Is Birth Injury Medical Malpractice?

Birth injuries happen for a number of reasons, some of them preventable and some of them not. If you and your child have suffered injuries because your medical providers acted negligently or without the due care and attention you deserved during either your pregnancy or the birth, it may be medical malpractice.

What is Medical Malpractice?

Medical malpractice occurs when a medical provider who owes you a duty of care acts negligently. This can be either an act or an omission.

Medical providers are trained to follow the standard medical practices, and if they deviate from these, then they are acting negligently. This is an act, as they are acting negligently by choosing to deviate from the practices.

It is also medical malpractice if your medical provider acts without due care and attention. This is an omission. An example of this would be if your medical providers did not carry out adequate levels of fetal monitoring while you were pregnant.

Four Elements to Prove in a Birth Injury Medical Negligence Case

Here in Maryland, there are four important elements that you will need to prove in order to successfully win your case. Your attorney will evaluate your case to decide if you meet these requirements:

Duty of Care

The first thing you will need to prove is that the at-fault party owed you a duty of care. When it comes to medical malpractice and negligence, this is the easiest element to prove as your medical providers automatically assume a duty of care to you when you are in their charge.

Breach of the Duty of Care

The next step is proving there was a breach in the duty of care. This is the hardest thing to prove, as you will need to show that the medical provider acted negligently. To prove this, you will need to show that they either acted without due care and attention, for example, neglecting to administer prenatal tests that may have shown problems, or they deviated from the standard medical practices.


The third step to prove is causation. Causation involves proving that the breach in the duty of care has directly led to a preventable birth injury being suffered by the victim.

Proving a child’s birth injury was the direct cause of the malpractice is relatively straightforward in most cases.


The last thing to prove is that the injuries that have been suffered directly led to damages being suffered. This may include economic damages, such as medical bills or non-economic damages like pain and suffering.

Peter Angelos Law – Medical Malpractice Law Firm

As a parent, there is nothing worse than witnessing your child suffer, and if they are suffering due to the negligence of a healthcare provider, you have every right to be angry, and you may be entitled to raise a medical malpractice lawsuit against the responsible party.

Here at Peter Angelos Law, we dedicate a lot of our professional time to cases involving birth-related medical malpractice. As soon as you get in touch, our team can investigate the medical providers responsible and if necessary, we will speak to our own experts to hear their professional medical advice regarding your case. An experienced birth injury lawyer is ready to help, so call us today at:

Types of Birth Injuries

Preventable birth injuries can lead to a range of problems for the child or the mother. Some injuries may impair movement, and some may lead to development problems. These injuries may be temporary or permanent.

Most of these injuries fall into two categories:

Prenatal Error

Prenatal birth error occurs when the medical providers responsible for looking after the baby neglect to monitor the fetus correctly. Your medical providers should carry out fetal monitoring all through the pregnancy and should carry out tests that check for things like spina bifida. If they fail to do so and your child is born with a condition or injury that should have been detected, this could count as medical malpractice, and you should speak to an attorney.

Labor and Delivery Error

The second form of birth injury happens during labor and delivery. When complications arise during the birth, the attending medical providers need to act quickly and in the correct manner to prevent injury.

If they fail to act quickly enough or they deviate from the standard medical practices and the child suffers an injury, one that could have been preventable, and you may have a case.

Here are the more common causes of injury:

Head Trauma During Delivery

When a newborn baby is born, their head is particularly vulnerable and needs to be handled with care. If there is too much force placed on the head, injuries such as brain damage can be suffered.

Neglecting to Perform Specialized Tests

During the pregnancy, there should be regular testing carried out. Correct fetal monitoring can detect and diagnose conditions quickly, meaning there is a better chance of timely treatment.

Delay in Converting the Mother to Caesarian Section

Your medical providers should be trained to convert you to a c-section in a timely manner if it becomes necessary. If it has become obvious that you will need a c-section, and your medical providers have delayed in converting you, and your baby has suffered an injury, it could have been preventable.

Negligent Vacuum Use

When a mother starts showing signs of struggle during the birth, the attending medical providers may make the decision to utilize a vacuum. Using a vacuum to assist with the birth comes with a host of risks, and the decision should not be made lightly.

If your medical providers used a vacuum to help you deliver your child and they have suffered brain damage, bruising, or any other trauma, you should speak to an attorney, as the decision may have been incorrectly made.

Oxygen Deprivation

Another common birth injury occurs when there is a reduction in the amount of oxygen flowing to the baby’s brain. This can occur for a number of reasons and may result in brain damage or other impairments. The brain does not repair the same way that the rest of the body does, and that means brain damage is often permanent.

The medical name for oxygen deprivation is Hypoxic-Ischemic Encephalopathy or HIE. Testing the baby for signs of HIE is one of the reasons why fetal monitoring is so important. Detecting signs of HIE early may prevent brain damage or the wrongful death of the child.

Types of Common Birth Injuries That Could Be Caused by Medical Malpractice

Brachial Plexus Injury

The brachial plexus is a cluster of nerves at the top of the arms, and during the birth, these nerves can be damaged if there is too much force applied to the neck or if the head has been pulled hard to either side.

A damaged brachial plexus may lead to a lack of mobility in the arms, shoulders or hands.

Cerebral Palsy

Cerebral palsy is one condition that can occur due to HIE. It occurs when there is a lack of oxygen during the pregnancy, or birth. It is also common when a baby is born prematurely.

Symptoms can include:

  • Shaking
  • Involuntary movements
  • Delays reaching milestones such as motor skill milestones
  • Poor muscle coordination
  • Weakness in one leg or arm
  • ‘Scissored’ gait
  • Stiff or tight muscles

Spina Bifida

Your baby’s spine needs to seal and connect properly for there to be full function. If there is too much force applied to the spine, it may not seal properly or on time and this can result in a spinal lesion injury.

As the spine does not repair from any damage it suffers, these injuries are usually permanent.

Fetal monitoring can detect spina bifida through either blood tests, fluid tests or ultrasound.

Symptoms may include:

  • Bladder or bowel problems
  • Scoliosis
  • Difficulty with planning, organizing, or solving problems
  • Atypical eye movement
  • Difficulty paying attention
  • Hip injuries
  • Club foot
  • Weakness or paralysis of the legs

Wrongful Birth

Wrongful birth occurs when a doctor does not inform parents about possible or imminent physical or mental birth defects that may have led the parents to opt for a termination.

Statute of Limitations for a Birth Injury Lawsuit

In Maryland, there is a statute of limitations that places a legal time limit on how long you have to raise a lawsuit after a birth injury. If you do not make a claim within this period, your case will be thrown out if you try to raise it.

Your chances of successfully raising a birth injury claim will always be stronger if you involve an attorney as early as possible. Medical malpractice claims are always highly reliant on evidence and building a strong case. Both of these are much easier the more time you give your attorney.

The statute of limitations in Maryland states:

You have three years from the date of the malpractice incident or, in some circumstances where the injuries were discovered later, you have five years from the date but no more than three years from the discovery of the injuries.

Which Malpractice Personal Injury Lawyers To Hire For Your Case

Deciding who you want to represent you in your birth injury case can feel like a difficult decision. You may have never needed representation from a law firm before, and you may not know where to begin.

Fighting a medical malpractice case means fighting against a highly skilled, aggressive legal team. This is because medical malpractice claims have historically resulted in some substantial payouts. In turn, the insurance companies that defend medical clients hire strong teams of loss adjusters.

This is one of the reasons why researching any attorney you are considering hiring is essential. The best way to do this is to check out independent review sites like AVVO. These sites place a rating on attorneys based on their previous success, accolades and awards, years of service, and client reviews.

When you have decided upon some potential attorneys, arrange an initial case evaluation with them and prepare a list of questions you want to ask. This can help you get a feel for your attorney and will help you make the most of your time.

During your free consultation, here are some things to speak to your attorney about:

  • Experience – Perhaps the most important thing you should be looking for in an attorney is their experience and success record. You should make sure your attorney has won favorable outcomes in cases similar to yours. The more experience and the more victories they have, the better equipped they will be to handle your case. An attorney with a good reputation can be enough by itself to convince the other party to settle out of court.
  • Legal Expertise – While most personal injury lawyers handle medical malpractice cases as well, we recommend finding a law firm that dedicates most of its professional time to helping victims with a medical malpractice claim.
  • Medical Expertise – While you cannot expect your medical malpractice attorney to have medical training themselves, they should have medical experts on call to advise them, and have a firm grasp of the relevant medical field and concepts.

Birth Injury FAQs

Do all birth injuries qualify for a claim?

There are a lot of inherent risks that come with childbirth, and sometimes birth injuries cannot be avoided. If the medical providers attending did everything correctly and followed the standard medical practices, and your baby was still injured, you may not have a claim.

If, however, there was clear negligence, and your medical providers acted without due care and attention or deviated from the standard medical practices, and your child was injured, the injury may have been preventable. In this situation, you may have a case, and you should discuss it with an attorney.

How long do birth injury cases take?

There is no average time for how long medical malpractice cases may take due to their complexity. Every case will be unique and will have a lot of different factors that influence the length of time the case will take.

There is no clear answer to this question, and even looking at statistics around birth injury cases can be deceiving.

The period of time it takes for your case to go from start to completion is going to depend upon how long it takes your attorney to uncover evidence, the level of liability, and the seriousness of the injuries suffered. The other party’s insurance company may decide to settle quickly, but they may also decide to drag their heels and fight you in court.

You should be prepared for your case to take several years.

How are birth injury lawsuits funded?

At Peter Angelos Law, we are passionate about providing help to those who need us. This means we are passionate about making our representation available to all victims, regardless of their financial situation.

We offer a free initial consultation and case evaluation. This gives you the space to ask questions and gain some confidence in your abilities.

In this initial consultation, we will explain our fee structure. We work on a contingency fee basis, meaning you only pay us a percentage of your settlement if we win your case. We do not take initial payment to represent you, and we do not take payment if we lose your case.

Do all birth injury cases go to court?

Your case will only proceed to the courtroom if your attorney cannot negotiate a settlement that you are happy with beforehand. The other party may look at the evidence and decide the liability is not clear. In this situation, they may decide they would prefer to fight it out in court.

Many cases settle before it gets to this stage, as it is in neither party’s benefit to fight a long-drawn-out court battle with extra fees.

You should make sure that any attorney you decide you wish to represent you has excellent litigation skills alongside their negotiation skills. This will ensure they are prepared to handle your case, no matter what direction it takes.

Contact an MD Birth Injury Lawyer Today

As a parent, you should be able to hold any medical provider accountable that has caused you or your child a preventable injury. If they have acted negligently, you may be entitled to recover your damages and pursue compensation for your child’s pain and suffering.

Call us today and arrange a free consultation at 410-705-2405.