Birth Injury Facts Every Parent
Should Know

What’s the difference between a birth injury and a birth defect?

Birth injuries and birth defects are distinguished mainly by the cause.

Causes of birth defects

Birth defects are often the genetic results of the baby’s DNA. There is nothing a parent or doctor can do to cause or prevent genetic defects.

However, some birth defects can be caused by maternal practices (e.g., alcohol or illegal drug use) or drugs legally prescribed by a doctor for a mother during pregnancy.

In the early 1960s, Thalidomide was prescribed as a sedative and treatment for morning sickness. More than 10,000 babies were born with severe deformities. Responsibility for such non-genetic birth defects might be traced to the negligence of a health care professional prescribing harmful drugs.

Can a doctor be held liable for damages in the case of genetic birth defects?

While a doctor is not liable for the cause of genetic birth defects, they might be liable for a failure to detect and advise parents of such defects.

For example, a doctor’s failure to detect or advise of a birth defect might be considered OB-GYN malpractice if it delayed treatment that could have mitigated the harm of the defect or the cause of a denied opportunity to terminate a pregnancy.

Causes of birth injuries

Birth injuries are caused by some event or failure that occurs during the birthing process. While birth injuries are not always due to negligence or other faults—many birth injuries are indeed caused by the negligence of a medical professional.

What are the most common birth injuries?

Among the most common birth injuries to babies are:

• Brachial plexus palsy (weakness or paralysis of the arm)
• Bone fractures
• Cephalohematoma (accumulation of blood under the scalp)
• Caput succedaneum (swelling of the scalp)
• Perinatal asphyxia (diminished blood flow to and from the fetus)
• Intracranial hemorrhage (bleeding inside the skull)
• Subconjunctival hemorrhage (a tiny blood vessel breaks underneath the clear surface of the baby’s eye)
• Facial paralysis
• Spinal cord injuries
• Cerebral palsy (caused by oxygen deprivation during birth)

How common are birth injuries?

According to the American Academy of Pediatrics, birth injuries occur in approximately 29 out of every 1,000 births in the U.S., with scalp and clavicle fractures being the most prevalent.

Are birth injuries preventable?

Most birth injuries are preventable. However, if a birth injury occurs, it’s not necessarily the result of anyone’s oversight, negligence or other act or omission. They can sometimes be due to factors not in the control of medical professionals.

On the other hand, many birth injuries are the result of a failure of medical doctors and nurses to take timely action during delivery.

Preventive care might include:

• Proper monitoring of vital signs during labor
• Using ultrasound to see the baby’s size and position
• Performing a cesarean section (C-section) when indicated
• Observing a general duty of care expected of medical professionals

How long do birth injuries last?

While some birth injuries can be corrected by medical treatment or surgery, others have long-term effects and result in lifelong conditions (e.g., cerebral palsy). Those conditions require extensive medical care and treatment for the child’s health and well-being for the rest of their life.

Such treatments may include physical therapy, speech therapy and special equipment. Some children with cerebral palsy may never be capable of independent living.

When is a doctor responsible for a birth injury?

Some birth injuries occur without anyone being responsible. Accidents can happen because of events or conditions out of any person’s control.

But many birth injuries are caused by the acts or omissions of medical professionals. They might be held liable for damages to the infant suffering from the results of those birth injuries.

Medical malpractice is a subcategory of tort law. A tort is an act or omission that causes harm to another person or property. That act or omission might be negligent or intentional.

The basic elements of a personal injury tort (including medical malpractice) that a plaintiff must prove are liability and damages. For a doctor to be held liable for medical malpractice, they must have negligently or intentionally failed to observe their duty of care, and that failure must be the proximate cause of the harm to the victim.

What is a doctor’s duty of care?

A doctor’s duty is measured by general standards applied on a case-by-case basis. The prevailing general standard is what a reasonable person with the license and technical training of a physician would do under the same circumstances.

It’s often presumed that every doctor takes the Hippocratic Oath, which is to “First do no harm.” This phrase is not in the modern oath. However, it is a fairly concise statement of the general standards applied today. That is, during and before a delivery, don’t do anything that will harm the baby.

A modern statement of a doctor’s duty is set forth in the frequently updated AMA Code of Medical Ethics adopted in 1847.

In a nutshell, in a medical malpractice case, the most probative evidence of a doctor’s duty is the testimony of medical expert witnesses.

Examples of medical malpractice

Common causes of action for medical malpractice in cases of birth injuries include:

• Failing to correctly diagnose a birth defect
• Failing to order or correctly interpret lab tests
• Prescribing improper or harmful medication
• Using improper delivery procedures

Compensation in birth injury lawsuits

The other basic element of a medical malpractice lawsuit is damages. Most damages are compensatory. That is, the plaintiff is compensated for economic and non-economic loss.

• Economic damages are monetarily measured (e.g., medical costs).
• Non-economic damages include pain and suffering and other damages that are not measured by any recognized market value.

In the case of intentional, wanton or grievous negligence, a jury might also award punitive damages. These are not meant to compensate the plaintiff for loss, but rather to punish the defendant. They serve as a deterrent against future misconduct of the defendant but also as notice to the public in general.

When to contact a birth injury attorney

Hopefully, incidents of birth injury will be rare. However, even the best physicians make mistakes, particularly in the case of fatigue or other impairment.

If you have the misfortune of having your newborn suffer from a birth injury, we encourage you to contact Brown Trial Firm. Laura Brown has years of experience in birth injury law, helping families like yours all across the U.S. get the compensation they deserve. If you need help with your birth injury lawsuit, contact us today for your free consultation.