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 July 25, 2023 Featuring practical insights from contributing attorney Kristen L. Beightol

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The birth of a child is a special time. Unfortunately, babies are sometimes injured during birth due to medical mistakes. Some birth injuries resolve quickly, while others bring lifelong medical consequences. Regardless of the severity of your baby’s birth injury, you shouldn’t navigate the law 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 asking a birth injury lawyer at a consultation.

What is a Birth Injury?

At the outset, it’s worth noting that there’s a difference between birth injuries and birth defects. Birth defects occur during pregnancy and can be the result of various genetic and environmental factors. Birth injuries, by contrast, are a result of something that occurs during delivery or shortly after the birthing process.

Examples of common types of birth injuries include:

  • 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)
  • Spinal cord injuries
  • Cerebral palsy
  • Erb’s palsy resulting from brachial plexus injuries
  • Broken bones resulting from the improper use of forceps
  • Injuries resulting from a Cesarean section (C-section)

These are just examples of injuries that could be involved in a birth injury case. The reality is that there are many causes of birth injuries, and every case is unique. If you suspect medical malpractice in your child’s birth injuries, do not delay in contacting a medical malpractice attorney.

Birth injury cases can be the most expensive type of medical malpractice case to pursue because of the number of experts you typically need… [However], most attorneys who do medical malpractice litigation work on what’s called a contingency fee agreement, [where] you aren’t charged until and unless you’re successful in your claim… Because attorneys have to front expenses, they have to feel like your claim is one that they can move forward with.

Kristen L. Beightol

What Do You Have to Prove in a Birth Injury Case?

Birth injury cases are a type of medical malpractice lawsuit, says Kristen L. Beightol, a medical malpractice attorney at Edwards Beightol in Raleigh, North Carolina. In any medical malpractice case, you must prove that a healthcare provider did something negligently while providing medical care, and that their negligent actions caused the patient harm resulting in damages.

While these basic elements of a medical malpractice lawsuit are the same in every state, each state sets its own requirements regarding what you need to prove those elements.

For example, medical malpractice cases typically require a medical expert to review the medical records related to alleged medical negligence and assess if there is a case. This is a standard requirement, but the qualifications for medical experts and who can testify are set by laws that vary from state to state.

“Experts are unique in every case,” says Beightol. “It depends on the type of care and the parameters set by state law regarding expert requirements. In birth injury cases, you typically need the folks who are involved in labor and delivery. Again, requirements vary, but you also need experts to prove causation between the negligence and the damages. In birth injury cases, that can require multiple experts, including neuroradiologists, neonatologists, obstetricians, etc.”

The number of experts you will need depends on the care at issue, adds Beightol. Sometimes you’ll need separate experts to explain each of the following:

  • The standard of care;
  • How the event happened;
  • The timing of injury; and
  • The cause of injury.

“Additionally, in many states the practice is to have multiple experts speak on the standard of care even if one provider is at issue,” says Beightol. Ultimately, the number of experts called upon is “a judgment call per attorney, but that makes these cases more difficult, time-intensive, and expensive to pursue.”

What Is the Statute of Limitations for Birth Injury Cases?

A statute of limitations is a law that says how much time following an incident someone has to take legal action. Essentially, it’s a legal deadline for suing.

While “there are general rules for the statute of limitations, those rules have many exceptions and pitfalls,” says Beightol. Statutes of limitations are especially complicated in birth injury cases since they involve injuries of a minor. For example, the deadline to file the parents’ claim for medical expenses until the child’s age of majority may be different than the child’s claim for their injuries, including medical expenses after they reach the age of majority.

“As a result, no one should ever try to guess their statute of limitations based on information they see online or out in the world. Instead, if someone is interested in pursuing a medical malpractice case, they should immediately contact an attorney.

“An attorney will get an expert to review their case and be able to give them an opinion on the statute of limitations based on their specific facts and the expert review of when the negligence occurred and what the negligence was.”

There are general rules for the statute of limitations, [but] those rules have many exceptions and pitfalls… No one should ever try to guess their statute of limitations based on information they see online or out in the world… Assumptions oftentimes get you into trouble… My advice to anyone who is thinking of filing [a medical malpractice claim] is to seek legal advice early… from someone who has experience in the area.

Kristen L. Beightol

How Much Do Birth Injury Cases Cost?

On the one hand, Beightol says that in her experience, “birth injury cases can be the most expensive type of medical malpractice case to pursue because of the number of experts you typically need.”

On the other hand, “as far as upfront costs for the client are concerned, they aren’t a thing—most attorneys who do medical malpractice litigation work on what’s called a contingency fee agreement. With a contingency fee, you aren’t charged until and unless you’re successful in your claim, in which case you owe a percentage of your recovery to the attorney.”

In addition, lawyers who agree to take your case typically front the costs of pursuing the claim, including hiring experts. If you win your case, you will reimburse your legal team from the compensation award.

“Because attorneys have to front expenses, they have to feel like your claim is one that they can move forward with, sufficient that they’re going to pay money that they may not get back,” says Beightol. “A lot goes into the decision to take a case; it’s a partnership, like anything else.”

The bottom line for you? “Cost should not be something that delays someone from contacting an attorney since there are no upfront costs. Instead, the true cost is going to come if you don’t contact someone soon enough, and the cost will be the entire case.”

Consult with a Birth Injury Attorney Immediately

Beightol has advice for people who are considering a medical malpractice or birth injury lawsuit: “Don’t guess, don’t assume, and contact legal counsel as soon as possible.”

The reason? “Assumptions oftentimes get you into trouble… Unfortunately, believing that something is negligence versus meeting the requirements under state law to prove negligence can be very different things. Someone’s assessment may not be consistent with the law of their particular state. So, my advice to anyone who is thinking of filing any lawsuit, and particularly medical malpractice claims, is to seek legal advice early, and to seek it from someone who isn’t new to the practice but has experience in the area.”

When searching for a lawyer, bear in mind that there are many reasons why a lawyer might decline your case, and not all of them are because your case lacks merit. For example, medical malpractice is highly specialized, and it may be that the lawyer you contacted focuses on dental cases or nursing home injury cases instead of birth injury cases. They decline you because your case isn’t in their area of expertise, not because you have a bad case.

Or it could be that the lawyer you happened to contact is swamped.

“We have a real crisis in the medical malpractice arena. There are too few lawyers and there are too many cases,” explains Beightol. “Lawyers have an ethical obligation not to take on more than they can handle. But these cases are time-intensive. The laws, at least in North Carolina, are very intricate, and it can take months to put these cases together. So, even if there’s a wonderful case, a lawyer still needs to have the time to put the case together.”

The upshot is that if one lawyer declines your case, you should contact a few more for a second or third opinion. One attorney may not think you have a good case, but another attorney might. It’s imperative to contact lawyers right away so you aren’t being turned down because of timing, even if you have a good case.

FAQs for an Birth Injury Attorney

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

What is the statute of limitations for bringing a birth injury lawsuit?

Beightol says that you should only ask an experienced medical malpractice attorney about the statute of limitations for your specific birth injury case. Your attorney will be well-positioned to give you information on the timeframe.

What must be proven in a medical malpractice lawsuit?

In general, you have to prove the four elements of negligence – duty, breach of duty, causation, and damages. How you prove these things is complex, and varies by state. Again, it’s imperative to have an attorney involved who understands and has experience with your state’s medical malpractice laws.

What financial compensation is available for birth injuries?

Like everything in a birth injury case, the answer to this question is highly fact-specific. In deciding whether to take your case, an attorney will assess if they think the case is worth it. They will be able to give more insight on the types of damages you may be able to get through a judgment or settlement.

Finding an Experienced Birth Injury Attorney

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.

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