Nerve Injuries at Birth: Legal Options and Potential Lawsuits

Understand the causes of nerve injuries at birth and how to pursue legal compensation

By Andra DelMonico, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on March 20, 2024 Featuring practical insights from contributing attorney Emily G. Thomas

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New parents hope to have a happy and healthy newborn baby after delivery. While this hope is fulfilled for many parents, there can be complications for some. Nerve injuries are a common occurrence during delivery. A newborn experiencing nerve injuries does not automatically indicate medical malpractice. Understanding the cause of nerve injuries and their potential impact can help parents know if they have a birth injury claim.

What Are Common Nerve Injuries at Birth?

Nerve injuries are one of the most common types of birth injuries. For many babies, nerve injuries are short-term, healing within days or weeks. Some more severe cases require treatment by medical professionals.

One of the most common birth injuries involving nerves is to the brachial plexus nerves. This large bundle of nerves stretches from the neck to the arm. They are susceptible to injury during birth because of their placement in the shoulder. Injury commonly manifests as brachial palsy affecting the upper arm or Erb’s palsy affecting the entire arm.

Another common type of nerve injury is Bell’s palsy. This is facial paralysis caused by pressure on the nerve during delivery. It typically goes away on its own but can require treatment if it is severe.

In some situations, diaphragm paralysis can happen. The nerve injury occurs in the muscle on the chest, which can negatively impact the baby’s ability to breathe.

In severe cases, a baby can experience hypoxic-ischemic encephalopathy. This is brain damage caused by a lack of oxygen. Brain injury can cause neurological or developmental problems. Oxygen deprivation can cause cerebral palsy.

Emily Thomas represents birth injury and medical malpractice clients with the Birth Justice Law Firm in Royal Oak, Michigan. “The brachial plexus nerve is probably the most commonly injured nerve I see with clients. It’s commonly referred to as Erb’s palsy.”

How Is Nerve Damage Caused in the Delivery Process?

Nerve injuries typically happen during the birthing process when the baby moves through the birth canal. The baby is more susceptible to nerve injury if they are large, breech, or has underlying conditions. In these situations, the doctor or obstetrician will recommend the mother opt for a C-section.

Another common cause of nerve injury is a difficult delivery. These are deliveries that take longer than 18 hours. A doctor may recommend a cesarean section to protect the baby from more extensive injuries.

Medical errors are also common causes of nerve injury during birth. This could be the improper use of forceps or vacuum extractors. It could also be the use of excessive force by medical professionals when attempting to move the baby. The act of pulling and twisting on the baby’s head, neck, and extremities can cause shoulder dystocia due to damage to the brachial plexus nerves.

In extreme and rare cases, there can also be damage to the spinal cord. This injury often causes permanent damage to the spinal cord, resulting in paralysis.

Parents can always call an attorney for a free consult with a lawyer specializing in birth injury law. I’ve had numerous parents call me from the hospital or while their child is in the hospital, saying I don’t feel that something’s right. Can you help us walk through it?

Emily G. Thomas

How Do You Prove Medical Negligence in Birth Nerve Injury Lawsuits?

You need to meet four elements to prove your case in a medical malpractice lawsuit. The first is to show that the health care provider owed a duty to the baby through a doctor-client relationship. This duty was to provide care in accordance with the accepted standard of care.

The second element is to show that the healthcare professional breached that duty. This could be through negligence, inaction when there should have been, or incorrect action. Medical experts can give testimony to validate this.

The third requirement is to show causation. By presenting evidence, you need to show that the healthcare provider’s breach is the direct cause of the baby’s nerve injuries. Finally, there needs to be damages for which you can seek recovery. This is the actual harm experienced.

You will need to collect and present evidence to prove each of these elements. This can be in the form of expert witnesses, medical records,

How Does a Birth Injury Lawsuit Provide Compensation?

A birth injury lawsuit can provide compensation for the injuries, damages, and loss suffered. This can include incurred medical expenses and estimated future care costs. It will consist of hospital costs, physical therapy, rehabilitation, and any other costs incurred from treatment by healthcare providers.

In addition to monetary expenses, you can seek compensation for non-monetary damages. These include damages like emotional distress, psychological stress, loss of enjoyment, and loss of ability. The nonmonetary damages available can vary from state to state, so speaking with an experienced birth injury lawyer can help you understand your legal rights. In some situations, the malpractice is so egregious that punitive damages are also awarded.

Thomas states that while parents might have a claim, including them in the claim can be challenging. “It can be difficult to name the parents sometimes, but they can possibly have claims depending on the law and the facts. Parents would be subject to a shorter statute of limitations, usually one to two years. Injuries are not always apparent in this time frame. But certainly, the child’s claim is paramount because these kids potentially may never work or live independently.”

There may also be additional resources for parents provided through a state fund. For example, Florida has the Neurological Injury Compensation Association (NICA) fund; Virginia has the Birth-Related Neurological Injury Compensation Program. Qualifying families receive financial assistance for the care of birth-injured babies, children, and adults.

When receiving compensation, the injured child’s parents do not get written a check for the total amount awarded. The injured party is the baby, so the compensation is meant for them. The compensation award money will be put into a trust. The money then gets paid out to outstanding debts and future care costs.

There are seven steps in the birth injury lawsuit process. However, not every lawsuit will go through all seven steps. Each medical malpractice case’s process varies based on the facts and how the parties choose to handle it. For instance, some cases never go to trial, as the parties agree to a settlement instead.

The first step is to consult with an attorney. This will help you determine if you have a legal claim and damages for which you can seek recovery. If you do, you and your attorney will enter the pre-litigation phase, where you gather evidence. This includes securing expert medical expert witnesses and compiling documentation.

Thomas states that she regularly speaks with parents looking for guidance, “Parents can always call an attorney for a free consult with a lawyer specializing in birth injury law. I’ve had numerous parents call me from the hospital or while their child is in the hospital, saying I don’t feel that something’s right. Can you help us walk through it?”

When ready, your attorney will file a lawsuit on your behalf. The other party will get notice of the lawsuit, and the discovery phase will begin. You and the other party will participate in mediation and settlement negotiations. If you come to an agreement, then your case will not move forward to trial. If you fail to reach an agreement, it will go to trial before a judge who will rule with a verdict. A successful settlement negotiation or favorable ruling will result in compensation for damages.

While this process seems straightforward, it can be a long, drawn-out process. Nerve injury medical malpractice cases tend to have complicated and extensive details. Your attorney will want to create a solid connection of causation between the medical negligence and the baby’s injury. At the same time, healthcare providers will present defenses that reduce or limit liability.

Another factor to consider is the statute of limitations. This is the amount of time you have to file your lawsuit. Each state has its time limit for medical malpractice cases, and some give an extension to birth injury cases. Speaking with a lawyer early on will ensure you are not barred from recovery because the statute of limitations has expired.

Find an Experienced Birth Injury Attorney

A child’s birth injury may be the result of typical birth trauma. It could also be the result of medical malpractice. Seeking a second doctor’s opinion and speaking with a birth injury lawyer can help you understand your rights.

A lawyer experienced with birth injury medical malpractice cases can provide insightful legal advice. With their representation, you may be able to pursue legal action for your child’s nerve injuries. Visit the Super Lawyers directory to search for a personal injury attorney who practices birth injury medical malpractice.

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