Medical Malpractice During Childbirth: A Legal Overview

Negligence during delivery is one of the leading drivers of medical malpractice lawsuits. Start here to learn about treatment errors related to childbirth and the legal issues.

When an injury occurs to an unborn baby and/or to the mother during labor or the delivery process, in many cases the harm may have been unavoidable under the circumstances. In other situations, the course of treatment chosen by the doctor may have been medically inappropriate, or the physician may have failed to use proper skill and care before or during childbirth. In this article, we'll focus on preventable injuries that occur during childbirth, and what a birth-related medical malpractice case might look like in these situations.

Delivery Injuries

Childbirth-related injuries can be incurred by the mother or by the newborn baby. In this section, we'll take a closer look at some of the more common injuries that affect newborns.

Caput Succedaneum

Caput succedaneum is the swelling of a newborn’s scalp, typically caused by pressures on the baby’s head during a difficult or prolonged head-first delivery, or due to a vacuum extraction procedure. Visual bruising sometimes accompanies the swelling, but the condition usually abates within a few days of childbirth.


Cephalohematoma is another type of birth injury that can be the result of vacuum extraction. Cephalohematoma occurs when blood collects between the skin and the cranial bone. This condition can be a precursor to jaundice, but it usually goes away on its own within a few weeks to three months.

Erb’s Palsy

Brachial plexus birth palsy (Erb’s Palsy) is a nerve-related injury that can occur if the baby's neck or shoulder is stretched too far during delivery. It affects one to two out of every 1,000 babies, according to the American Academy of Orthopaedic Surgeons. The condition results from damage to a cluster of nerves near the neck, causing weakness, numbness, and loss of motion in the arms of a newborn. Most babies will recover feeling and movement in the arm that is affected, but there are gradations of severity when it comes to Erb’s Palsy. Some infants may need to undergo physical therapy, and surgery may be necessary if little or no improvement is seen within three to six months.

Hypoxic-Ischemic Encephalopathy

Hypoxic-Ischemic Encephalopathy (HIE) is a condition that occurs when the baby's brain does not receive an adequate flow of oxygen. The result can be the death of brain cells, brain damage, developmental problems, epilepsy, cerebral palsy, and even death if the condition is not abated.

Birth Fractures

The most common bone fractures that can occur to a newborn during delivery are to the clavicle or collarbone. In some cases, fractures are unavoidable, but they can also occur where the doctor had a reasonable opportunity to spot probable complications, and a C-section delivery would have been the appropriate course of treatment.

Subconjunctival Hemorrhage

Subconjunctival hemorrhage is a birth-related injury that causes small blood vessels in a baby’s eye to rupture. It usually appears as a small red patch on the white of the eye, and is caused by different pressures placed on the baby’s body during delivery. Typically, there is no permanent damage to the child’s eyes. This birth injury is generally resolved without intervention or complication after one to two weeks.

When Do Birth Injuries Lead to Legal Action?

It’s very possible that the doctor did something -- or failed to do something -- during the birth process, and that conduct amounted to medical malpractice. But it’s not as simple as that. The results alone (a baby with a birth-related injury) don’t support a conclusion that the doctor committed birth-related medical malpractice.

In every medical malpractice case, it’s first necessary to establish the appropriate level of care under the circumstances - the degree of care and skill of the average health care provider who practices the same specialty, taking into account the medical knowledge that is available to the physician in that particular situation. This is a legal concept known as the Medical Standard of Care.

After you’ve shown what a similarly-skilled care provider would have done under the circumstances, you need to show how that standard was breached --in other words, what did the defendant actually do (or not do) that fell short of the benchmark?

In some traumatic childbirth scenarios, fast action is required on the part of the doctor and especially in cases where the health of the newborn or the mother is in danger. A birth injury may be considered a practical (or even necessary) risk, if the circumstances of the situation call for drastic measures. But obviously, in cases where no complications exist and labor is proceeding normally, a doctor may well be deemed negligent if the baby ends up with a serious physical injury.

Alternatively, if a quick response to a dangerous situation is necessary, and the doctor fails to act, that may also be considered medical negligence, and the medical professional would be on the legal hook for any resulting injuries. This is often the case when a baby is in danger - perhaps deprived of oxygen - in the womb, and the medical staff fails to execute a C-section in a reasonable amount of time. If oxygen deprivation - hypoxia (too little oxygen) or anoxia (no oxygen) - leads to brain damage in the newborn, the medical staff could be liable in a malpractice lawsuit.

Birth Injuries Resulting in Fetal Death

A childbirth injury that results in fetal death may give rise to a medical malpractice claim if the treating physician failed to provide the level of a care of a reasonably skilled and knowledgeable healthcare professional under the circumstances.

These cases are usually filed as wrongful death cases. In some states, a wrongful death action can only be brought where the baby died during or soon after the birth.   A fetus that dies in utero is often not considered separate from the mother, although this is obviously a complex question that will depend on the unique circumstances of each case, not to mention state law.

This issue typically arises in one of two ways: (1) the fetus dies before or during childbirth because the mother also lost her life, or (2) the mother survives but the fetus sustains injuries which lead to its death either in utero or at the time of delivery.   In these situations, the question arises whether there is a distinct claim for the wrongful death of the fetus -- separate from any claim involving harm to the mother. In such emotionally-charged (not to mention legally and medically complex) cases, it’s best to discuss your situation with an experienced medical malpractice attorney.

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