Can I File a Birth Injury Medical Malpractice Lawsuit?

An injury to a mother or her child during pregnancy or childbirth can lead to a medical malpractice lawsuit, but only if the health care provider acted in a reckless or negligent manner.

Birth injuries lead to some of the most emotionally-charged medical malpractice cases, and account for some of the highest damages awards when a lawsuit goes to trial.

It's easy to understand why a jury would want to offer substantial compensation when a preventable mistake leads to an injury to mother or child. But it's important to note that harm during the labor/delivery process does not automatically mean malpractice was committed. In this article, we'll explain when a birth injury might form the basis of a viable medical malpractice claim.

What Is Medical Malpractice?

Just because an unintended event occurs during childbirth, that doesn't mean medical malpractice also occurred. A health care professional commits medical negligence when they provide treatment that falls short of the applicable medical standard of care, and a patient suffers harm as a result of that sub-standard care. Learn more about what you need to prove in a medical malpractice case.

What Is a Birth Injury?

Birth injuries can affect mothers and their unborn or recently-born children. Common birth injuries to mothers include:

  • uterine rupture
  • infection
  • uncontrolled bleeding
  • leaving a medical instrument or disposable medical supply inside the mother following a procedure, and
  • anesthesia complications.

Birth injuries to children can include:

  • bone fractures
  • soft tissue and skin injuries
  • death
  • brain damage due to lack of oxygen
  • nerve damage, and
  • birth defects.

The causes of some of these birth injuries remain something of a mystery, or can be attributed to something other than a health care provider's mistake. But some can result from the negligent or reckless conduct of a physician, obstetrician, gynecologist, midwife, nurse, or other medical professional.

Examples of Birth Injuries That Could Be Caused by Malpractice


A doctor's failure to properly diagnose a pregnant patient or her fetus can lead to a variety of birth injuries to mother or child. Potentially misdiagnosed conditions related to pregnancy and labor/delivery include:

  • placental abruption: this occurs when the placenta separates from the mother's uterus before the mother can give birth. It can result in internal bleeding, premature birth, brain damage to the child, or death to the child or mother.
  • pregnancy: when a mother is pregnant, but her doctor assures her she is not, she may expose herself to substances (including certain medications, alcohol, and tobacco products) that can cause birth defects.
  • preeclampsia: a condition causing high blood pressure, preeclampsia can lead to pregnancy complications such as fetal growth restriction, placental abruption, stroke, brain injuries, and seizures.

Errors During Delivery

When the pregnancy itself goes perfectly smoothly, birth injuries can still occur during the delivery process. These injuries can take place during a caesarian section (C-section) or vaginal birth.

During a C-section, a child could become injured when there is a cut or impact from a doctor's surgical instrument. There's also the possibility that a doctor leaves a medical instrument inside the mother after the C-section. Finally, the doctor or nurse might not properly monitor the vital signs of the mother or child and fail to recognize that either is in distress and immediate action is necessary.

Birth injuries can also occur during vaginal births. For instance, to assist in the delivery, a doctor may use forceps or a vacuum to help pull on the baby's head, making it easier for the baby to come out. But when done improperly, either method can cause severe injuries to the child. Forceps can result in permanent disfigurement or nerve damage to the child's shoulder. Incorrect use of a vacuum can cause subgaleal hemorrhage, which if left untreated, can lead to shock, death, anemia, or seizures.

Who Can Bring Suit for Birth Injuries?

Generally speaking, the person injured will be the plaintiff in a medical malpractice lawsuit over birth injuries. In cases where the plaintiff is the child, it will probably be the child's parents or other legal guardian that brings suit on the child's behalf.

This is usually a straightforward process, but things aren't as simple when the birth injury results in the death of the child. Things get even more complicated when the medical malpractice results in a stillbirth. Stillbirth means that the child or fetus dies before being born, but after at least 20 weeks of gestation.

With one prominent study showing that almost one-fourth of stillbirths may be preventable, it's not hard to see how thousands of stillbirths each year could be the result of medical malpractice.

Most states will allow parents to bring a wrongful death cause of action against someone else who is responsible for the death of their unborn child. But states differ in the legal relief they allow and the circumstances in which parents can bring the wrongful death lawsuit.

For example, some states will place limits on the types and amounts of damages the parents can recover. Other states will permit a wrongful death stillborn lawsuit, but only if the child was of a certain gestational age.

Medical malpractice lawsuits are a challenge to win, and that's especially true in birth injury cases. If you're thinking of filing this kind of lawsuit, your best first step might be discussing your situation with a medical malpractice lawyer.

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