newborn death, resulting in 23% of neonatal mortalities.
Perinatal asphyxia is the third leading cause of newborn death.
A lack of oxygen to the baby can have one of many causes:
- High blood pressure in mom during delivery
- An extended or difficult delivery
- Severe infant anemia
- Baby’s airway is blocked
- The placenta detaches from the wall of the uterus
- Umbilical cord issues (like a cord wrapped around baby’s neck)
If mom has risk factors for perinatal asphyxia, a cesarean section procedure may be recommended to avoid injury to the baby. During labor, doctors should monitor both mom and baby for blood pressure and heart rate. If the baby’s heart rate goes up, this is a good indicator of fetal distress, which may come from a lack of oxygen.
Many babies are able to fully recover from perinatal asphyxia. However, if the baby is cut off from oxygen for too long, there can be permanent, life-long effects, including mental and physical impairments.
There are several types of infant Hematomas. The most common are:
- Cephalhematoma; more likely when forceps are used during delivery
- Subgaleal hematoma; 90% of subgaleal hematomas result from a vacuum delivery
- Caput succedaneum; usually caused by compression against the maternal pelvis during prolonged labor
A hematoma occurs when blood collects in between the scalp and the skull. The different hematoma types refer to the location of the bleed, be it the area of the skull, or the layer of the dura (musculature) that contains the bleed. Some hematomas, like a cephalhematoma or a caput succedaneum, resolve either on their own or with minimal intervention. Physicians should monitor for continued bleeding, calcification or any physical skull deformities.
Subgaleal hematomas usually develop 12-72 hours after birth. In severe cases, the swelling can be significant and has the potential for 20-40% blood loss for the infant. The baby may require surgical evacuation to relieve pressure or blood transfusions to compensate for the bleeding.
Spinal Cord Injuries
Spinal cord injuries and resulting deficits vary greatly depending on the severity of the injury. A severe spinal cord injury may cause seizure disorders or partial or significant bodily paralysis. While some perinatal spinal cord injuries are unavoidable, many are caused by obstetric accidents. These include:
- Traction on the baby’s trunk during breech delivery
- Stress caused by rotating the infant during birth
- Stress to the cord caused by a brachial plexus injury or shoulder dystocia
- Hyperextension of the infant’s head and neck
Spinal cord injuries are largely preventable with proper care during birth or opting for a cesarean section in a high-risk situation.
During a vaginal birth, there are a few different ways the clavicle can be broken. First is from compression against the maternal pelvis; this usually occurs when the baby is too large for the mother’s birth canal. This is called cephalopelvic disproportion (CPD). CPD can usually be determined before birth, and a cesarean section is usually recommended.
A fractured clavicle may also be the result of a breech birth or other abnormal positioning of the infant during labor. In these cases, a physician might try to reposition the baby, sometimes manually or with forceps. In the process of repositioning, the clavicle can be broken, especially if excess force or incorrect technique is used.
While clavicle fractures usually heal with minimal medical intervention, complications can arise. The most common complication of an infant clavicle fracture is a brachial plexus injury. One in 11 newborns who break their clavicle during birth will have damage to their brachial plexus. Even with no complications, the pain of this fracture may be significant for the baby.
Wrongful Death Due to Birth Injury
The death of a child is devastating. No parent should lose their baby, especially if that loss was preventable. If your child passed away due to an obstetrical accident, a missed diagnosis or another medical mistake, you may be eligible to file a “wrongful death” suit. We acknowledge that these suits and compensation from them will never replace what you’ve lost. However, a verdict can force a doctor to take responsibility for his or her actions, a hospital to take further precautions to protect future parents, and lift any financial burden that was put on you and your family during this difficult time.
Birth Injury Lawsuit Q&A
Many people are hesitant to file a lawsuit when their infant is injured during childbirth. They may just want to move on and try to provide the best care for their child, or they may wonder whether such a lawsuit is an available option for them. Because of this, we’ve put together some responses to the most common questions about birth injury lawsuits.
Why File a Lawsuit?
Even if your child heals from their birth injury, it is important for physicians and medical institutes to take responsibility for the mistake. Filing a lawsuit can help protect other families in the future, and in some cases can alleviate blame that parents may have placed on themselves– especially if the cause of the injury was difficult to diagnose. Additionally, you may be eligible for compensation if your child’s injury resulted in increased medical bills, or will have a significant life and financial impact on your family.
Who to Sue: Doctor or Hospital?
In most cases, you will sue the doctor directly. Many doctors in hospitals actually act as independent contractors, so the hospital is not liable for their actions. However, the hospital may be responsible if:
- The doctor is an employee of the hospital OR
- The physician acted with incompetence that should have been obvious to the hospital.
How do I Prove Malpractice?
To successfully sue a doctor for a birth injury, the court will generally need 4 aspects of a case to be proven. These are:
What is a Life Care Plan?Before you file your suit, your lawyer will likely have you meet with a life care planner and an economist. These experts have seen hundreds of cases of birth injuries and can help determine the compensation you should receive from a jury. By laying out probable future surgeries, medical care, and increased care costs you may experience because of your child’s condition, they are able to create an estimate of the financial burden of the birth injury.How is Compensation Determined?In addition to the Life Care Plan you present in court, compensation is also based on past medical bills, starting from the injury and moving forward. These financial burdens make up your economic damages. Noneconomic damages like pain and suffering or a mental or physical impairment to your child will ultimately be valued by the jury’s collective experience. However, your lawyer will have previous experience with similar cases, and will likely provide you with a good estimate of what compensation to expect.