Birth Injury Overview

Most often than not, the birth of the child is such a triumphant feeling for the mother and the entire family if the birth has been done smoothly. However, some complications and complexities can arise during both pregnancy and delivery, potentially resulting in injury to the baby. When situations like this one happen, it is essential to make sure that the legal rights of both the mother and the baby are protected.

The facts of the cases that involve birth injuries to a baby can indeed vary, but most situations either of these scenarios: the doctor has failed to evaluate or respond to conditions, or injuries due to prenatal care (including prescription drugs).

For example, in the initial scenario, a doctor may fail to realize the pregnancy disorders like hypertension; wrong use of medical devices such as vacuum or forceps; inability to conduct a necessary caesarian section; or incorrect evaluation of a baby’s general health in the womb. A lawsuit that arises from these kinds of situations will generally consist a malpractice in a medicinal claim against medical practitioners and physicians, and other related cases a claim against the hospital where the treatment or delivery took place.

To give an example for the next scenario, a pregnant woman may have utilized a drug that generally requires prescription under the supervision and guidance of a pharmacist or a doctor. In such kind of a situation where the drug creates injury, you may also have a claim against the manufacturer that created the drug and the pharmacist who aided you with the intake of the prescription drug.

Birth Injury Or Birth Defect?

Initially, it is really difficult to make sure if a certain complexity that is apparent would be birth defect or birth injury. For example, when a child born is seen to be suffering with cerebral palsy, it may be the necessary consequence of the fact that it is not given enough oxygen during labor. It could initially be labeled as birth injury but it can also be called a birth defect. To help differentiate between the two, an examination of each will be helpful.

Birth Injuries

Due to the difficulties suffered during the delivery or labor process, these could result into a birth injury. As estimated, for every 1000 babies born in the U.S., five babies are expected to be injured during birth. A birth injury can also occur because of the use by an obstetrician of an improper medical technique during delivery, or through improper use of a medical device such as forceps or a vacuum. Resulting harm to the newly born baby can range from a lack of oxygen to severe head injuries.

However, it should also be noted that not all birth injuries can be the subject of a legal claim. There may be complications that occur during delivery that, in spite of the utilization by the physician of the standard degree of care, would inevitably result into an injury.

Birth Defects

While the injuries at birth are typically brought by the acts that have gone wrong when the mother is at delivery or labor, when the defects have been present even before delivery, the proper term to be used is “birth defects.” These can be caused by events that happened even before or during the pregnancy of the mother.

Some estimates give the figure that 7% of all babies are born with a birth defect or irregularity, from very minor to severe.

A number of factors can be the reason behind birth defects, including heredity and environment (such as a mother’s prescribed or illegal drug use). “Tetratogen” is the chemical agent that is attributed to causing birth defects. In fact, some drugs that were made to assist in the pregnancy of women have also been identified as containing teratogens. ┬áThese teratogens include: Delalutin, a drug administered to pregnant women for the prevention of miscarriages; Bendectin, a medication given to pregnant women, to fight nausea; and Ortho-Gyno, a spermicide.

It is really vital to be able to remember that the reasons behind many birth defects are still unknown. In some cases, the causes may include the mother’s own actions such as consumption of prohibited drugs or even the use of alcohol. In these scenarios, the possibility to do some legal recovery for injuries caused by birth may be limited or even non-existent.

Proving Your Case

In spite of the possible range of the reasons of the birth defects or birth injuries, you will have to provide some documents like how the medical providers and pharmaceutical companies failed to provide you with the appropriate medication and medical care. You also have to show how such acts resulted to the birth injury you are claiming to have suffered.

To be able to make the medical professional at fault, it must be proven the acts committed by him will show that his conduct was below the minimum standard of care that was expected of him. Generally, to find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. Your attorney will have to help you with the establishment of standard that is expected from the medical professional. This can be done by consulting other medical experts’ opinions. The presentation of expert witnesses can prove your point, together with the acts omitted by the medical expert that you claim to be at fault.

In lawsuit against medical malpractice, causation is sometimes a challenge to establish. It must be proven that the deviation from the accepted standard is the necessary reason why the injury happened. This is challenging because sometimes, the health care provider’s deviation from the standard of care may not have caused the plaintiff’s eventual injury, and vice versa. There might be other reasons proximate to the injury that happened.

Elements Of A Claim – Caregiver’s Malpractice

If you file a lawsuit filing a claim against your obstetrician, other caregivers, and/or a medical facility for birth injuries to your child, it will be your attorney’s responsibility to show that:

  • Defendant (which can include an obstetrician, physician, nurse, medical facility, pharmaceutical company, medical device manufacturer) owed a legal duty of care to your baby (and to you, in some cases);
  • Defendant breached that legal duty or standard of care by acting or failing to act in a manner in which a reasonably competent individual would have, under the circumstances;
  • Defendant’s breach of the legal duty or standard of care caused harm to your baby (and to you, in some instances).

Elements Of A Claim – Mother’s Use Of Prescribed Drug

There might be varying reasons why there is a birth injury. It might be caused by the use of prescribed drug or medication during the pregnancy of the mother. These claims are usuallly brought against pharmacists, pharmaceutical companies and treating physicians, and are usually based on a theory that the defendant(s) “failed to warn” the mother of the risk of taking the drug in question. If your suit is based on the mother’s use of a legally-prescribed drug during pregnancy, you will generally need to show:

  • The mother used the drug being subject of the controversy during pregnancy
  • The mother’s use of the drug manufactured by the drug company was prescribed by a physician, pharmacist, or other health care provider
  • The birth injury is not really brought by genetics, heredity, disease, or other factor (this is usually accomplished through expert opinion)
  • The drug in question, because of its formulation, is capable of causing birth defects
  • The drug in question actually caused the birth injury


Most of the time, damages claimed during birth injuries will be awarded to the child.

The damages that can be awarded to the plaintiff have been limited by recent laws and legislation. However, a number of categories of damages are available, and many are not limited to a specific amount.  The damages can include expenses used for medication, the compensation of the pain suffered and also the potential loss of earning capacity.These can include compensation for medical expenses, pain and suffering, and loss of future earning capacity.

Where a child is born with a birth defect, the parent may also bring a medical malpractice action against the obstetrician and/or the hospital at which the delivery occurred. The parent may be able to bring a lawsuit for his or her own emotional distress that arose from the baby’s birth defect, above and beyond liability to the child.

Getting Legal Help in a Birth Injuries Case

Any situation involving avoidable birth injuries should be evaluated for a potential legal claim. It is important to always seek the assistance of an attorney. Your lawyer will know how to handle your case and possibly knows how to prove what needs to be proven. Especially in light of deadlines for filing your lawsuit, meeting with an attorney sooner rather than later to evaluate your case is recommended.

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