Birth Injury Malpractice

Pediatric · Aug 6, 2020

Seema Madhavan

Seema MadhavanCase Manager

Birth injuries are severe injuries to an infant that occur during pregnancy and/or childbirth, often leaving the otherwise healthy child with a permanent disability. Birth injury cases differ from birth defects in that birth defects predispose an infant to having a disability, but are not the result of malpractice.

Birth injury cases claim that the injury sustained by the infant was a direct result of the doctor’s negligent act or omission. 

Common Types of Infant Injury

  • Brachial Plexus Birth Palsy: Also known as Erb’s Palsy, this injury causes damage to the nerves when the infant’s shoulders or neck are stretched too far during the birth.

  • Caput Succedaneum: Newborn scalp swelling, usually caused by a difficult head-first delivery or a procedure involving vacuum extraction.

  • Birth Fractures: The most common types of birth fractures include collarbones and clavicles.

  • Subconjunctival Hemorrhage: Caused by different pressures on the baby’s body during delivery, subconjunctival hemorrhage involves ruptured blood vessels in a baby’s eye.

Brain Damage In Birth Injury Malpractice

Most commonly, infant brain damage is either caused by trauma to the baby’s brain and skull and/or a lack of oxygen flow to the brain near the time of birth. A common brain damage injury is Hypoxic-Ischemic Encephalopathy (HIE). HIE occurs when there is a lack of adequate oxygen flow to the baby’s brain.

The severity and length of oxygen deprivation affects whether hypoxic-ischemic encephalopathy occurs and how severe it is. Once HIE is suspected, imaging techniques like MRIs are performed to confirm a diagnosis. 

Another common type of infant brain damage is cerebral palsy (CP), which is a group of four disorders that impact a child’s motion, balance, and posture. CP occurs when there is a serious injury to the infant’s brain.

Doctors often struggle to identify the specific injury, especially since children often don’t exhibit concrete symptoms until months or even years after they’re born. Most parents notice that their children have difficulty speaking, crawling, walking and developing other motor skills.

Consequences of Birth Injury Brain Damage 

Certain signs may appear shortly after birth. Organ dysfunction, especially of the heart, lungs, kidneys, liver and blood, indicates possible HIE. Seizures in the first 24 hours of life can also indicate the possibility of hypoxic-ischemic encephalopathy.

Impairments caused by HIE can include epilepsy, developmental delay, motor impairment, neurodevelopmental delay, and cognitive impairment. Usually, the severity of impairment cannot be determined until a child is three to four years old.

The most common type of CP is spastic cerebral palsy, which affects the rigidity and stiffness of muscles and joints. Children with spastic CP struggle to control their movements, eat and speak. Many of these children walk with an abnormal gait, such as walking on their toes instead of on flat feet. Athetoid CP is less common but is known for causing movements out of the child’s control, such as slow writhing of the body and jerky movements of the arms, legs, hands and feet.

Children with ataxic cerebral palsy tend to have tremors that occur with voluntary movements. This leads to difficulty performing tasks requiring precise motor control, such as buttoning their clothes and writing, they’ll often walk with an unsteady gait with their feet far apart from one another. The condition is not typically diagnosed until a child is about 18 months old; early diagnosis is more likely to be inaccurate.

Mixed cerebral palsy, being the fourth type, presents itself as a combination of the other types. Children with mixed CP may have some hypertonic muscles, as people with spastic cerebral palsy do, and some hypotonic muscles, as people with athetoid cerebral palsy do.

What are the causes of birth-related injuries?

Surgery-related injuries

Cesarean Section Injury: Mothers and babies can sustain several kinds of injuries from C-sections, all of which fall under one of two categories: failure to perform a necessary cesarean section and failure to perform a necessary cesarean section on time. 

If unplanned, a C-section is necessary in cases where something goes wrong during active labor. This includes a stall in the progression of labor after several hours, a suspected uterine rupture, detachment of the placenta, signs of distress in the mother or baby, dangerous positioning of the umbilical cord, and other potential labor complications. 

If the C-section was not performed at the time it was necessary, it can lead to many of the birth injuries mentioned above. 

Medical negligence during pregnancy and birth

There are certain factors that occur during pregnancy or labor that should be addressed by a medical professional as soon as possible. If they are not addressed, they can lead to birth injuries. Some of these factors are:

  • Infants that have grown too large for their due date. If a child has reached 8 lbs.13 oz., they are considered too large. The medical term for this is macrosomia.

  • Prolonged labor

  • The mother’s uterus cannot handle vaginal birth (e.g., it is too small or incorrectly shaped)

  • Premature births (e.g., those that occur before week 37)

Birth injury statute of limitations

Statute of limitations is defined as a time period in which you can legally file your birth injury claim.

With birth injury lawsuits, there may be specific statutes of limitation, or they may be general medical malpractice statutes of limitation, depending on the state.

In some instances, the consequences of birth injuries may only be visible several years or more after the injury occurred. This is usually taken into account by lawyers when determining when the statute of limitation runs.


A birth injury lawsuit in the state of South Carolina, for example, must be filed within three years from the time of the injury or within three years from the time the injury was reasonably discovered. It is important to always speak with an attorney regarding statutes of limitation. For more information about statutes of limitations that may apply to your state or case, please contact an attorney here.


New York law has special rules known as “statutory tolls,” which extend the statute of limitations in cases where the plaintiff is an infant. Under the Civil Practice Law and Rules, infants are given an extension of the statute of limitations because in the eyes of the law they are unable to tend to their own legal affairs.

In personal injury lawsuits, including with respect to those brought against the government, statutes of limitations are “tolled” – a legal term for “paused” – until they reach the age of majority (18 years old) and then the statute begins to run. For example, if a child of 7 years old is injured in a car crash with another private citizen, he or she will have until their 21st birthday to sue for their injuries. In a medical malpractice action, the same child will have ten years within which to sue for their injuries.


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