Main Menu

Birth Injury FAQs

Articles & Publications

March 7, 2022

What is a birth injury?

A birth injury is an injury to a mother or baby that occurs before, during, or shortly after childbirth. Serious birth injuries are rare, but when they occur, they can cause devastating effects that may require a lifetime of treatment. If these injuries were due to the medical malpractice of a doctor, nurse midwife, nurse, or any other healthcare provider, the child and/or their family may be able to bring a lawsuit.

What is a birth injury to a mother?

Separate from their babies, mothers can suffer serious injuries during pregnancy and childbirth. These injuries can include untreated preeclampsia, uterine rupture, infection, complications from a cesarean section, complications from anesthesia, failure to deliver all fetal tissue (called retained products of conception), and uncontrolled bleeding. These may not only cause pain and injury to the mother, but they could also prevent the ability to have future children or increase risks of harm in future pregnancies. In situations where the medical malpractice of a medical provider caused a preventable injury to a mother during pregnancy or childbirth, she and her family may have a claim for medical malpractice.

What causes a birth injury?

Sometimes a birth injury may be due to the natural forces of labor and delivery. However, sometimes they are caused by medical malpractice committed by a doctor, nurse midwife, nurse, or other medical provider. 

Because the labor and delivery process, by its nature, places stress on both the mother and the baby, medical providers must be extremely diligent and careful when tending to the mother and baby. Although there are times when the baby and mother are injured through no fault of a medical provider, there are times when, unfortunately, the medical provider’s failure to provide appropriate medical care causes serious injury. 

Birth injuries can be caused by: 

  • Failing to monitor the mother and baby appropriately
  • Failing to deliver the baby in a timely manner
  • Failing to deliver the baby via cesarean section
  • Improper use of medications during labor and delivery
  • Improper care during the actual delivery
  • Improper resuscitation of the baby at birth
  • Improper care post-delivery (in the maternity ward or NICU)

Separately, in some cases, a baby may suffer prematurity-related issues, infection at birth, brain injuries due to a reduction or deprivation of oxygen, and physical deformities and disabilities due to medical negligence. Sometimes these injuries are predictable and, therefore, avoidable if the medical provider acts within the standard of care during a mother’s pregnancy. 

What are the most common birth injuries?

Although there are many types of injuries that babies can unfortunately suffer, two severe injuries that can result from negligence during pregnancy or childbirth include permanent brain injury due to oxygen reduction or deprivation, leading in some cases to cerebral palsy, or injuries to the baby’s arms or shoulders - called a brachial plexus injury or Erb’s palsy. 

What is a birth injury lawsuit?

If a medical provider was negligent, the injured patient may be able to bring a medical malpractice claim against them. 

To prove that a patient’s injuries were due to a medical professional’s medical negligence, the patient must prove that: 

  1. The medical provider owed a professional duty to the patient;
  2. The medical provider breached that duty (a breach of the standard of care);
  3. The patient’s injury was caused by that medical provider’s breach; and
  4. The patient suffered damages as a result of that breach.

In Delaware, even before a claim is filed, the injured party needs to retain a qualified medical expert who can support the claim. These experts will evaluate whether the failure to comply with the standard of care (also called a “breach” or “violation” of the standard of care), or the patient’s injuries that resulted, was due to medical negligence. Thus, to pursue a birth injury claim successfully, it is critical to hire attorneys who can retain competent and qualified experts. 

What is birth injury compensation?

A birth injury may cause life-long needs for the child and their family. Those needs may include significant costs for around-the-clock care. The injured party may also be entitled to compensation for emotional distress, lost wages (including lost future earning capacity), and medical expenses for treatment, procedures, and equipment. 

Compensation received from a medical malpractice claim can help the injured party and his or her family pay for future medical treatment to improve the quality of life for the child and their family. This may include future:

  • Nursing care
  • Physical therapy, occupational therapy, speech therapy
  • Medication
  • Mobility aids and adaptive equipment
  • Surgery
  • Special education costs
  • Other related expenses

What is the statute of limitations for filing a birth injury claim in Delaware?

A statute of limitations is a law that limits how long a person has to file a lawsuit. In Delaware, in most situations, an injured person has two years from the date of the medical provider’s negligence to file a medical malpractice claim. There are situations where the timeframe may be extended, but those are rare. To make sure your claim is filed timely, it is important to speak with an attorney as soon as possible. 

Why choose Morris James to represent you?

The lawyers of Morris James have been fighting for victims of negligence in Delaware since we opened our doors in 1932. We deal with lawyers and insurance companies so that you can focus on healing. Our birth injury attorneys, who represented healthcare providers for many years in medical malpractice cases, know the strategies used to defend healthcare providers and how to combat them. We will fiercely advocate for our clients, going to trial when necessary, to obtain the financial compensation that you and your family need to regain stability and security after a birth injury.

If you or your child have suffered a birth injury, we may be able to help. Our attorneys at Morris James are available to talk to you about your rights and the options that you have at this difficult time. Contact us online or call into one of our local Morris James offices in Delaware to find out more.

Back to Page