Can You Sue a Hospital for Birth Injury?

By: James P. Goslee, Esq.

Nov 10, 2023

Gorodenkoff –

Sometimes, a birth injury or birth defect is nobody’s fault. In these cases, genetics or bad luck combine to change a family’s life. However, when a baby’s or mother’s birth injury is the result of medical negligence, the doctor or facility may be legally liable. In these cases, a birth injury settlement can make a dramatic difference in the injured person’s standard of living.
Can you sue a hospital for birth injury negligence? What should you expect to happen if you do? The excitement of having a new baby and the fear of dealing with a catastrophic injury requires a lot of your energy. However, sometimes it can be worth the effort to bring a birth injury lawyer onto your team.

Understanding Birth Injuries

“Birth injury” is an umbrella term that includes a huge variety of conditions and complications. These injuries can impact the baby, the mother, or both. Every birth injury case is unique, which means that it would be impossible to describe every potential situation.

Common Birth Injuries

Some of the most common sources of a birth injury claim include:

  •         Brain injury or brain damage
  •         Skull fractures
  •         Hemorrhage
  •         Cerebral palsy
  •         Erb’s palsy
  •         Brachial plexus injury
  •         Spinal cord injury
  •         Hypoxia and hypoxic-ischemic encephalopathy
  •         Fractured bones

Symptoms of Birth Injuries

Because the spectrum of potential birth traumas are so broad, the list of potential symptoms is enormous. In the baby, common symptoms include bruising, muscle weakness, swelling, and cognitive and physical developmental issues. In the mother, common symptoms of birth trauma include perineal tears, pelvic floor damage, fractures, and infections.

Medical Errors Causing Birth Injuries

When medical malpractice is the root cause of a birth injury, it’s important to investigate filing a birth injury lawsuit as soon as the injury is identified. Not only are there statutes of limitations in place that define how long you have to sue, but the longer you wait, the harder it is to gather important evidence.  Often, the most critical evidence necessary to support a birth injury lawsuit can be found in the medical records. Most states require medical providers to maintain full and accurate medical records reflecting the care provided to a patient.  However, medical records don’t always include a full and accurate description of the care provided and record falsification, though rare, does occur.

Medical errors are more common in complicated births, such as cesarean sections and those where fetal distress occurs. Some other circumstances where birth injuries are more likely include:

  • Use of forceps or vacuum delivery
  • Severe maternal bleeding or tearing
  • Failure to switch from a vaginal birth to a C-section when fetal distress is a factor
  • Improper medical care, such as a medication mistake

In short, the more tasks a health care provider performs, the greater risk there is for a medical error to occur.

Suing Health Care Providers for Birth Injuries

If you suspect that a healthcare provider may be responsible for your child’s injury, you may qualify for medical malpractice damages. Suing doctors or hospitals is often considered a “last resort.” Still, when a medical error is at the heart of an injury, it can be the most effective way to ensure that your resultant medical bills and expenses are paid.

Hospitals, Doctors, and Providers

When you consult with a personal injury attorney about filing a birth injury lawsuit, the lawyers and medical experts on staff will determine the best course of action. It’s important to note that more than one party may be at fault. It’s possible to sue doctors, nurses, anesthesiologists, and even entire hospital systems for medical malpractice, negligence, or wrongful death.

Evidence to Support Your Claim

If you file any lawsuit, you will need to provide evidence that supports your claim. Each case is unique, but for birth injury cases, this generally includes:

  •         Prenatal and postnatal medical records
  •         Witness statements
  •         Expert testimony

Regardless of the nature of your case, you will need to prove that the hospital or medical provider deviated from their duty of care and that this deviation caused you or your child damages. Determining whether a healthcare provider is responsible for a birth injury can often require consulting with a medical expert and examining huge amounts of evidence, so it’s critical to get a medical malpractice lawyer on your side as soon as possible.

Timeline for a Birth Injury Lawsuit

Because every case is unique, a birth injury attorney is the only one who can give you a precise timeline for a specific lawsuit. However, there are a few universal things to keep in mind as you begin your journey.

First, every state has a statute of limitations on birth injury litigation. Usually, this restriction starts from the moment that the injury is discovered, but in some cases, it may be due to the date of the birth injury itself. Consulting with a birth injury attorney early can make a huge difference in your case.

You should also keep in mind the different types of medical malpractice lawsuits. A traditional medical malpractice claim involves non-fatal injuries, while wrongful death claims occur when a medical provider’s error has caused a person’s death.

Proving Medical Malpractice in a Birth Injury Case

Proving that your hospital or medical provider has breached their duty of care can be an uphill battle. The more evidence you can bring to the table, the better your chances of compensation.

Elements of Medical Malpractice

The definition of medical malpractice has four parts:

  •         The medical professional has to have a duty of care to the patient.
  •         They have to have deviated from the regular standard of care.
  •         This deviation needs to cause harm to the victim directly.
  •         The victim has to suffer measurable damages as a result.

Medical negligence has similar elements. The primary difference between negligence and malpractice is that negligence is unintentional, while malpractice occurs when a medical professional is aware of the potential consequences of their actions.

Evidence of Medical Malpractice

Proving that medical or hospital malpractice is what led to a birth injury requires evidence. An experienced medical malpractice attorney can help you sort out exactly what you need to provide. Proving medical errors generally requires multiple types of proof, which can include:

  •         The victim’s medical records
  •         Eyewitness testimony from medical providers and others
  •         Expert testimony from a third party
  •         Employment records proving where the damage occurred


Difficulty of Proving Medical Negligence Caused a Birth Injury

The defending party’s lawyers will vigorously defend birth injury lawsuits, which is another reason to hire an experienced birth injury lawyer early. Cerebral palsy litigation is particularly fraught, as it’s common for defendants to argue that the birth trauma is caused by multiple factors and that the plaintiffs are also liable.

In some cases, the defendant may argue that the case is the result of prematurity or a congenital birth defect, rather than an injury. Birth defects, as the name suggests, are present at birth. But birth injuries are sometimes resulted from medical negligence, rather than natural causes. An experienced birth injury lawyer will review medical records and consult with experts to determine if the birth trauma was caused by medical negligence rather than natural causes.

Pursuing Legal Help for Birth Injury Claims

If you have a medical malpractice case on your hands, you shouldn’t try to deal with it alone. A birth trauma law firm like CPR Law can provide invaluable help in the process.

Services Offered by Birth Injury Law Firms

A law firm provides more than just legal help as you file your birth injury lawsuit. Experienced legal professionals will coordinate with medical experts to truly understand your case and help you plan the best strategy as you make your claim.

The Birth Injury Claims Process

In personal injury law, every case is unique. However, the process follows the same basic steps. After you consult with your attorney, you will file the lawsuit together. In the next stage of the suit, both sides will gather evidence, including medical records and expert opinions. Once discovery is complete, a trial date will be set. Sometimes the parties will reach a financial settlement before trial. Otherwise, the case will be heard and decided by a jury.

Available Compensation

There are three types of compensation in personal injury lawsuits. Depending on the state you’re in, damage caps may exist.

  •         Economic damages: These include past and future medical expenses and other easily measurable amounts.
  •         Noneconomic damages: These compensate for pain and suffering, as well as other subjective damages like emotional distress.
  •         Punitive damages: These are meant to deter future negligence or malpractice, and unlike the other compensation forms, they aren’t awarded as compensation for a loss.

Consult with Cohen, Placitella & Roth

Our team of lawyers has earned a distinguished reputation for achieving life-changing outcomes by combining decades of experience, tenacity, and fresh strategic perspectives to each case we undertake. We champion and seek justice for our clients guided by a shared goal of doing what’s right and making a positive lasting impact on their lives.

Have you or a loved one experienced a birth injury? The law offices of Cohen, Placitella & Roth can help you with every step of the process. Contact us today at or reach out to us at (888) 560-7189.