Head and Brain Birth Injuries: Legal Options and Potential Lawsuits

How birth injury lawyers work with medical experts to uncover negligence

By Canaan Suitt, J.D. | Last updated on November 8, 2023 Featuring practical insights from contributing attorney Peter M. Villari

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Injuries to a child’s brain during delivery can result in serious brain damage and permanent disabilities requiring lifelong medical care.

The costs of lifelong care are enormous, says Peter M. Villari, a medical malpractice attorney at Villari, Giannone & Matteo in Philadelphia who focuses on birth trauma cases. When a child’s birth injuries were due to medical negligence, affected families can bring a medical malpractice lawsuit against the responsible healthcare providers for financial compensation.

However, birth injury cases are complex, requiring legal and medical expertise. If you suspect that your child’s birth injuries were due to a doctor’s medical errors, it’s important to discuss your potential legal options with a birth injury lawyer as soon as possible.

What Are the Types of Brain Injuries at Birth?

“Early on, we want to know the diagnosis of the child’s birth injuries,” says Villari.

“For example, if the parents say their child has been diagnosed with cerebral palsy, we will investigate. The definition of cerebral palsy tells us that the child must have suffered some brain damage—for example, hypoxic-ischemic encephalopathy (HIE). ‘Hypoxia’ means lack of oxygen, and ‘ischemia’ means lack of blood flow to the baby’s brain. This results in certain cognitive and physical impairments and development delays.”

Other types of birth injuries that commonly cause brain damage include:

  • Skull fractures: External impacts on a baby’s head can fracture their softer skulls, resulting in brain trauma and severe injuries.
  • Intracranial hemorrhages: Bleeding under the skull or within the brain tissue can cause severe damage to the baby’s brain, resulting in movement and developmental complications.

We want to home in on the cause very quickly when evaluating a case. Many, in fact, all of these cases are driven by the medical diagnosis. As lawyers, we’ll ask what kind of testing has been done on the child. MRI scans of the brain are quite definitive in telling you and a doctor what is wrong with a child’s brain.

Peter M. Villari

What Causes Newborn Brain Damage?

Many potential causes of a newborn’s brain damage include genetic birth defects, complications during pregnancy, and preventable errors during the delivery process.

“We want to home in on the cause very quickly when evaluating a case,” says Villari. “Many, in fact, all of these cases are driven by the medical diagnosis. As lawyers, we’ll ask what kind of testing has been done on the child. MRI scans of the brain are quite definitive in telling you and a doctor what is wrong with a child’s brain.”  

Common causes of brain injuries during delivery include:

  • A doctor’s improper use of medical instruments such as forceps or vacuum extractors;
  • Failure to monitor signs of potential complications or injury, such as oxygen levels, heart rate, or fetal distress due to prolonged labor or time in the birth canal;
  • Cesarean section (C-section) complications or failure to perform a C-section when needed.

What is the Process of Identifying the Cause of Brain Injuries?

“Once the parents have signed the legal agreement and authorizations, we go after the child’s brain films and medical records,” says Villari.

“You might also be able to see ultrasounds done within 24-48 hours of birth, which can sometimes be significant in telling you the timeframe of an injury. You want the MRIs because you want to know what part of the brain was damaged. For example, was it the frontal lobe? There are many things that these tests can tell neuroradiologists as they seek an answer to the question: What caused this?”

Villari says that the brain itself can give tremendous clues as to how it was injured based on the pattern of injuries in the tissues or the particular areas and segments that were damaged: “If it’s an oxygen deprivation issue, the brain will show a very distinct pattern of injury. If it’s an infectious issue, the brain will show a very distinct pattern of injury. If it’s a genetic issue, the brain will show a very distinct pattern of injury.”

How Do You Determine if Brain Damage Was Due to Birth Defects or Birth Injuries?

Villari notes that what counts as a birth injury or a birth defect isn’t always clear-cut.

“From the very beginning of the consultation process, you’re trying to rule out what is or is not a viable lawsuit. If parents say their child has been diagnosed with a genetic condition or with autism, there is no known cause for ‘autism’ per se. However, the definition of ‘autism’ has become more complex in the medical profession. It’s now called Autism Spectrum Disorder (ASD) and has such a generalized definition that it may include several symptoms that can be related to cerebral palsy or an actionable birth injury,” he explains.

“So, you must be careful when people use the term ‘autism.’ If it’s autism as it used to be defined under DSM-5, then there’s no case since autism in that outdated sense can’t be a birth injury event. However, symptoms under ASD could constitute a lawsuit. Many lawyers don’t understand these nuances, so when they hear the word ‘autism,’ they automatically rule it out.”

What Must You Prove in a Birth Injury Claim?

Birth injury cases are a type of medical malpractice case. In any medical malpractice lawsuit, you must prove four essential elements:

1. Duty of Care

Medical professionals have a duty to treat their patients in accordance with the medical profession’s standard of care. In other words, doctors are expected to act competently—to do what a reasonable doctor would have done in their situation.

Actions that fall below the standard of care are considered medical negligence.

To establish the standard of care in a medical malpractice lawsuit, you need medical expert witnesses of a similar background and experience to testify. In birth injury cases, the relevant experts are often obstetricians and neonatologists.

2. Breach of Duty

Having established the standard of care with the testimony of medical experts, you have to prove that the doctor or other healthcare professional’s actions fell below the standard—in other words, they breached their duty through negligent action.

3. Causation

Next, you have to prove that the doctor’s medical negligence is what caused the child’s brain injuries.

“The process is very fact-related early on,” says Villari. “If we see from the diagnosis that it’s a type of medical condition that could have been prevented, we look at all the records to see how the birthing process went.” 

4. Damages

Finally, you show that the child was injured due to the negligent actions and spell out the compensation you are seeking.

What Compensation is Available Through a Birth Injury Lawsuit?

There are two types of damages in medical malpractice cases:

  • Economic damages, such as medical expenses and ongoing care, rehabilitation, and therapy.
  • Non-economic damages such as pain and suffering and loss of quality of life.

There is also the potential for punitive damages in cases of extreme negligence.

Find an Experienced Birth Injury Attorney

If you suspect your child’s brain injuries were due to preventable medical mistakes and you’re considering legal action, speak with a birth injury lawyer as soon as possible. It’s essential to act quickly to avoid missing your state’s statute of limitations for bringing a lawsuit.

Costs are a significant concern for most people. The good news is that most lawyers in this practice area provide free case reviews to learn more about your situation and explore your legal options.

Additionally, lawyers in this practice area work on a contingency fee basis, meaning you only pay if you win the case. Lawyers front the legal costs, including expert fees. If you do win, the attorney’s fees are taken as a percentage of the award, and the amount that lawyers can charge is regulated by law in most states.

Search the Super Lawyers’ directory to find an experienced birth injury attorney in your area. For more information, see our overview of birth injury law and related content.

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