What is Birth Injury Law?

Common questions you might consider if your baby is injured during birth

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on January 27, 2023

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The birth of a child is a special and happy time. Unfortunately, babies are sometimes injured during birth due to medical mistakes. Some birth injuries resolve quickly, while others result in the need for lifelong care or, in some tragic circumstances, the death of the child. Regardless of the severity of your baby’s birth injury, you shouldn’t have to navigate your emotions and the law all on your own.

The information on this page is designed to help you feel prepared if you decide to pursue legal action with a birth injury lawsuit. Below, you will find an overview of birth injury law and common questions you might consider bringing to a birth injury lawyer in the event that you decide to hire one.


At the outset, it is important to determine whether the complications your child is facing are a result of birth injuries or birth defects. Birth defects are usually a result of something that happened before or during pregnancy. Birth injuries, however, are a result of something that happened during the birthing process.

Birth injuries are sometimes unavoidable, but when they are avoidable, they are likely the result of medical errors.

Bringing a Claim for Birth Injury

Most jurisdictions allow a parent to bring a case on behalf of their injured child, commonly approached as medical malpractice cases.

Medical malpractice is a scary term that sounds like your medical professionals were intentionally out to get you. While a medical malpractice claim can have devastating results, it’s the result of negligence—a mistake—on the part of someone involved in your health care or medical treatment. Learn more about medical malpractice.

In a medical malpractice case, you or your birth injury attorney will need to show that the healthcare provider owed your child a duty of care and breached that duty, causing the child’s birth injuries.

Who Can I Sue?

You can often hold more than one party liable for your child’s injuries—including the hospital or the doctor or other medical experts. The specifics about how you can sue can vary depending on the timing of your child’s serious injuries and other facts specific to your situation.

Common Types of Birth Injuries

If you are not sure if your baby suffered a birth injury and birth trauma or fetal distress, the following list may be a helpful starting place for understanding the causes of birth injuries. Of course, you should use this list only as a guide, and you should talk to a healthcare professional or an attorney for more specific guidance.

  • Broken bones resulting from the improper use of forceps or other causes
  • Cerebral palsy
  • Erb’s palsy resulting from brachial plexus injuries
  • Spinal cord injuries
  • Kernicterus
  • Asphyxia (oxygen deprivation) resulting from umbilical cord strangulation or being in the birth canal too long
  • Brain damage resulting from hypoxia or lack of oxygen to the brain (this is also called “hypoxic-ischemic encephalopathy” or HIE)
  • Injuries resulting from a Cesarean section (C-section).

Common Questions for an Attorney

Below are some common questions about your legal rights you might want to consider when meeting with an attorney for a case evaluation.

  1. What’s the difference between a birth injury and a birth defect?
  2. Who can I sue for a birth injury?
  3. What is the statute of limitations for bringing a birth injury lawsuit?
  4. Can I sue for a birth injury on my child’s behalf?
  5. What must be proven in a medical malpractice lawsuit?
  6. What is the standard of care in medical negligence lawsuitss?
  7. What financial compensation is available for birth injuries?
  8. Will medical bills be covered by compensation?
  9. Can I bring a wrongful death lawsuit?

Finding the Right Attorney for Your Needs

It is important to approach the right type of attorney so that you can make sure you hire someone who can help you through your entire birth injury claim. To do so, search the Super Lawyers directory, using the search box to find a lawyer based on your legal issue or location.

To help you get started, you may want to consider looking for a personal injury attorney with experience in medical malpractice law or birth injury law.

Why Should I Talk To a Lawyer?

Birth injury cases involve a lot of technical research, including analysis of the delivering parent’s birth chart and the baby’s birth chart. An experienced birth injury lawyer will know how to get the needed medical records, and they’ll know what to look for within them. Your lawyer or legal team will also have the experience necessary to best decide who to hold liable for your child’s injuries and what kind of compensation is available.

A lawyer will further be able to anticipate potential problems with your case and advise you on how to approach them. They may even be able to help you avoid potential problems altogether and will keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.

What do I do next?

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