Common Legal Questions Asked About Birth Injuries in Pennsylvania and New Jersey

Stewart L. Cohen, Esq.

Oct 5, 2023

Since 1973 our team of trial lawyers and experts has informed, counseled, and represented families seeking to understand their rights and the legal options available to ensure children who suffer birth injuries receive appropriate care and support.  Birth injuries do happen and are sometimes catastrophic.  Occasionally children suffer from cerebral palsy, intellectual or other serious disabilities due to a doctor or hospital error.  Families with children with disabilities often wonder whether birth injuries were due to medical mistakes.  And if so, whether their family may be entitled to compensation and benefits for the care the child will need over a lifetime.  We have represented families in Pennsylvania and New Jersey in this situation for decades.  This article aims to answer common questions families have regarding  birth injuries caused by negligence, empowering them with the knowledge needed to pursue justice and advocate on behalf of their injured child.

1. What is the difference between a birth injury and a birth defect?

The terms birth injury and a birth defect describe very different harms.  A birth injury generally refers to harm or damage that occurs to a newborn during the process of labor, delivery, or immediately after birth. These injuries can be caused by various factors, such  failure to manage prescriptions during pregnancy, the improper use of medical instruments during delivery, failing to monitor the baby’s health during the pregnancy and labor resulting in delayed decisions about delivering the baby and other complications of pregnancy and  during childbirth. We refer to birth  injuries as a condition that could have been prevented had the pregnancy or delivery been managed differently. If a mother or baby suffers injuries, the right to pursue legal action will depend on proving that the injuries could and should have been prevented had medical professionals followed the accepted standards of medical care.

On the other hand, a birth defect, also known as a congenital anomaly, is a physical or structural abnormality that is present at the time of birth. Birth defects can occur due to genetic factors, environmental exposures during pregnancy, or a combination of both. Unlike birth injuries which typically occur during the birthing process, birth defects are usually present before birth and can affect various parts of the body, such as the heart, limbs, or organs. Depending on the facts, families of children with birth defects may have grounds for negligence and strict liability claims against the responsible parties, such as the manufacturers and sellers of defective, toxic, and unsafe products and medications.

From a legal standpoint, the difference between birth injuries and birth defects is important because the legal claims associated with each may differ. Birth injury cases often involve allegations of medical malpractice, while birth defect cases may involve claims related to product liability or exposure to hazardous substances.

2. How long do you have the right to file a birth injury case in Philadelphia and throughout Pennsylvania?

You can bring a lawsuit to seek damages for personal injury in Philadelphia and Pennsylvania only if it is filed on time. The time to file a lawsuit is set by state law called the “statute of limitations.” If a claim is not brought within the statute of limitations, then all rights for the child and parents to ever bring a claim will be lost. Therefore, it is important that parents or legal guardians contact our office as soon as possible so that the cases can be assessed. To assess a claim our team of lawyers and experts needs to do a thorough investigation. This takes time.  It is essential to evaluate and investigate a potential claim as soon as possible, before memories fade, or evidence is destroyed or lost.

To properly calculate the statute of limitations expires (or “runs”), and to determine the date to use to determine when the statute starts (or begins to “run”),  as well as any exceptions that may apply under state law,  you need to carefully review all the facts in consultation with our experienced lawyers. However, here is a general summary of the law in Philadelphia and throughout Pennsylvania:

  • The Statute of Limitations for birth injury medical malpractice lawsuit in Pennsylvania for the minor child is 20 years from the date of their birth;
  • The Statute of Limitations for the birth injury medical malpractice for the parents of the minor child is 2 years from the date of the incident giving rise to the claim; and
  • The Statute of Limitations arising out of the wrongful death of the minor child is 2 years from the date of death.

3. How long do you have the right to file a birth injury case in New Jersey?

Although New Jersey law concerning birth injuries is similar in many respects to Pennsylvania law, the statute of limitations is markedly different in New Jersey.  The relevant statute of limitations for New Jersey birth injury is as follows

  • The Statute of Limitations for birth injury medical malpractice lawsuit for the minor child is 13 years (children born on or before July 7, 2004 have until age 20 to start a lawsuit for a birth injury).
  • The Statute of Limitations for the birth injury medical malpractice for the parents of the minor child is 13 years for damage suffered because of the malpractice to the minor child, and 2 years for the parent’s direct malpractice claims; and
  • The Statute of Limitations arising out of the wrongful death of the minor child are 2 years from the date of death.

4. What are some of the common causes of preventable birth injuries?

The basis for birth injuries lawsuits varies. There are many different types of injuries, disabilities and limitations caused by negligent medical care.  Some of the common causes include failure to monitor the baby’s vital signs and conditions during labor, delayed or incorrect diagnosis of maternal or fetal conditions, improper use of medical devices and technique during delivery and failure to perform a timely cesarean section when necessary. Each client and case are unique, and the special circumstances surrounding the birth injury will determine whether there is a cause for a lawsuit.

Our team of experienced birth injury lawyers and medical experts focus on the medicine and the evidence to determine whether: 1) the care was negligent; 2) the birth could and should have managed differently;  and 3) whether the negligent care caused the injuries. We focus on those medical conditions and procedures that threaten the life and health of the mother and the infant, such as cerebral palsy (CP), hypoxic Ischemic encephalopathy (HIE), brain damage, Cesarean delivery (C-section) errors, jaundice and kernicterus, shoulder dystocia, preeclampsia, and infections.

Our cases have involved the negligent conduct of numerous health care professionals, including obstetricians, maternal fetal specialists, midwives, and others. Sometimes our cases focus on the hospital or health system for lack of communication among the team caring for the patient, and violation of medical standards, policies and procedures designed and intended for patient safety to protect patients from the catastrophic damages caused by negligent care. Our experience in these cases covers the full playing field of medicine as it is now practiced in the United States, including enormous health systems, children’s hospitals,  community hospitals and small birth centers operated by midwives. Some of common causes of preventable birth injuries fall into the following categories:

  1. Failure to properly monitor the baby. The failure to recognize and appropriately respond to fetal distress during delivery can deprive the baby of oxygen causing the baby to suffer permanent brain injury with conditions like hypoxic ischemic encephalopathy (HIE) and cerebral palsy (CP).
  2. Failure to provide cooling therapy in cases where it is indicated may increase the risk of birth injuries or worsen the long-term neurological outcomes for the baby. Potential injury from hypoxic-ischemic encephalopathy (HIE) may be able to be treated with cooling therapy. Cooling therapy helps reduce the metabolic rate of the brain, which can protect it from further damage and improve the chances of a better outcome. While cooling the baby’s head is just one component of the overall cooling therapy, it is an essential part of the process. The cooling is usually achieved using special cooling caps or blankets that help lower the temperature of the baby’s head and body.
  3. Failure to diagnose and treat pre-eclampsia and infections in pregnancy can cause serious complications for both the infant and the mother.  In the case of preeclampsia, if left untreated, it can cause the mother to suffer seizures, organ damage, and even death. Preeclampsia can also restrict the baby’s growth and cause premature birth and other complications and brain damage.
  4. Failure to diagnose and treat kernicterus and jaundice can lead to catastrophic injuries in newborns including neurological damage, cognitive impairment, movement disorders, hearing loss, and behavioral and emotional issues. Early diagnose and appropriate treatment of jaundice are crucial to prevent the progression to kernicterus.
  5. Improper use of forceps during an instrument-assisted delivery can cause bleeding in a baby’s brain. Forceps are a medical instrument used to assist in the delivery of a baby, particularly when there are difficulties or risks involved. However, if not used correctly or with excessive force, forceps can lead to a range of complications, including neurological damage, developmental delays, cognitive impairments, and long-term disabilities.
  6. Negligent C-section procedures (such as improper suturing, failure to recognize previous uterine scars, or failing to monitor the uterine wall during the procedure) can lead to a uterine rupture, severe bleeding, harm to the mother, and the infant may be deprived of oxygen and nutrients and serious complications including brain damage. Where there are previous uterine scars from a prior C-section or other uterine surgeries, there is an increased risk of uterine rupture during subsequent pregnancies, which require appropriate management.

Medical Malpractice causing Birth Injuries: How to Find Help

The law offices of Cohen, Placitella & Roth are proud to represent every one of our clients with tenacity, experience, and fresh strategic perspectives. Our goal is to seek justice for you and the people you hold most dear. If you or a loved one has suffered personal injury or wrongful death due to medical malpractice, you should seek legal help at once. Our team of lawyers and medical professionals is suited to handle anything from medical negligence to birth injury.

If you have a question, or would like to consult with us, please don’t hesitate to contact us at (888) 572-7388 or fill out our online contact form.