Birth Injury Legal FAQs

What do I do if I suspect medical negligence caused my child’s birth injury?

The doctor or the hospital will not be forthcoming with the answers you seek. If you believe your baby’s disabilities were caused by medical malpractice, trust your gut and talk to a knowledgeable birth injury lawyer who has specific experience with birth injury cases. Your attorney will evaluate the medical records, with the help of medical experts, to determine if you have an actionable claim.

What qualifies as a birth injury?

A birth injury refers to any physical injury a newborn sustains before, during, or shortly after delivery. Many of these injuries happen naturally, but some may result from avoidable birth injury incidents, often due to medical malpractice.

A birth injury can be a result of anything from brain damage to nerve damage or even bone fractures and is typically caused by improper medical techniques, delayed responses, or lack of appropriate care during labor and delivery.

What is the difference between a birth defect and a birth injury?

When pursuing a possible birth injury claim, it’s important to know the difference between a birth defect vs. birth injury. While birth defects and birth injuries are both conditions that affect newborns, they have different causes.

A birth defect is generally a health condition or abnormality that develops while the baby is still in the womb, often due to genetic or environmental factors. A birth injury, on the other hand, is typically caused by birth trauma leading to a physical injury that occurs during labor and delivery. As such, many birth injuries are caused by medical malpractice, where improper techniques or delayed actions lead to preventable harm.

While birth defects may require specialized long-term treatment, birth injuries might heal over time, depending on the severity of the trauma.

Who can be held responsible for a birth injury?

In birth injury lawsuits, several medical professionals involved in the labor and delivery process may be held responsible if their actions contributed to the injury. This could include doctors, nurses, midwives, or any other professional health care provider whose negligence or improper care directly led to harm.

What are the most common types of birth injuries?

There are plenty of potential birth injuries that a baby may sustain due to improper monitoring, misdiagnoses or delayed diagnosis, or inadequate treatment. Some of the most common birth injuries we see at TLF include:

• Cerebral Palsy: Perhaps one of the most common birth injuries, cerebral palsy is a set of disorders impacting body movement, muscle tone, and posture, often resulting from damage to the developing brain during early stages.
• Hypoxic-Ischemic Encephalopathy (HIE): Brain damage resulting from a lack of oxygen and reduced blood flow to the brain around birth.
• Brachial Plexus Injuries: Damage to the network of nerves connecting the spine to the shoulder, arm, and hand, usually from excessive stretching or tearing during delivery. This includes shoulder dystocia, a highly common injury in newborns.
• Intracranial Hemorrhage: Bleeding within the brain, frequently due to a challenging delivery or the use of tools like forceps or vacuum extraction.
• Facial Nerve Damage: Pressure applied to the baby’s face during delivery can damage facial nerves, possibly resulting in temporary or permanent paralysis of facial muscles.
• Spinal Cord Damage: Injury to the spinal cord during birth can result in severe birth injuries, including different levels of paralysis depending on the extent of the damage.
• Fractures and Bone Breaks: Bones, particularly the collarbone (clavicle), can fracture during challenging deliveries.
• Perinatal Asphyxia: Oxygen deprivation before, during, or shortly after birth can lead to brain injury and developmental complications.
• Fetal Acidosis: A condition marked by an excess buildup of acid in the fetus’s blood and tissues, often from inadequate oxygenation.

What is a hypoxic-ischemic birth injury?

Hypoxia refers to insufficient oxygen, while ischemia means inadequate blood flow.

The baby’s brain relies entirely on the mother’s blood for oxygen, delivered through the umbilical cord. When this blood supply is disrupted or blocked, the baby’s brain can suffer severe damage in just a few minutes due to oxygen deprivation. This type of injury, known as a hypoxic-ischemic brain injury (HIE), is often the result of medical negligence during labor or delivery.

An experienced HIE brain injury lawyer like those at TLF can help families pursue justice when this preventable injury occurs, seeking compensation for medical costs, long-term care, and other damages caused by the injury.

What is shoulder dystocia?

Shoulder dystocia is a serious childbirth complication where the baby’s shoulder becomes lodged against the mother’s pelvic bone, leading to the child being stuck in the birth canal and preventing a smooth delivery. This can lead to significant nerve damage if excessive force or improper techniques are used to release the baby. To manage shoulder dystocia safely, doctors might consider performing a C-section if the risk is identified early, as it can help avoid the need for emergency maneuvers that carry higher risks of injury to both the baby and the mother.

Such nerve injuries, like Erb’s palsy, can cause long-term or permanent paralysis in the affected arm. Additionally, shoulder dystocia can harm the mother, potentially resulting in injuries such as a ruptured uterus. Our shoulder dystocia lawyers can help families seek justice and compensation when improper medical care leads to these severe injuries.

Is Erb’s palsy a disability?

Yes, Erb’s palsy is considered a disability as it impacts the movement and function of the affected arm due to nerve damage. This birth injury can limit a child’s ability to perform everyday tasks and may require long-term therapy or even surgery to improve mobility. In severe cases, Erb’s palsy may lead to permanent disability. If this condition resulted from medical negligence, families may be eligible to file a birth injury claim to seek compensation for the costs of ongoing care, therapy, and support.

What is an AGPAR score?

The APGAR score is a quick test performed on a newborn shortly after birth to evaluate the baby’s physical condition and responsiveness immediately following the birthing process. This assessment, conducted at one and five minutes after birth, examines five criteria: Appearance (skin color), Grimace response (reflexes), Pulse (heart rate), Activity (muscle tone), and Respiration (breathing effort).

Each category is scored from 0 to 2, with a maximum total score of 10. A higher APGAR score generally indicates a healthier newborn, while low AGPAR scores may signal the need for immediate medical attention to address any potential complications.

Can I file a birth injury lawsuit if the injury occurred during pregnancy?

Not all birth injuries occur during the labor and delivery process – some can occur during pregnancy. If an injury is linked to the healthcare provider’s negligence or improper care during the pregnancy, you may be eligible to file a birth injury lawsuit. Issues like inadequate monitoring of fetal distress, failure to diagnose conditions, or delayed treatment that affect the baby’s health during the labor and delivery process could all point to potential negligence by the medical team. A birth injury lawsuit can help hold responsible parties accountable when preventable injuries and serious harm arise due to mistakes or oversights by the healthcare provider.

How long do you have to sue for a birth injury?

The time limit for filing a birth injury claim for your child’s birth injury depends on the circumstances. The normal statute of limitations for medical malpractice is one year from the injury, but birth injuries are different because developmental delays may not be apparent or diagnosed until the child is older. As such, the statute of limitations for birth injuries in both Ohio and Kentucky is one year from the date the child turns 18 years old, which is when they reach the age of majority.

It is always best to seek legal counsel when you first suspect medical negligence, as malpractice becomes harder to prove with the passage of time.

Do I need a lawyer to file a birth injury claim?

Consulting an experienced birth injury attorney is extremely important if you’re considering filing a claim. Especially for serious birth injuries, which often involve complex medical details, the legal process can be very challenging to navigate alone.

A skilled Covington or Cincinnati birth injury attorney at TLF: The Medical Injury Law Firm can guide you through the process, helping you understand your legal options and build a strong case to seek compensation for the damages caused.

How much does it cost to hire a birth injury lawyer?

It typically costs you nothing upfront. At TLF, like most seasoned birth injury firms, does not charge for the initial consultation or the case evaluation. We take our birth injury and medical malpractice cases on a contingency fee basis, meaning you do not pay any attorney fees unless we recover compensation in your case.

How is medical malpractice proven in a birth injury case?

Proving medical malpractice in a birth injury case requires showing that the responsible doctor or other medical personnel involved did not meet the medical standard of care expected during pregnancy, labor, or delivery. Your birth injury lawyer will work to establish that the actions of the medical staff—or their failure to act—directly contributed to the injury. We call this proving the 4 D’s of Medical Negligence.

This often involves gathering medical records, expert testimony, and evidence demonstrating that the healthcare provider’s conduct deviated from accepted practices, leading to preventable harm. With this evidence, your attorney can build a case that seeks to hold the responsible doctor or healthcare provider accountable for the injury.

How long does it take to resolve a birth injury lawsuit?

The time it takes to resolve birth injury lawsuits can vary widely, often depending on the complexity of the case and the willingness of the involved parties to reach a settlement. Generally, however, a birth injury lawsuit can take anywhere from several months to a few years to fully resolve.

Once your legal team files the lawsuit, there is often an extensive investigation phase, where medical records and expert testimony are reviewed to build a strong case. Some cases may settle out of court, while others may go to trial, adding time to the process. Our attorneys at TLF will work diligently to ensure the lawsuit progresses efficiently, but the timeline ultimately depends on the specifics of the case.

What damages can be recovered in a birth injury lawsuit?

Caring for a child with physical disabilities or cognitive impairment can take a massive emotional and financial toll on families. As such, financial compensation for a birth injury should include all related economic damages, such as hospital bills, future medical expenses, assistive care for the child, home or vehicle adaptations, the parents’ lost wages, and loss of the child’s future earning capacity.

The lawsuit can also seek noneconomic damages for pain and suffering, mental anguish, and loss of enjoyment of life from the physical, social, and psychological impact of disfigurement or disability.

Is there a cap on the amount of compensation in birth injury cases?

In Ohio, non-economic damages are capped at $250,000 or three times the economic damages, up to a maximum of $350,000 per plaintiff or $500,000 per case, whichever is greater.  Kentucky has no caps on birth injury damages. Typically, the proceeds of a lawsuit are placed in a trust on behalf of the child.

Consulting a knowledgeable birth injury attorney can help families in Ohio or Kentucky understand how these caps may apply and work to secure the maximum compensation available for their child’s injury and ongoing care needs.