A Legal Guide for Birth Injury Victims

October 19, 2022
October 19, 2022
A Legal Guide for Birth Injury Victims

Every parent hopes that their baby will be born healthy and happy. However, it’s impossible to predict what can go wrong during delivery. A newborn brings joy and hopes to many families, but sometimes things can go wrong during or after labor. In the US, more than 5.8 of every 1,000 babies are born with a birth injury. Birth injuries can cause lifelong physical or mental disabilities and require extensive medical treatment.

One of the most tragic ordeal for any parent is to learn that their child has suffered from a birth injury. A birth injury may be a physical or mental injury or disability caused around the time of or during birth. Such an injury may be the unavoidable result of the natural pressures of labor and delivery. 

In the face of such circumstances, all one can do is be available for their child and try to make their life as better as possible. However, in some cases, birth injuries are caused solely due to the negligence of the doctors or staff. It may be during the pregnancy or delivery time, which could have been easily preventable.

Suppose your child has been the victim of a birth injury that you believe is attributable to your doctor or their team. In that case, you have the right to seek legal action to pay for treatment and other expenses. There are many reputable organizations, such as the Birth Injury Justice Center, which can help you in filing a claim. 

To assist you during this difficult time, we have developed this legal guide so that you can better understand the following process and prepare for it accordingly. The first step is to assess whether the injury falls suffered by your child gives rise to legal action.

What Birth Injuries give rise to a Claim?

Simply put, any birth injury that could have been prevented by diligence and proper care on the part of the doctors gives rise to a claim. The terms diligence and proper care are quite comprehensive. They include any act or omission which amounts to malpractice or negligence by a medical practitioner. For instance:

  1. Failing to diagnose a treatable issue during the pregnancy (e.g., Undiagnosed Severe Fetal Spinal Defect which may be treatable through Fetoscopic Spina Bifida Repair);
  2. Attempting to perform a natural birth despite associated risks (e.g., Trying to perform a vaginal birth while the fetus is in a Breach position, despite that the recommended route is a Caesarean section);
  3. Not carrying out appropriate post-natal care (e.g., Discharge given in case of Severe Infant Jaundice, which is treatable with Phototherapy);
  4. Not providing correct advice to the mother (e.g., No instruction given to expecting mothers at risk of Gestational Diabetes when a strict diet regime and medication are recommended);
  5. Neglecting to monitor the fetus in high-risk pregnancies. (eg. Not ordering regular ultrasounds for fetuses with mild to moderate Ventriculomegaly requires strict monitoring to ensure the level does not reach severe/high).

There are many other factors and instances of medical malpractice and negligence in addition to the ones listed above. In reality, the only requirement is that the birth injury must directly have been caused by the lack on the part of the medical practitioner(s) to give rise to a claim. You have a valid claim as long as you are confident that your child’s condition could have been prevented by the doctors/staff.

What can I claim in a Birth Injury Lawsuit?

The components and value of a birth injury claim are subjective and depend on the particulars of a case. Generally, the scope of the claim depends on whether or not the birth injury is treatable.

  1. Treatable Birth Injuries

Some birth injuries are minor and can be treated completely, or at least to an extent where the child can enjoy everyday life without severe, long-term disabilities. Suppose your child suffers from such an injury. In that case, your claim, first and foremost, includes all medical expenses associated with the treatment. It includes hospital expenses, fees for a nurse/caregiver, the cost of medical equipment/devices required, and the cost of medicines. Additionally, for the time it takes for the child to recover, if one of the parents has to give up their work to care for the child, you may also have a claim for lost wages. Furthermore, you may also claim damages for the mental anguish and emotional distress you and your family suffered due to this entire ordeal. 

  1. Non-treatable Birth Injuries

Sadly, some injuries leave children with life-long disabilities, such as Cerebral Palsy. For non-treatable birth injuries, a claim can include all that can be claimed in a treatable injury. Due to the severity of the injury and its consequences, you may also have the following in your claim:

  1. Lifelong medical expenses associated with the injury;
  2. Costs associated with special education and training for the child;
  3. Potential future loss of income for the child; and
  4. Damages for the child’s mental and emotional suffering on account of inability to lead an everyday life.

Who Does a Birth Injury Lawsuit lie against?

Any medical professionals and hospital staff who contributed in any manner to the birth injury. These include:

  1. Doctors (doctor(s) performing the delivery, doctor(s) in consultation, pediatrician, etc.)
  2. Medical staff (nurses, residents, assistants, etc.)
  3. Midwives
  4. Hospitals, Clinics, and Birthing Centers (where the incident occurred)

What do I need to file a Birth Injury Lawsuit?

Specifically, the documentation and information required on your part for filing the lawsuit will depend on your specific case. However, generally, the most important thing you will need is the complete medical record of the pregnancy, delivery, and diagnosis caused by the birth injury. You must keep all medical reports, doctor’s notes, test results, and other medical documents to take to your attorney. Additionally, ensure you retain copies of all forms and consent sheets on which your signature is taken before or after the delivery.

Finding an Attorney

Birth injury is a specialized field of law, and experts usually deal with such cases. Due to the sensitive and technical nature of the claim, you must choose someone familiar with the legalities of birth injuries. Most well-ranked law firms have dedicated medical malpractice litigators. If you have decided to take formal legal action, research good law firms in your city and set up meetings with a few lawyers. The counsel representing you must be on the same page as you, so make sure you move forward with a counsel you feel satisfied with.

Final Words

As a parent or guardian of a birth injury victim, the road ahead is far from easy. Legal action or not, the emotional trauma and mental suffering that a family experience from such an incident is one of the hardest things to soldier through. However, remember you have an innocent soul to fight for, look after, and love. By taking legal action, you can put yourself in a better financial position to meet your child’s needs and also play your part in ensuring nobody else goes through what you did. Find your strength and find your way through this challenging time to give your child the best chance at life.


  • Chuck Parsons

    Chuck is Score LA’s Executive Director of Events and Marketing. He aims to help business owners and would-be entrepreneurs in Los Angeles improve their business practices.

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