Can I File a Lawsuit Against a Doctor for a Birth Injury?

Medical Malpractice and Birth Injury 

Birth injury lawsuits fall under the category of medical malpractice. As per the New York City Bar, “Medical malpractice (or medical negligence) occurs when a doctor, health care professional, hospital or other health care facility fails to care for someone in accordance with the accepted standards of the medical profession and the person is injured, becomes ill or a condition or illness worsens as a result.”  

Note that birth injury and birth defects are not synonymous. The latter, such as cardiac defects, are genetic and usually detected during prenatal testing. A mother using certain drugs or consuming alcohol during pregnancy can also lead to birth defects.   

New York uses a pure comparative negligence standard for liability. That means a plaintiff can still recover damages if a jury determines they are less than 100 percent responsible for the injury. Any award is reduced by the percentage of assigned fault. For instance, a plaintiff determined to be 20 percent at fault would see a $100,000 award reduced to $80,000.   

Birth Injury Causes 

While each birth injury is unique, certain conditions during birth can increase the risk of harm. These include: 

• Abnormal birth presentation, such as a breech delivery 
• Large babies 
• Premature birth 
• Prolonged labor 
• Difficult labor or birth, formally known as dystocia 
• Mother’s disproportionate pelvic size 
• Maternal diabetes  
• Maternal obesity  

Common Types of Birth Injuries  

Babies have the advantage of healing quickly from certain types of birth injuries. For instance, while a clavicle fracture is among the most frequent types of injuries occurring during labor and delivery, most babies heal fast. However, there are many types of birth injuries that affect a child permanently or result in long-term disability.  

The most common serious types of birth injuries include: 

• Cerebral palsy: Often caused by a lack of oxygen during delivery, CP damages areas of the brain that control muscle function and movement. The effects of CP range from relatively mild to severely disabling, potentially requiring lifelong care.   
• Erb’s palsy: Also known as brachial plexus birth palsy, this injury results in the stretching or tearing of the nerves controlling movement in the arms, hands, and fingers. While some cases resolve on their own within three to four months, more seriously affected infants may require surgery including nerve grafts or muscle or tendon transfers from one part of the body to the damaged area.   
• Birth asphyxia: Caused by oxygen deprivation before, during, or after birth, asphyxia can result in permanent damage to the brain, heart, lungs, kidneys, and other organs. 

Other types of birth injuries may result in developmental delays, cognitive impairment, neurological defects, and motor disabilities.  

Proving Negligence in a Birth Injury  

Proving negligence requires evidence that the birth injury is linked directly to physician error during labor and delivery. First, you must be able to prove that the doctor, hospital, and any healthcare providers named in the lawsuit must have deviated from standard medical procedures and practices that resulted in the birth injury, and then you must prove that the deviation from procedures and practices directly resulted in the birth injury.  

To prove negligence, a birth injury lawyer reviews medical records, gathers witness testimony, and hires medical experts to testify about how the defendants did not meet professional care standards, thus harming the infant. Medical experts also testify as to the child’s prognosis and the type of medical treatment and care they will need.  

Additionally, an economic expert might testify as to the costs of caring for a child with long-term birth injury disabilities.   

Birth Injury Statute of Limitations 

In New York, the statute of limitations for filing a typical medical malpractice is 30 months from the date of the injury or 2.5 years. However, if the victim was under 18, a lawsuit can be filed up to 10 years after the date that the injury became known. So, if you do not discover that your baby is affected by a birth injury right away, the statute of limitations starts on the day the injury is diagnosed.  

Birth Injury Damages 

Unlike the majority of states, New York does not impose a cap on medical malpractice damages.  

Damages, or compensation, in a birth injury may include:  

• Medical expenses, current and future 
• Lost earning capacity over the child’s lifetime 
• Loss of enjoyment of life  
• Pain and suffering 

Under New York law, birth injury lawsuit damages benefit the child and are deposited into a special account. The child cannot access these funds until reaching legal adulthood at 18.  

Contact a New York Birth Injury Attorney 

If your child suffered a birth injury due to a doctor’s negligence, you need the services of a compassionate New York Birth Injury Lawyer at Rheingold Giuffra Ruffo Plotkin & Hellman LLP. Schedule a free, no-obligation consultation today.