How Do I Prove Medical Malpractice With a Child Birth Injury?

The birth of a child is a stressful but exciting adventure. Few scenarios are more frightening for new parents than something going wrong during the birth of their child.

We trust doctors to use professional skill and good judgment during the birthing process. Unfortunately, doctors are human and can make mistakes. But when such mistakes deviate from the accepted medical standard of care, it is malpractice. To prove medical malpractice, you must establish that the doctor made a mistake that violated their professional standard of care and that this mistake caused your child’s birth injury.

“You have to prove that the care was not within the accepted standards of medical practice — that is, what a reasonably competent practitioner would have done under the same or similar circumstances when faced with a patient in the condition of the plaintiff at that time,” says Andrew E. Greenwald, a personal injury attorney at Joseph Greenwald & Laake in Greenbelt, Maryland.

The child and their parents can get compensation for medical malpractice. Talk to a birth injury lawyer for questions about getting compensation for your child’s injuries.

Medical Errors During Childbirth

The mother and child must rely on others to assist them through the birthing process, including doctors, nurses, and midwives. Unfortunately, even top healthcare professionals can make mistakes with long-term consequences.

Most new parents have limited experience with childbirth. It is hard to tell what’s normal and when a medical provider makes 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.”

Birth injuries generally occur during or shortly following the delivery process. Unlike birth defects, which arise during pregnancy and are due to genetic, environmental, or prenatal care mistakes, birth injuries are the result of actions committed by a doctor or healthcare professional in the birthing process.

Common Birth Injuries for Mothers

When mothers suffer injuries, malpractice cases often involve a failure to diagnose problems. Medical errors involving the mother include neglect in treating them, or a too-early pre- or postpartum discharge.

According to Anzalone, some of the most common issues involve:

• Postpartum hemorrhage
• Incomplete detachment of the placenta
• Preeclampsia (that is, a dangerous spike in blood pressure)
• Surgical errors

Common Types of Birth Injuries For Children

For children, there are broad categories of birth injuries, which include:

1. Injuries that are visible at birth. Improper use of delivery 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 spinal injuries or Erb’s palsy, a type of damage to the brachial plexus nerves that control a child’s arms or hands.
2. Injuries that do not appear until later in life. More severe conditions, like cerebral palsy or learning disabilities, sometimes remain hidden until developmental issues emerge months or years later. Causes of these injuries include hypoxia or oxygen deprivation, resulting in brain damage.

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

Often these injuries heal, but sometimes the damage is permanent. Birth-related injuries can have serious short-term and long-term impacts on the newborn child’s health. Birth injuries also result in financial strains due to the need for continued medical treatment.

If You Suspect Injuries, Seek Immediate Medical Care

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, 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. A lawyer specializing in medical malpractice can guide you through the steps — gathering evidence, assessing long-term needs, and filing a lawsuit if necessary.

Elements of Proving Medical Malpractice in a Birth Injury Case

There are four basic elements to a medical malpractice claim:

• Duty of care. You had a doctor-patient relationship, which put the doctor under a duty to provide you with the accepted standards of care of the medical profession;
• Breach of duty. Your healthcare provider breached their duty to you through a medical mistake that fell below the standard of care as determined by a medical expert;
• Causation. You or your child suffered injuries that were a direct result of the doctor’s actions (as opposed to some extraneous factor); and
• Damages. You or your child suffered actual harm.

A common example would be when a doctor decides to deliver a baby vaginally when the standards call for a Cesarean section. As a result, the baby suffers fetal distress and a collarbone fracture. If the doctor had the time and opportunity to ascertain the potential complications, the failure to perform the C-section could constitute malpractice.

Plaintiffs Have the Burden of Proving Medical Malpractice

“If there’s reason to believe something went wrong, there’s no reason not to reach out to a lawyer and find out if there’s a basis to proceed,” says Greenwald. “The case is basically to help provide the best possible future for the child.”

Plaintiffs bear the burden of proof in birth injury lawsuits, which often require a team of experts. Unlike many other personal injury scenarios, such as a car accident, establishing the elements of medical malpractice requires the assistance of expert testimony.

Expert Witnesses Are Essential in Birth Injury Cases

The judge or jury needs to hear from qualified professionals who can establish the baseline “standard of care” and explain how your healthcare provider deviated from it.

“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.”

Getting an Affidavit or Certificate of Merit for Your Birth Injury Claim

In many states, the law requires all medical malpractice plaintiffs to file a “certificate of merit” before bringing a lawsuit against a healthcare provider. In Maryland, where Greenwald practices, plaintiffs must submit the certificate 90 days before filing a lawsuit.

This certificate is basically an affidavit signed by a medical expert qualified in the same field as the defendant. It sets forth the basic elements of the malpractice claim, including the applicable standard of care, how the medical provider deviated from that standard, the specific injury to the child arising from that deviation, and what the defendant could have done differently to avoid or prevent that injury.

The rationale for this requirement is that certificates help reduce the number of weak medical malpractice claims, thus increasing the efficiency of the court system and saving legal expenses for the parties involved.

How Do Lawyers Prepare for a Birth Injury Claim?

Each case is unique, but the thing they all have in common is the exhaustive amount of research that goes into a birth injury claim. Greenwald seeks out every medical record and piece of paper associated with the pregnancy and birth, including:

• Prenatal records
• Labor and delivery records
• Neonatal records
• The baby’s chart
• The fetal monitor strip
• The results of any MRIs or spinal taps
• Genetic records

“They take a lot of time,” says Greenwald, who has handled cases ranging from inappropriate use of an instrument to deliver the baby (e.g., forceps, vacuum extractors) to failure to recognize asphyxiation on the fetal strip.

“You have to have expert testimony in the special areas that are involved, and the medical area. You may need an obstetrician, a neonatology expert, a neuroradiologist, or a pediatric intensivist — and that doesn’t include a damages expert and life-care planner to determine what the child needs, or an economist to say what the cost will be. These cases are very expensive.”

Anzalone 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.”

Arbitration and Limits on Medical Malpractice Awards

Some states allow either party to waive arbitration, a type of alternative dispute resolution that avoids going to court. If you do opt for arbitration and lose, you can still file a medical malpractice lawsuit. However, the judge generally considers the arbitrators’ decision as accurate.

And if you lose a lawsuit following arbitration, you can be liable for the defendant’s legal fees and related costs.

Be Mindful of State Caps on Damages for Medical Negligence

Some states put a cap on the amount of noneconomic compensation in medical malpractice lawsuits. Noneconomic damages include pain and suffering and emotional distress. Other states have no maximum limit. Talk to an experienced medical malpractice lawyer to understand the limits for compensation in your state.

For example, Colorado law places strict limits on the amount of money you can receive in a medical malpractice case. Victims of birth injury malpractice filing a claim on November 1, 2025, can only seek $415,000 for noneconomic impairments.

Maryland also places strict caps on the amount of pain and suffering damages that a judge or jury can award in a medical malpractice case. “That cap does not affect the costs of taking care of the child,” Greenwald adds. “There’s no cap on the economic loss — only the pain and suffering.”

The cap for new medical malpractice claims arising from a doctor’s negligence is $905,000 (as of November 1, 2025). If the child died as a result of the defendant’s malpractice, the family members may seek up to $1,131,250 in noneconomic damages on a wrongful death claim.

Act Quickly To Avoid Missing Legal Deadlines

Under state law, there are specific timeframes to bring a medical malpractice lawsuit. The statute of limitations only gives you a limited amount of time to file a lawsuit against negligent medical providers.

The statute of limitations for birth injury claims varies by state. States may have different time limits for wrongful death claims after a fatal birth injury. There are also exceptions that may give some parents more time to file a claim.

The statute of limitations rules are complex and strict. If you file a lawsuit just one day late, you may lose out on any compensation. Contact an attorney who specializes in medical malpractice and birth injury cases as soon as you suspect you or your child suffered harm.

Consult a Medical Malpractice Attorney About Your Birth Injury Claim

If your child was injured during the birthing process and you believe a healthcare professional’s negligence caused the injury, speak to an attorney with experience in birth injury and medical malpractice lawsuits as soon as you can.

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.”

An experienced attorney will understand your state laws, court procedures, the statute of limitations, and the medical experts necessary to start evaluating the viability of your claim.

Use the Super Lawyers directory to find a reputable and experienced birth injury lawyer in your area.