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Your Guide to Birth Injury & Medical Malpractice

Your Guide to Birth Injury & Medical Malpractice

Giving birth is always a life-changing experience. Unfortunately, this is not always a change for the better. While most childbirths are successful and do not involve any serious complications, there are many cases where the newborn sustains a birth injury. Such injuries are often the result of medical malpractice on the part of the doctor, nurse, or even the hospital itself.

Although some birth injuries are temporary and resolve themselves within a few days or weeks, in the most severe cases a child faces permanent physical or neurological damage. As the parent of such a child, you have a legal right to pursue a birth injury claim against the negligent healthcare providers whose actions put your newborn in this situation. Such claims frequently lead to substantial labor and delivery malpractice settlements, especially when a hospital or insurance company does not want to risk the negative publicity of a trial.

Common Birth Injuries and How They Occur

A birth injury can occur before, during, or immediately after the process of giving birth. Some birth injuries are the result of a condition involving the mother. With other birth injuries, it is the infant who has a condition. There can also be external factors unrelated to either a maternal or infant condition.

Here are just some of the more common birth injuries that lead to permanent injuries in an infant:

Anoxia and Hypoxia

This refers to an absence of oxygen or reduced oxygen in the brain, respectively. If there is any disruption to the flow of oxygen to an infant’s brain during the birth process, it can lead to death or permanent developmental disabilities. Anoxia and hypoxia often occur when the umbilical cord is wrapped around the infant’s neck or the airway is otherwise blocked.

Brachial Plexus Injuries

Sometimes an infant’s shoulders get stuck behind the mother’s pelvic bone during delivery. A well-trained doctor can perform various procedures to address this complication and safely deliver the child. But if the doctor performs the procedure incorrectly, it can lead to what is known as a brachial plexus injury, which refers to a tearing of the nerves connected to the spinal cord, which can impair function in either or both of the infant’s arms.

Cerebral Palsy

Any physical injury to the skull during birth can lead to cerebral palsy, which can permanently impair a child’s development, movement, and other physical skills.

Cesarean Sections

Several complications can arise during birth that makes a Cesarean delivery safer than a traditional birth canal delivery. If a doctor orders a Cesarean section too late or otherwise fails to perform one when it is medically necessary, that can be classified as malpractice if the infant is born with any injuries.


If the delivery team improperly uses forceps or suction, it can lead to the infant sustaining a bone fracture.


As with any medical procedure, hospitals must maintain a sterile environment during the delivery process. Failure to do so can lead the child to develop a potentially deadly infection during birth.

Large Babies

Large babies–generally an infant that weighs more than 8 pounds and 13 ounces at birth–are especially susceptible to birth injuries, meaning medical staff must take extra care during the delivery process.

Premature Babies

If an infant is delivered before 37 weeks of gestation they are considered a premature baby, which means they are often underdeveloped and may require several weeks of monitoring and care by hospital staff to prevent postnatal complications.

Prenatal Care

An OB-GYN who gives improper medical advice–or prescribes the wrong medication–to an expecting mother may be responsible if that leads to complications during birth.

What Compensation Is My Child Entitled to for a Birth Injury?

Not every birth injury is legally considered medical malpractice. In New York, the standard for malpractice is whether or not a doctor or health care provider breached the appropriate standard of care for their profession. A plaintiff must further prove that this breach of the standard of care caused the birth injury.

But when a birth injury can be proven to be the result of medical malpractice, a New York jury can order a doctor or hospital to pay significant damages. There are three broad categories of damages available in medical malpractice cases. The first is compensatory damages, which reflect the demonstrable financial losses suffered by the victim. This is often quite substantial in birth injury cases, as the child may require lifetime medical care and be unable to earn a living as an adult. A jury can also award non-economic damages, which compensate the child for their pain and suffering and other intangible losses. Unlike most states, New York does not impose any limit or “cap” on the amount of non-economic damages that may be awarded in a birth injury case.

Finally, in some cases, a jury may award punitive damages, which are designed to punish or deter especially reckless or egregious misconduct. Most birth injury claims will not involve punitive damages, as they require proof that goes beyond simple negligence. The plaintiff must show that the defendant acted willfully or with a “wanton and reckless disregard” for the rights of their patients.

Contact a New York Birth Injury Lawyer Today

If you know or suspect that your child has suffered a birth injury, it is important to act quickly to assert your child’s legal rights. All civil lawsuits in New York have a statute of limitations, i.e., a deadline to file a claim. And the specific rules governing the limitations period for birth injury claims can get quite complicated.

New York has a 30-month (or two-and-a-half-year) statute of limitations in medical malpractice cases. Normally, this means 30 months from when the act of medical malpractice occurred. But even if your child is older than 30 months, you may still have time to file a claim. This is because the statute of limitations can be tolled–suspended–for a certain amount of time while your child is still a minor.

Again, it’s important to act quickly. Medical malpractice cases involve a variety of complex legal and factual issues, and it is in the best interest of you and your child to contact an experienced New York birth injury lawyer as soon as possible. Call the offices of Silberstein, Awad & Miklos, P.C., today to schedule a free consultation.