Lady Giving Birth

According to the Centers for Disease Control and Prevention (CDC), of every 1,000 children, between 6 to 8 will suffer from a birth injury. That means that roughly 1 in every 9,714 people in the United States are born with a birth injury. 

Birth injuries take place when an injury or death results to an infant or mother during the birthing process due to medical negligence, malpractice, an error, or improper hospital policies. Birth injury litigation falls within medical malpractice and can additionally be pursued if there is negligent prenatal care. Many things can lead to negligent prenatal care, such as failure to identify birth defects, failure to diagnose a disease that could be life-threatening to the child or mother, failure to identify an ectopic pregnancy, a complication where the embryo attaches to the outside of the mother’s uterus.

All of these birth injuries have one thing in common: a healthcare professional acted in a negligent way and that negligence was the sole cause of the child’s or mother’s injuries. If you cannot prove that the healthcare professional’s actions were negligent, then you will not be able to pursue a medical malpractice case. 

Types of Birth Injuries

The two most common conditions that affect a child injured during birth are Erb’s palsy and cerebral palsy. These conditions are the most common type of brachial plexus palsy and are neurological conditions that lead to difficulty or lack of muscle control or movement. These can occur when a baby’s brain, nerves, or nerve fibers are damaged before, during, or slightly after birth.

Cerebral Palsy

The CDC reports that cerebral palsy alone affects 1 in 345 children in the U.S., with a higher commonness for children born preterm or at a low birthrate. The CDC estimates that the lifetime cost of taking care of a person diagnosed with cerebral palsy to be $1 million. Cerebral palsy can be broken up into two different types of cases: congenital cerebral palsy and acquired cerebral palsy. Congenital cerebral palsy accounts for 85% - 90% of all cases and occurs when a child’s brain is damaged before or during birth. Acquired cerebral palsy accounts for the remaining 10% - 15% of all cases and is caused by brain damages that takes place around 28 days after birth. 

There are four primary categories of cerebral palsy, the most common being spastic cerebral palsy. In fact, the CDC reports that roughly 80% of individuals with cerebral palsy have spastic cerebral palsy and sustain one of three types: spastic diplegia/diparesis, spastic hemiplegia/hemiparesis, and spastic quadriplegia/quadriparesis. Spastic diplegia/diparesis mainly affects the legs but can sometimes affect the arms as well (arms are less affected or not affected at all). Spastic hemiplegia/hemiparesis affects only one side of the body and typically affects the arms more than the legs. Spastic quadriplegia/quadriparesis affects both the arms and legs, the body, and the face and is the most severe type of spastic cerebral palsy.

The other three types of cerebral palsy are dyskinetic, ataxia, and mixed cerebral palsy. Dyskinetic cerebral palsy results in significant trouble when controlling movement in an individual’s hands, arms, feet, and legs and makes it extremely difficult to sit down and walk. Ataxia cerebral palsy affects an individual’s balance and coordination, making it tough to walk, make quick movements, or make movements that require control, like writing. Mixed cerebral palsy is a condition where an individual has more than one type of cerebral palsy, typically with spastic dyskinetic being the most common type.

Erb’s Palsy

Erb’s palsy is a condition in which damage happens to the arm’s main nerves, which causes paralysis in that arm. This condition is most commonly caused by difficult or abnormal childbirths (even c-section) or labor, although it can occur later in life due to a traumatic injury. 

A brachial plexus is a group of five nerves that connect the spine to the arm and hand, and if these nerves fail to work because of stretching or tears, the condition is called brachial plexus palsy. Erb’s palsy is the most common brachial plexus palsy and involves the upper nerves in the plexus. The most common types of injuries that occur with Erb’s Palsy are avulsion, rupture, neuroma, and neurapraxia. An avulsion is the most common injury and occurs when the nerve tears away from the spine. A rupture occurs when the nerve is torn but not from the spine. A neuroma is when a nerve tares but heals and leaves a scar on the tissue; this scar tissue then puts continued pressure on the injured nerve and keeps it from conducting signals to the muscles. Neurapraxia takes place when a nerve is stretched, not torn, and is the most common type of brachial plexus injury.

If you believe that your child is showing signs of either cerebral palsy or Erb’s palsy, it is important to contact your doctor or nurse or even see a specialist.

Unfortunately, medical malpractice can result in several other types of birth injuries as well, including:

  • Brain damage- physical injury to the brain during the birthing process
  • Hypoxic-ischemic encephalopathy- when the brain does not receive enough blood flow or oxygen for an allotted amount of time
  • Intrauterine fetal demise- the death of a baby in the uterus (also known as “stillbirth”)
  • Kernicterus- a type of brain damage that results from high levels of bilirubin in a baby’s blood and can lead to cerebral palsy and hearing loss
  • Caput Succedaneum- swelling of a newborn’s scalp, typically the result of pressures on the baby’s head during a difficult/long-lasting head-first delivery
  • Newborn cephalohematoma- bleeding under the baby’s scalp that can result from vacuum extraction
  • Newborn jaundice- yellowing of baby’s skin and eyes and occurs when babies have a high level of bilirubin
  • Shoulder dystocia- one or both of a baby’s shoulders get stuck in the mother’s pelvis during childbirth/labor
  • Spinal cord injury- can occur when doctors strain an infant’s neck by pulling, twisting, or using tools to remove the baby from the mother
  • Wrongful death- baby and/or mother die during childbirth due to the negligence of a medical professional
  • & more

Symptoms of Birth Injuries

If you believe your child has suffered from any of the above birth injuries but are not certain, there are certain physical and neurological symptoms to look for. Those include:

  • Arching of neck and body
  • Deafness or blindness
  • Issues communicating
  • Excessive sleepiness
  • Failure to meet development milestones (crawling, sitting, or standing)
  • Difficulties with feeding
  • Piercing, loud crying
  • Seizures
  • Swelling or soft spots on the head
  • Stiff muscles
  • Inability to move one’s side of the body 

The main cause of birth injury malpractice is the careless medical errors made by health professionals before, during, or after childbirth. Doctors, nurses, and any other medical professionals should know how to adequately handle difficult or complicated childbirth. However, there are instances where some healthcare professionals do not perform the expected standard of care, and their negligent mistakes lead to serious injury or even death. Some of the actions that medical professionals can perform that be considered birth injury medical malpractice include:

  • Failure to identify risk factors during pregnancy
  • Excessively pulling on the baby’s head/shoulders/arms
  • Failure to diagnose a maternal infection
  • Failure to order necessary tests before delivery
  • Failure to perform a C-section
  • Failure to recognize fetal distress/lack of oxygen
  • Improper use of forceps or vacuum delivery
  • Incorrectly diagnosing a life-threatening birth trauma as something not as serious
  • Prescribing the mother medications that can harm the unborn baby
  • Lack of aftercare for the mother or child

A mother can also suffer from life-long injuries sustained during childbirth from medical negligence. The health issues a mother can face due to birth injury malpractice can include blood clots, diabetes, hemorrhage, pre-eclampsia, infections, uterine rupture, complications from anesthesia, and severe vaginal tears.

If you are showing any of the above symptoms and believe it is because of the negligent acts of a medical professional, contact The Cochran Firm today for a free, no-obligation initial consultation.

What Action Can I Take After a Birth Injury Occurs?

The injuries outlined above are not always the result of a medical professional’s negligence, meaning a doctor or nurse. When you are determining whether there is any legal liability, there is a four-step process you can follow within medical malpractice law.

The first step to take after a birth injury is establishing what the appropriate medical standard of care should have been versus the care you or your baby received that led to injuries. For example, if your acting medical professional was an obstetrician, the court would compare your obstetrician’s actions to those of a similarly qualified obstetrician in a setting that was similar to yours. Typically, the injured individual’s attorney will rely on a qualified medical expert to testify on your behalf as to what the proper standard of care should have been. The court will also take into consideration the medical information that was available to the doctor at the time of the injury. Courts rarely use hindsight to hold a healthcare professional accountable for something that they could not have sensibly known at the time of the injury.

After the appropriate standard of care is established, the medical professional’s actions will be measured against that standard. This is when a medical expert will take a more in-depth look at what was done during the labor and childbirth process and what would have been done by a similarly-skilled healthcare professional, based on all of the information that was available at that time.

Next, the court will decide whether they think the healthcare professional’s deviation from the standard of care was the legal reason for harm to the mother or her baby. An example of this would be if the acting medical professional did not recognize complications during vaginal childbirth and ordered a c-section. But the question is, did the doctor’s error lead to the baby being stillborn? If further investigation proves that the baby would have passed despite the doctor’s mistake, then there would be no legal causation, meaning no medical malpractice liability.

The last and final step will involve identifying and determining the injuries the mother and/or baby suffered and any other losses that resulted from the medical professional’s negligence. This will then determine the compensation awarded to the injured individual. Birth injury compensation can help cover assistive devices, emotional damages, loss of earnings, medications, special education programs, therapy, medical bills, transportation modifications, and more.

If you are thinking about taking legal action due to a birth injury caused by a medical professional’s negligence, contact an experienced medical malpractice attorney at The Cochran Firm today. Our attorneys have the knowledge, results, and relationships with medical experts to determine just how birth injuries really occurred. Contact us today for a free, no-obligation initial consultation.

Who Can I Take Action Against?

A birth injury medical malpractice claim is not only limited to the negligent actions of doctors but also nurses, healthcare facilities, pharmaceutical companies, anesthesiologists, and other providers that offer health care services.


Whether public or private, hospitals are another entity that you can take legal action against. When it comes to medical malpractice, hospitals can either be held directly liable for their own negligence or held “vicariously” liable for the negligence of the individuals they employ (vicarious liability refers to being held liable for the actions of another person).

When hiring its staff, hospitals must make any/all reasonable inquiries into an applicant’s background, including training, education, and licensing. If a hospital fails to inspect these inquiries regarding a medical professional they hire, it may be held liable under “corporate negligence” for the negligent supervision or retention if one of their employee’s negligence injuries a patient. A hospital may be held liable for negligence if it fails to investigate the credentials of an acting physician before allowing them privileges at the hospital (such as performing surgeries) or where they knew (or should have known) that the medical professional they hired was incompetent to treat patients at that hospital.

Hospitals are also required to have an adequate amount of nurses on duty at all times in order to maintain quality care to patients. If a hospital fails to do so, it can be held accountable for any injuries that a patient sustains due to the shortage of nurses. Another area of liability can arise when a hospital finds a private physician’s treatment plan to be short of the standard of care that should be given but fails to investigate the physician. 

Lastly, hospitals can be held liable for failing to protect a patient from harm, correctly performing clinical tests, keeping up-to-date medical records, and properly admitting and discharging patients. If a hospital fails to do any of the above things, it will most likely be held responsible for medical negligence.

Vicarious Liability

When an individual that a hospital employs medical negligence leads to injuring a patient, the hospital itself can be held vicariously liable under the legal doctrine of “respondeat superior.” This legal doctrine states that an employer can be held liable for the negligent actions of its employees if the employee was acting within the scope of their employment when the negligence occurred.

It’s important to note that some healthcare providers are considered independent contractors, meaning they are not hospital employees, and the doctrine of “respondeat superior” will not be applicable. This basically means that if a medical professional that is an independent contractor performs a negligent act while treating a patient in a hospital, that hospital cannot be held responsible for that doctor’s malpractice. But, the hospital can be held liable for its own negligent acts, like granting privileges to an unlicensed or incompetent medical professional. There are also some instances where a hospital can be held vicariously or directly liable for the actions of its independent contractors to operate emergency rooms or other medical facilities.

Pharmaceutical Companies

In some birth injury cases, a pharmaceutical manufacturer can be held legally liable when a drug causes a patient’s injuries, but only when the manufacturer failed to warn correct personnel of the side effects or dangers of the drug.

When providing warning of potential side effects or dangers, a pharmaceutical company’s main duty is to medical professionals. Generally speaking, this means that a pharmaceutical manufacturer will most likely not be held liable for a patient’s injuries as long as it holds up its duty of informing the physician of the side effects and risks associated with the drug. The only duty a pharmaceutical company has is to ensure that the drugs it produces will be reasonably safe when it is used as intended. In order to do this, the producer must do research for possible side effects and risks before it puts the drug on the market. If the pharmaceutical company fails to do so and does not warn medical professionals of the drug’s dangers, the drug then becomes “unreasonably dangerous” under product liability law, and the manufacturer may be held accountable for the failure to provide adequate warnings.

Keep in mind that the physician who prescribes a patient this medicine is considered a “learned intermediary.” This means that because of their extensive medical knowledge, and assuming they were warned of the potential side effects and risks from the manufacturer, they are in the best position to decide whether or not a certain drug or device is suitable for a patient. Therefore, a medical professional has the primary duty of warning a patient of those risks and side effects a medication or device has that they prescribe. 

If you are unsure of who may be responsible for a birth injury that you or a loved one has undergone, contact a medical malpractice attorney today to get answers to your questions. The experienced medical malpractice attorneys at The Cochran Firm are ready to help you navigate the complex legal process. Our tenacious attorneys are ready to fight for you and the compensation you deserve during this trying time.  

Why Choose The Cochran Firm

Johnnie Cochran had long dreamed of creating a national law firm of men and women from all races, religions, creeds, and backgrounds to show how well we could all work together to make the world a better place. When Mr. Cochran started The Cochran Firm, his mission was “a journey to justice.” Today, with more than 35 offices across more than 20 states, the attorneys at The Cochran Firm work every day to fulfill that dream and continue that mission by working for our clients with the same work ethic and dedication to justice exemplified by Mr. Johnnie Cochran himself.

The Cochran Firm is a diverse group of highly skilled and experienced lawyers that are dedicated to bringing high-quality representation to injured people and their families. Our experienced attorneys at The Cochran Firm are among the nation’s most recognized and successful attorneys in the country. When navigating through the legal process, you deserve to have an experienced attorney by your side. Our attorneys at The Cochran Firm know how to fight for you.

Here at The Cochran Firm, each of our attorneys is ready to help victims receive the maximum compensation and financial recovery for all of their pain and sufferings. Our attorneys work closely with each of our clients using pooled resources and their access to legal expertise to ensure the most effective legal representation available is provided.

You need the help of an experienced attorney who has proven successful results in other similar cases to guide you through the process and help you to receive the monetary damages you are entitled to under the law. The Cochran Firm’s results have been well documented and demonstrated both in the courtroom and at settlement conferences. At The Cochran Firm, we have the offices, the experience, the results, and the resources to aid clients throughout the United States.

If you’re looking for an experienced personal injury attorney to help you pursue justice for your birth injury, please contact our attorneys at The Cochran Firm today for your free, no-obligation initial consultation today. We serve the entire country with offices in many major U.S. cities.