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The birth of a child is supposed to be an exciting start to a new chapter for families. This moment can quickly turn into devastation if a birth injury occurs – leaving them with emotional pain and financial burdens.
Data shows us that roughly 7 out of 100 babies are affected by birth injuries.
These injuries can happen for many different reasons. The most common one is medical negligence – or medical malpractice. Proving liability in these cases can be a long, hard-fought battle to hold the responsible party accountable and secure the compensation you deserve.
At Mahony Law, we’ve helped many families fight for justice after a birth injury. In this post, we will discuss the steps parents can take to hold liable parties accountable and strengthen their claim for the maximum settlement.
A birth injury occurs when a baby is harmed during labor or delivery, typically as a result of physical trauma, oxygen deprivation, or other medical errors. Birth injuries can vary widely in severity, ranging from temporary conditions that heal quickly to permanent disabilities requiring lifelong care.
Some birth injuries are not preventable. These would include (but are not limited to) pre-mature birth complications, umbilical cord issues, prolonged labor, and genetic conditions.
Other injuries may be caused by medical malpractice from the provider. These can affect different parts of a baby’s body, including the brain, nerves, and bones. Some of the most severe examples we see include:
This condition results from brain damage – either during or shortly after birth. This can affect movement, muscle tone, and coordination.
Symptoms of cerebral palsy can range from mild motor delays to severe physical disabilities, depending on the extent of the brain damage. In more severe cases, cerebral palsy may impact speech, vision, or intellectual development, requiring ongoing therapy and support.
Erb’s palsy is a nerve injury caused by excessive force during delivery, leading to weakness or paralysis in the baby’s arms.
This injury typically occurs when the baby’s shoulder is stretched unnaturally during delivery, damaging the brachial plexus nerves. While some cases improve with physical therapy, more severe injuries may require surgery or result in permanent loss of function.
Also known as HIE (hypoxic-ischemic encephalopathy), this injury occurs when a baby’s brain doesn’t get enough oxygen, potentially leading to severe developmental delays or cognitive impairments.
HIE can result from complications including umbilical cord prolapse, prolonged labor, or failure to perform a timely C-section. If not addressed immediately, oxygen deprivation may lead to issues with motor skills, memory, and other critical brain functions.
To prove medical negligence in a birth injury, you must show that a healthcare provider failed to act as a competent professional would under similar circumstances. This involves a legal process that demonstrates that their actions directly caused harm to your baby.
Other injuries can be caused by medical negligence, and families deserve justice in these unfortunate scenarios. Now, let’s discuss the major steps to hold medical providers responsible and file a birth injury claim.
When you (and your family) step into a hospital, the medical professionals owe you a “duty of care”.
Duty of care refers to the legal and ethical obligation of healthcare providers to deliver competent, safe, and appropriate care to patients. This includes doctors, nurses, and other hospital staff.
To establish the duty of care in a birth injury case (involving medical negligence), you must prove that a formal relationship existed between you and the healthcare provider. This creates an obligation for the provider to act within accepted medical standards. The process to do this involves:
This step is about explaining the responsibilities of the medical professional – and what a competent provider would have done in the same circumstance.
Once the duty of care has been established, the next step is proving that they failed to meet the duty of care. The breach of duty involves the provider’s actions (or inactions) directly contributing to the birth injury.
Examples of breaches in birth injury cases include:
This step involves gathering all medical records related to the birth, fetal monitoring data, and typically, testimonies from nurses or other professionals present during the delivery.
This step dives deeper into the details of the birth injury.
Determining the exact causation involves proving a direct link between a healthcare provider’s negligence and the injury. In other words, you must show that the injury would not have occurred if the provider had acted within accepted medical standards.
For example, failure to perform a timely C-section despite signs of fetal distress can lead to preventable conditions like brain damage. Additionally, you (with an attorney) will need to rule out other potential causes, such as genetic conditions or unavoidable complications.
Expert testimony is usually required to explain how the provider’s actions directly caused harm. Evidence like fetal monitoring records, delayed interventions, or post-birth evaluations can strengthen this connection to build your case.
Calculating damages in a birth injury case tends to be more complex than many victims assume. This is why it’s so important to work with an experienced birth injury attorney. They are trained to identify every financial loss you incur – both in the present and future.
This process involves assessing the financial, physical, and emotional impact of the injury on the child and family. Damages in birth injury cases are generally grouped in to three categories: economic, non–economic, and punitive.
These types of damages are relatively straightforward, involving anything with an official bill, invoice, or estimate. In a birth injury, economic damages typically include:
When you work with a birth injury attorney, you will need to help them gather all these records to be calculated into your claim.
Non-economic damages are where birth injury cases tend to get complicated. These damages do not have bills, invoices, or estimates attached to them. They commonly include:
Calculating these types of damages can be difficult. An experienced personal injury attorney will help you quantify these struggles and assign a monetary value.
Punitive damages are not necessary in every case. Mistakes happen in hospitals and doctors generally have good intentions in their work. However, if the provider’s actions were reckless, punitive damages may be necessary.
For example, if the doctor was intoxicated during the birthing process and caused an error that led to a birth injury – the family may decide to pursue punitive damages. These damages are intended to punish the liable party and dissuade reckless actions like this in the future.
Evidence in birth injury cases is very extensive. When you hire a birth injury attorney, they will do a lot of the heavy lifting to gather the more complex evidence, which may involve witness accounts, fetal monitoring data, hospital policies, etc.
As a victim, there are certain pieces of evidence you can collect – and provide to your attorney to help build the case. This includes (but is not limited to):
These pieces of evidence form the foundation of your case.
This step can be done at any point after the birth injury occurs. We recommend speaking with a local personal injury attorney (with experience in birth injuries) as soon as possible.
These types of injuries can get extremely complicated – as they involve dealing with medical facilities, experts, insurance companies, and more. When you work with a lawyer, they will manage the following:
Your attorney will review all the details of your case to determine whether medical negligence caused your child’s injury. This involves analyzing medical records, timelines, and other evidence to assess the strength of your claim.
A birth injury lawyer will assist you in collecting all the evidence you need to build a case. This includes critical evidence such as medical records, expert opinions, and witness statements. Birth injury law firms will make sure no evidence is overlooked or improperly handled, so you have a strong birth injury lawsuit to receive compensation.
Birth injury attorneys communicate with medical experts to review your case and provide testimony about the standard of care and how it was breached. Experts can help establish causation – which helps to quantify the extent of damages.
An attorney helps identify all damages – economic, non-economic, and whether punitive damages are worth pursuing. They work diligently to make sure you don’t leave any compensation on the table to cover your current and long-term needs.
This is the most complicated aspect of all personal injury cases. Insurance companies are obligated to maximize their bottom line – which may involve offering you a settlement for less than you deserve. A professional attorney handles all communications with insurance companies to secure a fair settlement – so you can focus on tending to your baby.
A birth injury attorney is responsible for preparing and filing all necessary documents to initiate your case. This involves following all the necessary procedures and meeting deadlines to keep your claim valid throughout the entire legal process.
Most birth injury cases are settled out of court. But if the medical provider/insurance company does not offer a fair settlement, your attorney will take the case to trial. They will manage the entire court process – which includes presenting evidence, calling witnesses, and advocating aggressively to prove negligence and secure compensation.
Each state has a statute of limitations, which is the deadline for filing your case. In Wisconsin, parents have three years from the date of the injury (or when they became aware of it) to file a claim. We recommend starting the process immediately after you notice something is wrong.
Waiting too long can lead to lost evidence and missed opportunities to win a rightful settlement.
Proving medical negligence in birth injury cases – and filing a claim – is a complex task that requires strong evidence and legal expertise.
Families need to understand they are not alone.
A birth injury lawyer can provide the support and guidance needed to secure the compensation your family deserves. Our firm operates on a contingency fee agreement, meaning you pay us nothing until we win the case. Get in touch with a birth injury attorney by sending us a message online or call 262-331-3553 to schedule a FREE consultation.
Abby is the founder of Mahony Law and devotes her time to representing people who have been seriously hurt due to the negligence of others. Abby has handled injury cases of all types, including birth injury, wrongful death, automobile accidents, motorcycle accidents, pedestrian accidents, and truck accidents.
