A Parent's Guide to Birth Injury Law

New moms often second-guess themselves, says Dawn Pinnisi, a medical malpractice attorney who handles birth injury lawsuits. Her advice: Trust your instincts. “I’ve had many times where the mom will say, ‘I knew something was wrong,’” says Pinnisi, with Varcadipane & Pinnisi in New York City. “Most of the time, the mom is right. If something doesn’t sit right, go with your instinct.”

That starts with asking a lot of questions, especially if you’re told there’s been an injury to your baby during the birthing process.

“Don’t be afraid to ask why or how it happened,” she says. “Start a journal so you can have date and time entries. Write down names. Look at the name tags on the medical professionals who are attending to you and your baby. Take a picture of that person’s name badge. Many times, I have clients telling me the nurses give a lot more context than the medical doctors do. You get a nice nurse, an experienced nurse, they’ll really sit with you and be very knowledgeable. Get a copy of your medical records—and sometimes it can be two separate charts, your medical record and the baby’s.”

Getting a Second Medical Opinion and Consult a Birth Injury Lawyer

Then, get a second opinion, preferably at a different medical facility. “Early diagnosis is really key in treatment so you can avoid some serious and permanent issues,” says Pinnisi. “Regardless of a lawsuit, it’s very important that the parents make sure to get the baby in very quickly with another specialist, somebody that can weigh in on what’s going on. Your next call should be to a medical malpractice attorney.”

“The attorney will determine if anything the parents have said leads to a suspicion that a potential medical malpractice was committed,” adds Victoria Wickman, a medical malpractice attorney at the Law Office of Victoria Wickman in Manhattan.

Pinnisi suggests, “Even if you’re not sure, or maybe the doctor tells you this injury couldn’t be avoided, you still want to talk to an attorney. The attorney will have an objective medical expert review the records, and if the expert finds no evidence of malpractice, that can give you some closure.” Wickman says it’s not always possible to know right away when a birth injury has occurred, especially something like a brain injury caused by a lack of oxygen. It might not be noticed that something is wrong until the baby starts missing developmental markers.

Time Limits on Birth Injury Claims

“The good news is that, at least in the state of New York, the statute of limitations to bring an action on behalf of an injured child is 10 years from the date of the malpractice,” Wickman says. “A pediatrician will not say, ‘I think you should go hire a lawyer,’ but a pediatrician will say, ‘I think you should have a neurological consult because your child isn’t rolling over,’ or ‘your child is 3 years old and not walking,’ or ‘18 months and nonverbal,’ or ‘has hypotonia [low muscle tone].’ They’ll make referrals out, and that should lead to imaging of the brain. If there is something caused by hypoxic ischemic encephalopathy [lack of oxygen in utero], it shows up.”

Common Types of Birth Injuries

Injuries involving deprivation of oxygen are among the most common types of birth injury cases Wickman sees. This may show up on the brain scan as well as the fetal monitoring strip if, for example, there were signs that the baby was in distress and should have been delivered via C-section. Another common situation is a brachial plexus injury, which occurs when the nerves between the neck and shoulder are stretched. An attorney may use physical evidence of nerve damage, along with eyewitness accounts of the doctor trying to pull the baby out, to argue a malpractice case.

Other common causes of birth injuries include maternal infections that are not treated properly, lacerations to the baby’s face during a C-section, and failure to diagnose anatomical anomalies in utero that require surgical corrections afterward.

Mothers Should Seek Help for Themselves, Too

In addition to speaking up for their babies, Pinnisi says, moms shouldn’t be afraid to speak out for themselves. “You’re entitled to proper healthcare, too, and you’re entitled to be treated adequately to the standard of care,” she says. “I have had situations where the baby is fine and we take the case on behalf of the mom. You don’t have to have a birth injury to the baby to have a birth injury to the mom.”

That said, Wickman notes that it’s important for parents to understand that “the wheels of justice turn slowly” and that birth injury cases are extremely complex. “What I tell my clients is, ‘You hired me for a reason,’” she says. “I want you as the parent to focus on treatment, on getting the best care you possibly can. I want this to not even be in your mind. I will be the one moving your case along while you are getting yourself and your child as healthy as possible, because just dealing with an injured child is enough of an emotional and psychological toll. You don’t need to be worrying about a lawsuit.”

Unfortunately, Wickman says, there is little a pregnant woman can do to avoid many types of birth injuries. “They don’t have the control,” she says. “It’s not like they’re knowledgeable to look at a fetal monitoring strip and say, ‘My child is having late variable deceleration and not recovering properly.’ There’s nothing they could do or not do to prevent these mistakes. This is really on the medical community.”

Find an Experienced Birth Injury Attorney

If you suspect medical negligence is behind your or your child’s injuries, reach out to a medical malpractice lawyer who can inform you on your legal options and guide you through the legal process of a potential birth injury claim.