Birth Injury FAQs

What are some common birth injuries?

Birth injury, or birth trauma, is physical damage to the baby’s body that occurs during delivery or birth of soon after birth. Some common injuries include cerebral palsy, brachial plexus injury and profound brain injury. Birth injuries are not the same as birth defects.

Birth defects are acts of nature that, in many cases, cannot be prevented. Common birth defects include Down syndrome, cleft lip, spina bifida and reduction or deformity of a limb.

In contrast, some common birth injuries include:

• Cerebral palsy, a group of disorders that affect a person’s ability to move and maintain balance and posture. Cerebral palsy is the most common motor disability among children. Lack of oxygen or head trauma during birth, or an infection that develops soon after birth, may cause cerebral palsy.
• Brachial plexus injury (Erb’s palsy, Klumpke’s palsy) is a loss of function in the shoulder, arms, hands and fingers. It is caused by trauma to a group of nerves in the shoulder during delivery.
• Profound brain injury. If the brain does get enough oxygen during birth the child can suffer brain damage. The more complete the oxygen deprivation, the more severe the damage.
• Compromised function of the lungs, vision or other organs

Stillbirth or neonatal death.

Who can be held responsible for my child’s birth injury?

If a birth injury has been caused by an error on the part of a medical professional, the parents may be entitled to compensation on behalf of their child. Financial compensation can help the family with expensive, potentially continual medical care that the injured child may require.

Attending obstetricians, obstetric nurses, technicians or other medical personnel may be liable for the losses your child and you face due to your child’s medical problems, physical and cognitive disabilities or other lasting harm. In some cases, the hospital or medical center where your child was born may be held liable.

A medical malpractice lawsuit can seek money to assist you with the costs associated with your child’s injury. You may also be entitled to damages for your mental anguish as parents. Your child may be entitled to future damages based on the life he or she should have had but will not.

We just recently received a cerebral palsy diagnosis for our toddler. Is it too late to file a birth injury lawsuit?

It is probably not too late for you to pursue a legal claim. New York has a statute of limitations on medical malpractice lawsuits, which means there is a deadline for filing a lawsuit over a birth injury.

The discovery rule permits some malpractice suits to be filed within a certain period of time after the injury is discovered, or reasonably should have been discovered. The statute of limitations can be as much as 10 years, however a notice of claim may need to be filed within 90 days, otherwise you may have to ask for a judges permission.

Cerebral palsy is commonly diagnosed sometime after a child’s birth, such as when the child experiences delays in reaching motor skills milestones such as pushing up on arms, sitting up alone or crawling.

Birth injury lawsuits are complicated and can take a long time to develop. This and the statute of limitations are good reasons to contact a medical malpractice attorney experienced in New York as soon as you suspect your child has suffered a birth injury.

What can kind of compensation can we expect through a birth injury lawsuit?

Victims of birth injuries caused by medical malpractice may be eligible for compensatory damages. This could include money to help pay for:

• Medical bills (past, current and future), such as those required for surgery, physical therapy, medical equipment and medications.
• Nursing care or specialized day care.
• Private tutoring.
• Other accommodations.

Your child may also be eligible for the eventual cost of lost wages, lost earning capacity and future lost income, as well as for pain and suffering.

You may also be compensated for the lost parent-child relationship if your child’s injury has caused a significant mental disability. A malpractice lawsuit could also seek punitive damages if actions by the liable parties equate to gross negligence or reckless disregard for human life.

How can we afford a lawyer to pursue a birth injury lawsuit?

Your family can afford a Law Office of Cohen & Jaffe, LLP medical malpractice attorney because you will not pay us for our legal services unless and until we obtain compensation for you. We provide legal services on a contingency fee basis, which means our success in your case determines our fees.

The legal fees you pay will be based on an agreed-upon percentage of any settlement or court award we obtain for you.

Our legal services begin with a free consultation about your case. If we determine that we can help, you still will have no obligation to retain us for any further work and you owe us nothing.

We’re ready to have one of our experienced medical malpractice attorneys look at your case as soon as you are.

For a free claim evaluation and consultation, call us now or fill out our online contact form. We will respond promptly. We can arrange evening and weekend appointments, and we can come to you.

Will we have to go to court as part of a birth injury lawsuit?

Most medical malpractice claims are settled out of court through negotiations. It’s only when insurers refuse to provide an appropriate settlement that a case must go to court.

The medical malpractice attorneys at the Law Office of Cohen & Jaffe, LLP thoroughly prepare cases before we enter into negotiations with the liable parties. Each case is different, so we cannot guarantee how your case will progress, but if we cannot negotiate a settlement, we will fully prepare you and your case if we have to go to court.

How do birth injuries typically happen?

Many birth injuries are caused by obstetrical trauma during vaginal delivery conducted with instruments. In plain language, this occurs when a baby assumes an unnatural position prior to birth and the doctor (obstetrician) uses forceps, suction or other medical instruments with excessive force during delivery of the infant. This can cause trauma such as a broken collarbone, head injury, shoulder injury (brachial plexus injury), bruising or lacerations.

Oxygen deprivation is another major cause of birth injuries. This can result in brain damage, including mental retardation or cerebral palsy. Some common causes of oxygen deprivation include:

• Compression or twisting that blocks the umbilical cord.
• The umbilical cord becoming wrapped around the baby’s neck.
• Leaving the baby in the birth canal too long,
• Failure to recognize that the baby is in distress and perform a Caesarean section.

The baby’s oxygen level is one of many factors that should be constantly monitored during labor and birth. Failure to recognize a low oxygen level and take appropriate action could amount to medical malpractice if the baby suffers harm.

We have only recently received a cerebral palsy diagnosis for our toddler. Is it too late to file a birth injury lawsuit?

It is probably not too late for you to pursue a legal claim. But New York does have a statute of limitations on medical malpractice lawsuits, which means there is a deadline for filing a lawsuit over a birth injury.

Most medical malpractice claims must be filed within 30 months of the date of the act resulting in the injury. However, the discovery rule permits some malpractice suits to be filed within a certain period of time after the injury is discovered, or reasonably should have been discovered.

Cerebral palsy is commonly diagnosed sometime after a child’s birth, such as when the child experiences delays in reaching motor skills milestones like pushing up on arms, sitting up alone and crawling. Here is some information from the Mayo Clinic about diagnosing cerebral palsy.

But you should not wait to contact an attorney once you have discovered a birth injury. Medical malpractice lawsuits are complicated and can take a long time to develop. Preparing a case requires gathering medical records and having them reviewed by medical experts. If there’s reason to move forward, each medical professional involved in the suspected error or negligence must be interviewed.

The complexity of developing a lawsuit and the statute of limitations are good reasons to contact a medical malpractice attorney experienced in New York as soon as you suspect your child has suffered a birth injury.

What can kind of compensation can we expect to obtain through a birth injury lawsuit?

Victims of birth injuries caused by medical malpractice may be eligible for compensatory damages in a birth injury lawsuit.

This could include money to help pay for:

• Medical bills (past, current and future), such as is required for surgery, physical therapy, medical equipment or medications.
• Nursing care or specialized daycare.
• Private tutoring.
• Other accommodations.

Your child may also be eligible for eventual costs of lost wages, lost earning capacity and future lost income, as well as compensation for pain and suffering.

You might also be compensated for the lost parent-child relationship if your child’s injury has caused a significant mental disability. A malpractice lawsuit may also seek punitive damages if actions by the liable parties equate to gross negligence or reckless disregard for human life.

Here is more information about pursuing a medical malpractice claim with the help of Law Office of Cohen & Jaffe, LLP.