What Makes a Childbirth Injury Malpractice?

More than 60,000 babies are born every year in Colorado. For many families, it’s a stressful but exciting adventure—a whirlwind of physical and emotional challenges that brings a joyous addition to their world. Along the way, however, the mother and child must rely on others to assist them through the birthing process—doctors, nurses, midwives, and other licensed professionals—who can make mistakes with long-term consequences.

Because most new parents have limited experience with childbirth, it can be hard to tell what’s normal and what’s an avoidable mistake. “Sometimes people don’t put two and two together and realize that something adverse happened with their birth,” says Alana Anzalone, a medical malpractice and personal injury lawyer at Anzalone Law Offices in Denver. “You have to trust your gut if something does not feel right, and you have to advocate for yourself quickly.”

Common Birth-Related Injuries to Mothers and Children

When mothers are injured, malpractice cases often involve a failure to diagnose problems, neglect in treating them, or a too-early pre- or postpartum discharge. Some of the most common issues, Anzalone notes, involve postpartum hemorrhaging, incomplete detachment of the placenta, preeclampsia (i.e. a dangerous spike in blood pressure) and surgical mishaps.

For children, there are two broad categories of birth injuries: those that are visible at birth and those that do not appear until later in life. The improper use of medical instruments like forceps can injure a child’s face or head, which is immediately visible after birth. Excessive force by a medical professional during labor can cause conditions like Erb’s palsy, a form of damage to the nerves that control a child’s arms or hands. More severe conditions, like cerebral palsy or learning disabilities, sometimes remain hidden until developmental issues emerge years later.

“These injuries can be brought on by mismanagement during the delivery process, a delayed delivery, or mismanagement of neonatal resuscitation after birth,” says , a medical malpractice attorney at Burg Simpson Eldredge Hersh & Jardine in Englewood. Often these injuries heal, but sometimes the damage is permanent. 

If a parent suspects something is wrong, Eldredge and Anzalone both say getting medical care is the top priority. Once a physician confirms there is evidence of an injury, however, it may be time to call a lawyer.

“If you believe there was an adverse event, don’t assume a hospital will resolve it for you,” says Anzalone. An attorney who specializes in medical malpractice can guide you through the steps—gathering evidence, assessing long-term needs, and filing a lawsuit if necessary. 

Proving Malpractice

Plaintiffs bear the burden of proof in birth injury lawsuits, which often require an army of experts. “You may need an obstetrician to determine if an error was made during the delivery process,” says Eldredge. “You may need a pediatric neuroradiologist to look at brain scans to determine when the injury took place, as well as pediatric neurologists, neonatologists, and other medical experts depending on the situation. It can take a whole host of experts to talk about a life care plan, and an economist to truly know the lifetime of costs that will be accumulated.”

Anzalone also recommends finding a lawyer who is a good fit for your family. “There are a lot of stressful decisions that have to be made in a birth injury case, and that person could be your lawyer for 18 years or more.”

Under Colorado law, there are specific timeframes in which you can bring a medical malpractice lawsuit. The rules are complicated, which is why it’s important to contact an attorney who specializes in medical malpractice and birth injury cases as soon as you suspect you or your child may have been harmed.

Unlike some states, Colorado law places strict limits on the amount of money a plaintiff can receive in a medical malpractice case—$300,000 for noneconomic impairments such as pain or emotional distress—and a cap of $1 million for economic damages such as medical bills, wage loss, and life care plan. Attorneys can argue for exceptions to the latter limit, but proving good cause can be difficult due to prior case law and the discretion of the judge.

Despite those limits, attorneys who represent victims of medical malpractice generally do not charge for consultations. 

“If you have questions or suspicions, reach out to an experienced attorney for answers,” says Eldredge, “because even if no one’s to blame, it can help you find peace of mind.”