McArdle Law
Medical Malpractice Counsel

Birth Injury

Overview of Birth Injury Malpractice

1 in 142

A birth injury occurs 1 in 142 times for babies born in the United States. These injuries can involve severe conditions involving lifelong complications and medical needs. With these conditions, families often struggle with the costs of physical therapy, specialized schooling, and other targeted care. Nationwide, hospitalization for birth defects costs over $2.6 billion annually, according to the CDC.

Parents seek out lawyers and investigate the legal process only when the child has suffered a devastating injury that has ruined or severely hampered a child’s normal life.


Most Common Birth Injuries

The most common birth injuries in the U.S. that relate to malpractice include:

Brain injury from lack of oxygen: Hypoxia occurs when the baby's brain is not getting enough oxygen. A tangled umbilical cord, infection, or damage to the placenta can cause hypoxia. Doctors learn to detect hypoxia early and to act to eliminate the risk of the mother or child facing harm. If a doctor fails to notice a hypoxic event and take quick action to avoid injury, then the delivery team may have committed malpractice.

If a baby is in fetal distress, the delivery team will often begin an emergency C-section. Such distress occurs when the baby's heart rate slows. This can happen due to a sudden drop in a mother’s blood pressure or bleeding from placental abruption. Doctors may also order an emergency C-section for uterine ruptures, cord prolapses, slowed labor, or placenta previa. If the delivery team fails to notice that the mother needs a C-section, the team may be liable for malpractice.

Brain injury from direct trauma to the head. Another type of brain injury at birth is caused by trauma to the head that can result in bleeding inside the brain or direct injury to brain tissue. Such injury can occur when the delivery team fails to use forceps or a vacuum properly.

  • Failure to use a vacuum properly: When a mother has difficulties delivering a baby, a vacuum may be needed to assist her. Vacuums can be latched onto a baby’s shoulder or skull and guide the child through the birth canal. Doctors and nurses are responsible for placing the vacuum on the baby in a way that does not needlessly endanger the baby. When the vacuum is used in the wrong way, severe injuries to both the mother and newborn can occur.

  • Failure to use forceps properly. When a mother has difficulty delivering her baby, or if the baby is in the wrong position in the womb, the doctor may use forceps. If used the right way, forceps can reduce the baby's risk of oxygen deprivation and distress. Oxygen deprivation and distress can cause cerebral palsy and other birth injuries. If a doctor chooses to use forceps, that doctor must use extreme care. Extreme care is needed because forceps can cause nerve damage in the baby's neck or chest, and other injuries to the baby's head.

Nerve injury to an arm or hand. The typical nerve injury is called Erb’s palsy, brachial plexus palsy, or shoulder dystocia.

As such, failures of the delivery team can include:

  • Failing to respond to distress as seen by the baby’s heartbeat on a fetal monitor.

    couraging a mother to try a Vaginal Birth After Cesarean section (rather than a repeat C-section) — when the hospital is not equipped to have an emergency C-section if the mother’s uterus ruptures during the VBAC labor.

  • Allowing a pregnancy to go beyond 41 weeks without proper specialty testing, or 42 weeks in any event.

  • Failing to act on changes in the mother’s condition during pregnancy, especially gestational diabetes (diabetes that starts in pregnancy) or pregnancy-induced hypertension (also known as pre-eclampsia).

  • Failing to respond to the umbilical cord being entrapped or compressed.

  • Misuse of a vacuum extractor.

  • Misuse of forceps.

  • Misuse of the labor-inducing drug Pitocin.

  • Delay in ordering or performing a C-section.

  • Using the wrong maneuvers to deliver a baby whose shoulder has become stuck in the birth canal.

  • Poor resuscitation and newborn care after birth.

  • Failing to aggressively treat jaundice in a newborn.

  • Neglecting to refer high-risk patients to doctors specialized in this area;

  • Failing to note and address changes in the fetus’ condition.

  • Failing to perform sufficient prenatal testing.


A Lawyer Focused on Birth Injuries Can Help.

For cases involving children who have been harmed, long term care is the centerpiece. I seek to ensure each family has a lifelong advocate to fight for their child. I help on a number of fronts specific to birth injury cases, including advice on:

  1. Putting in place a structured settlement with the goal of ensuring your child’s medical, educational, and financial needs are funded for life.

  2. Ensuring the child receives appropriate speech therapy, physical therapy, and psychotherapy.

  3. Hiring surgeons and other medical professionals to prove the case and to treat the child after the case has closed.

  4. Providing support to caregivers, and:

  5. Working with specialists to establish a special needs trust, to ensures your child’s eligiblity for government benefits is not threatened by settlement.

Call me.

If you would like to discuss a potential legal matter or referral, call my office at 941-214-7122.