Birth Injury Claim for Compensation

Fact Checked

Thousands of babies are born every day in the U.S. with birth injuries. Some babies will be affected for the rest of their lives due to medical malpractice. A birth injury claim for compensation is a valid way to fight for compensation from those who caused your child’s injuries.

What Is a Birth Injury?

A birth injury is any injury that happens during childbirth. However, sometimes a mistake made in the hospital shortly after a baby is born can also result in harm grouped with birth injuries. Some of these injuries are physical, such as broken bones, a skull fracture, or paralysis of the arm or face.[1]

Other injuries are neurological or mental, such as nerve damage that leads to palsy or brain or spinal cord damage.

The consequences of a birth injury can range from mild to severe and temporary to permanent. Some children will live forever with cerebral palsy, a condition that varies in severity.

A child born with cerebral palsy may have average intelligence and only slightly impaired movement. In contrast, another may have cognitive impairments, difficulty eating and breathing, and changes so impaired that walking is impossible.[2]

Other consequences of birth injuries are Erb’s palsy, which can cause paralysis, weakness, or loss of sensation in one arm to varying degrees. Brain damage that leads to epilepsy, cognitive impairments, developmental delays, and behavioral issues is also possible as a child grows older.

Skull fractures ranging from small to large can cause severe and life-threatening consequences or may be mild and may not even be detected.

What Causes Birth Injuries?

There are many possible causes of birth injuries. Cerebral palsy is the most common birth injury, most often caused by a lack of oxygen to the brain. Several factors can lead to a baby being deprived of oxygen during birth.[3]

Examples include complications in the womb or during delivery or an untreated maternal infection. For instance, preeclampsia in the mother may also cause a child to receive too little oxygen and suffer brain damage.

Physical trauma is another cause of birth injuries. If delivery is long and complicated, the baby may become injured in the womb and the birth canal, directly from the pressure of the mother’s pelvis.

If the doctor or other professional delivering the baby uses too much force, either while pulling on the baby or using instruments like forceps, that also can cause trauma and damage.

When Negligence Causes a Birth Injury

There are instances in which a birth injury is caused by some factor that could not be controlled for or that the doctor could not have prevented. Sometimes, though, the birth injury is caused by something preventable, a doctor, or other staff member’s error.

For example, a doctor using forceps to get a baby out through difficult labor could use too much force and cause a fracture in the baby’s delicate skull.

In another instance, a mother may show signs that her labor will be difficult or that her baby is unusually large. Yet, if the doctor fails to perform a Cesarean section to avoid complications, the baby could suffer a birth injury during delivery.

What Is a Birth Injury Claim for Compensation?

A birth injury claim for compensation is a legal claim that a parent may make on behalf of a child that has suffered harm during or soon after birth.

When you make a claim, you must be prepared to prove that negligence or medical malpractice caused your child’s birth injury.[4]

With the assistance of an experienced legal team,  you stand a good chance of winning compensation to help care for your child.

A claim for compensation may include several factors. If you are thinking of filing a claim, keep track of all the expenses of the birth injury and the projected cost to your family in the future.

A claim may include medical bills already incurred and those you expect to have to pay in the future. It can consist of the costs of any therapy your child may need, in-home medical care, institutional care, medications, adaptive equipment, and travel to medical appointments.

A claim may also include the intangible costs of emotional suffering for you and your child.

What Does Birth Injury Compensation Cover?

A compensation claim potentially covers all expenses related to your child’s birth injury and resulting medical conditions or disabilities:

• Medical bills
• Future medical expenses
• Travel expenses for appointments and treatment
• Therapy
• Home care
• Assistive devices
• Educational and behavioral interventions
• Lost earnings

You can also claim for what is known as non-economic damages. These are the intangible costs for things like your child’s loss of independence and emotional pain and suffering. Many states limit this type of compensation with a cap.

Am I Eligible to File a Claim for My Child’s Birth Injury?

The best way to determine if you have a case for making a claim is to talk to a birth injury lawyer. They will review your case for free and determine if it is likely negligence and malpractice played a role.

In general, if a doctor’s mistakes caused your child’s injuries and disability, you can file a claim for compensation. Negligent medical professionals can be held accountable and liable for damages.

Many types of injuries, conditions, and disabilities fall under the category of birth injury and are eligible for compensation:

• Cerebral palsy
• Nerve damage
• Brain damage
• Erb’s palsy
• Brachial plexus damage
• Shoulder dystocia
• Forceps and vacuum extractor injuries
• Newborn jaundice

You can also file for compensation over wrongful death if your child died from birth injuries.

What Is My Child’s Birth Injury Claim Worth?

According to studies, the average medical malpractice payout for a child less than one year old is approximately $1 million.[5] 

An average is helpful for comparison, but the worth of your child’s claim could be significantly different. It depends on the factors unique to your case. Your lawyer will seek an amount of compensation for your child based on:

• The degree of negligence involved
• The severity of your child’s injuries and resulting disabilities
• Current medical bills
• All future expected expenses for treatment, care, therapy, and assistive devices
• Lost wages if you cannot return to work
• Your child’s loss of independence
• Pain and suffering

How to Make a Claim

To make a birth injury claim for compensation, you need to start with a legal team. You need a lawyer or group of lawyers experienced in medical malpractice and birth injury cases.

You also want a team that has won these claims for clients in the past. Once you have a legal team, these professionals will take the reins and file the claim.

The legal team will also go to work investigating the incident and collecting the evidence needed to make your case. They will help prove that the medical professional you trusted for your care made an error that directly led to your child’s birth injury. Your legal team will then represent you and your child and fight to get you that compensation.

Settlement vs. Trial

Your claim for compensation will most likely end in a settlement. Most insurance companies and hospitals want to avoid going to trial, which is costly and time-consuming.

They will try to settle with you, and your lawyer will represent you during these discussions.

If neither side can come to a satisfactory agreement on a settlement amount, then the case may go to trial. In this case, a judge and jury will hear your evidence and the defendants’ arguments, and a jury may or may not award you a settlement for your claim.

When Should I File a Birth Injury Claim?

It is important to act quickly, as soon as you realize your child suffered injuries during birth. State laws known as statutes of limitations limit the time you have to file. Most states set this limit at two or three years. Talk to a lawyer about your case right away to avoid missing the deadline.

It may seem daunting, but filing a claim for birth injury compensation is essential. Get started as soon as possible. An experienced birth injury lawyer can look over your case and help you file.