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Birth injuries and defects are commonly used interchangeably, but in a legal claim they can result in very different outcomes
You have a brand-new baby.
Congrats!
You’re probably simultaneously exhilarated and exhausted... and that’s if your labor and delivery were perfect and the baby is healthy and thriving.
But what if you or your doctor have medical concerns about your baby?
That adds more stress around caring for a newborn, along with your own recovery from pregnancy, labor, and delivery.
You might be filled with questions like:
- What’s wrong?
- What’s the treatment?
- Is my baby going to be okay?
- How did this happen?
It’s also natural to wonder if there’s someone to blame. Some parents blame themselves (but shouldn’t) and others wonder if perhaps the doctor or hospital made a mistake.
If there was a mistake made, you could be entitled to compensation from a birth injury lawsuit, which is a type of medical malpractice.
If your baby suffered a birth injury, you might be able to make a claim for medical malpractice. If your baby has a birth defect, a successful claim is less likely. Continue reading to learn about the important legal distinctions between birth injuries and defects.
Birth-related medical malpractice
There are 3 types of birth-related medical malpractice lawsuits:
- Birth injury. The parent or baby is injured as a result of the doctor’s action (or inaction) during the process of pregnancy or birth.
- Wrongful birth. The parent would have chosen to terminate the pregnancy if they’d been informed of a birth defect.
- Wrongful pregnancy. The parent underwent sterilization procedures and then became pregnant if the doctor was negligent in performing the sterilization.
Birth defects
A birth defect is a problem resulting from your child’s DNA. In other words, it’s genetic. There’s nothing a parent or doctor can do to prevent a genetic defect, though in some cases they can be diagnosed and treated before birth.
| Common birth defects | |
|---|---|
| Anophthalmia/microphthalmia | Baby is born without 1 or both eyes, or the eyes are small because they didn’t develop fully |
| Anotia/microtia | Birth defects of a baby’s ear |
| Cleft lip and cleft palate | The lip or mouth do not form properly |
| Congenital heart defects | A range of conditions that affect the structure and function of the baby’s heart |
| Craniosynostosis | The bones in the skull join together too early before the brain is fully formed, so as the brain grows the skull becomes misshapen |
| Diaphragmatic hernia | The baby is born with a hole in the diaphragm |
| Down syndrome | The baby is born with an extra chromosome |
| Esophageal atresia | Part of the esophagus does not develop properly |
| Gastroschisis | The baby’s intestines are outside the body as a result of a defect in the abdominal wall |
| Hypospadias | A birth defect only in boys, in which the urethra has an abnormal opening anywhere from just below the end of the penis to the scrotum; this condition could be minor or severe |
| Microcephaly | The baby’s head is smaller than expected and there’s a possibility that their brain might not have developed properly |
| Muscular dystrophy | This group of genetic disorders results in muscle weakness over time |
| Neural tube defects | These are severe defects of the brain and spine |
| Omphalocele | The abdominal wall is defective, so the intestines, liver, or other organs are outside the belly through the belly button |
| Upper and lower limb reduction defects | Part of or the entire arm or leg fails to completely form during pregnancy and the baby is born with the limb smaller than normal size or missing |
(source)
If your baby is born with 1 of these or another genetic condition, it’s possible that a doctor could fail to detect the problem, but the doctor did not cause the problem.
Some birth defects are detected early in pregnancy through ultrasound, blood testing, and other routine diagnostics. If your doctor suspects that there might be a problem, they will likely order additional testing.
There are 3 reasons why this type of prenatal testing is important.
- If a defect is discovered early enough, you might have the option to terminate the pregnancy.
- Some birth defects can be treated or corrected prior to birth.
- If you and your doctor are aware of the baby’s condition, you can be prepared for immediate treatment when the baby is born, and for ongoing care and support if necessary.
If a doctor is aware that a patient is pregnant and prescribes a medication that’s not safe in pregnancy, or prescribes an incorrect dose of a medication that causes birth defects, this could be considered a birth injury and the doctor can be liable for malpractice.
Is failure to detect a birth defect medical malpractice?
It could be malpractice to fail to detect and inform the parent of a birth defect. A doctor is expected to care for a patient to the best of their ability and with all available resources. The doctor must conduct the proper screening tests and interpret the results accurately in order to assess the baby’s overall health.
If a doctor’s failure to detect or diagnose a defect results in a lack of immediate treatment, which causes further or more severe injury to the baby, that would constitute medical malpractice.
Along those same lines, if a condition is detected early in the pregnancy but the parent isn’t informed in time to make a decision about whether to terminate the pregnancy, that could also be negligence. In that situation, the doctor might have failed to properly care for the parent — who is also their patient — and the baby’s birth and quality of life could be a breach of the doctor’s duty.
Birth injuries
A birth injury is a preventable condition that results from something that happened during the process of delivering the baby.
The most common causes of birth injuries include:
- Pulling or twisting the infant during delivery
- Miscalculating the size of the fetus
- Premature or post-mature delivery because of improper dating
- Rh incompatibility
- Failure to provide oxygen to a newborn if needed
- Deliveries using forceps or vacuum extraction
- Failure to perform an emergency cesarean section
- Failure to detect or monitor distress or fetal heartbeat
- Incorrect medication or dosage to the mother during pregnancy or labor
10 most common birth injuries
- Brachial Plexus Palsy (Erb’s Palsy)
- Bone fractures
- Cephalohematoma
- Caput succedaneum
- Perinatal asphyxia
- Intracranial hemorrhage
- Subconjunctival hemorrhage
- Facial paralysis
- Spinal cord injuries
- Cerebral palsy
These conditions can result in decreased strength, stamina, and nerve sensations; cognitive or emotional impairments or other psychological problems; failure to thrive and grow; osteoarthritis and other joint dysfunction.
Elements of birth-related medical malpractice
There are 3 elements that must be present in order to make a claim for medical malpractice:
- The provider was negligent. “Negligence” in a medical malpractice claim refers to violating the standard of care. The medical profession has certain standards that are recognized and accepted as reasonable, according to health care professionals under similar circumstances.A physician or medical provider is required to administer care according to the standards that would be reasonable according to their training, specialty, and community. In short, did the physician act as an equally trained doctor would have in a similar circumstance?
- The negligence caused the injury. Violating a standard of care, alone, is not malpractice. In any personal injury claim — medical malpractice included — there must be an actual injury that was caused by the person’s negligence. You need to prove that the negligence was the actual cause of your injury or condition.
- There are financial damages. The patient (or the parent on behalf of a child patient) must show that the injury involves disability, lost income, extreme pain and suffering, hardship, or significant medical expenses.
Common types of medical malpractice in birth injury cases
Medical malpractice is when a medical professional or facility causes injury to you or your baby. This might include:
- Failure to diagnose a condition or an incorrect diagnosis
- Misreading or misunderstanding lab results
- Conducting an unnecessary surgery
- Making a surgical or medical error
- Giving improper medication or dosage
- Providing incomplete or poor follow-up care
- Prematurely discharging you from care
What to do if your child is born with a medical condition
If there are medical concerns immediately after your baby is born (or if medical conditions develop later in their childhood), you should seek the advice of a doctor who can determine whether the condition is the result of a birth defect or a birth injury.
If it’s a birth defect, then you likely cannot file a medical malpractice claim because it was not caused by the doctor’s negligence. The exception might be if the condition is related to a medication that was prescribed during your pregnancy, or if it’s something that should’ve been detected as part of routine pregnancy diagnostics. Not every condition is able to be detected in utero.
Some birth defects are undetectable until the baby is born or, in some cases, when the child is older. There are even circumstances when an adult is diagnosed with a medical condition that is related to a birth defect, but they don’t affect the patient until far into adulthood.
If your baby suffers a birth injury, you might consider whether it’s the result of medical malpractice. In order to begin the process, you should seek the opinion of a different physician (someone separate from the practice or hospital that managed your baby’s birth and your pregnancy).
You should also keep records of every condition, treatment, medication, procedure, and conversation you have with your obstetrician and any pediatric specialists or physicians. These records can be very important if you need evidence of malpractice.
You also should consult a birth injury medical malpractice lawyer near you. Yes, these cases are complex. But if your baby is a victim of a doctor’s negligence, you (and your baby) deserve to be compensated for those mistakes. Your baby could be left with extensive medical treatments or a lifelong condition that requires ongoing care, all of which add up to financial costs.
These additional resources can help you to handle a birth injury:
- How to find the best medical malpractice attorney for your case
- Resources to help you hire the best lawyer
- The complete guide to medical injury lawsuits
- What to do if you suspect medical malpractice
See our guide Choosing a personal injury attorney.