Birth Injury Lawsuits: A Child’s Rights After Malpractice

Hundreds of thousands of children are born safely every day, guided into the world by caring obstetricians, nurses and, of course, their parents. Some families, however, begin their journey in darker circumstances, learning soon after delivery that their child has suffered some form of birth injury.

Once their newborn has been stabilized and cared for adequately, many parents find their fear and worries accompanied by pressing questions: why did this happen to our child? What caused our baby’s injuries?

What Causes Birth Injuries In Labor Or Delivery?

Birth injuries are as unique as the children who experience them. Some cases, though, are truly unavoidable. Childbirth is a complex physical and medical process. Things can go wrong, even though medical professionals use the best techniques available and all the care and compassion at their disposal. Even the world’s most skilled and highly-educated obstetricians will deliver a child with birth injuries every once in a while. But for many children who suffer harm during labor or delivery, the causes of that harm are far more complicated.

Doctor Standing Over Patient

Clear human errors can, and do, lead to severe forms of birth injury. Some children struggle through periods of oxygen deprivation, suffering extensive brain damage due to an obstetrician’s mistake. Other infants endure traumatic injuries, a frequent result when careless practitioners attempt to perform assisted deliveries.

Children Harmed By Doctors Deserve Justice

No matter the circumstances, these are preventable tragedies, often with life-long consequences. After suffering a serious birth injury, many infants will be left with long-term forms of impairment, including cognitive disabilities and motor deficits. At Marciano & MacAvoy, our experienced medical negligence attorneys believe that every family deserves an answer to the basic question of what happened in the delivery room.

Were mistakes made? Could your child’s injuries have been prevented? Our lawyers work every day to find answers to these fundamental questions. In our decades of legal practice, we’ve helped dozens of families after a medical professional’s negligence allowed harm to befall their newborn. Many of these families have been able to pursue a birth injury lawsuit, demanding financial compensation to provide for their child’s long-term care.

When Can You File A Birth Negligence Lawsuit?

When a child’s injuries were caused by medical negligence – a professional’s violation of standard medical practices – the family has a right to file suit, making a claim for damages against the responsible parties.

Most birth injury lawsuits filed in Pennsylvania relate to a number of serious disorders frequently caused by medical negligence:

  • Cerebral Palsy – a family of related neuromuscular disorders caused by brain damage
  • Hypoxic-Ischemic Encephalopathy – a form of brain damage caused by oxygen deprivation, often suffered during labor or delivery
  • Brachial Plexus Injuries – a family of muscular disorders, like Erb’s palsy, caused by damage to a network of nerves in the shoulder
  • Kernicterus – an extreme form of jaundice that can lead to brain damage when improperly handled

Medical malpractice claims are by no means limited to these four medical conditions. What’s more important, and comes to undergird every successful birth injury suit, are a collection of interrelated legal principles that define who should be held responsible when a child is hurt.

The Importance Of Medical Negligence

Like most personal injury lawsuits, claims filed over birth injuries are almost always founded in the legal principle of negligence. As members of the public, we can expect professionals who advertise themselves as specialists to uphold certain standards in their official capacities. Likewise, our nation’s laws provide the groundwork to make our expectation of professionalism a reality. Every medical patient has a legal right to receive care that is consistent with the standards and principles held broadly in the medical community. This right extends from doctors, including obstetricians, to nurses, midwives, radiologists and even hospital facilities.

A Medical Professional’s Duty Of Care

Each one of these professionals has a duty – both ethically and legally – to prevent harm from befalling a newborn child, insofar as preventing that harm is possible. In short, medical professionals are bound by a “duty of care.” Every day, millions of patients trust in their doctors and nurses to uphold this duty, applying better judgment and expertise in the diagnosis and treatment of health conditions.

As we all know, that doesn’t always happen. In some cases, medical professionals fall below their standard of care, committing mistakes or failing to act when the time is right. These failures in medical care are gathered together under the heading of “medical negligence.” Thankfully, the laws of Pennsylvania allow patients, including children, who have been harmed due to medical negligence the right to seek compensation.

How To Win A Birth Injury Lawsuit

Pursuing compensation and winning compensation are two different things. Building a successful birth injury lawsuit in reality is far more complicated than the short explanation of medical negligence we just provided. In order to secure compensation, every family will have to prove four basic facts about their case:

  1. the defendant in question (an obstetrician, neonatologist, nurse or hospital facility) owed the mother and her child a duty of care during labor and delivery
  2. the defendant was negligent in some way, deviating from the appropriate standard of care during the course of diagnosis or treatment
  3. the defendant’s negligence caused harm to the child or allowed harm to befall the child
  4. the child’s injuries resulted in specific damages and / or lost opportunities, which can be compensated financially

Defining the appropriate standard of care is paramount. Medical malpractice attorneys rely on independent medical experts, practicing physicians and specialists, to understand how health practitioners should and should not behave in specific circumstances. As you might expect, standards of care can change, depending on the unique medical situation at issue. We wouldn’t want an obstetrician to treat every patient the same, because all of their patients are different. In short, standards of care must change, in order for care to be effective.

After spelling out the applicable standard, birth injury attorneys work with healthcare experts to review medical records and other evidence, looking to identify moments of action or inaction that constitute violations of the standard of care. Next, a lawyer will develop compelling evidence that the professional’s negligent behavior led to the child’s injuries – that, but for the professional’s negligence, the child would not have suffered harm.

Defining Damages

The final step in developing a birth injury lawsuit is outlining the specific damages and losses that a child’s medical condition will make necessary. While there’s no one-size-fits-all package of damages, most families claim losses that fall into a number of the following categories:

  • past, present and future medical costsbaby who sustained birth injury
  • rehabilitation expenses
  • funding for occupational and physical therapies
  • psychological counseling
  • assistive technologies
  • modifications to the home
  • wages lost because the parents must care for their child
  • pain and suffering

Many children who develop cerebral palsy, a neuromuscular disorder that can be caused by birth-related brain damage, will require life-long medical care. While taking into account every contingent event that impacts a human life is impossible, many malpractice lawyers will work with life care planners to develop an accurate estimate of how much providing for the injured child will cost. Life care plans are extremely thorough, comprising all of the therapies, surgical procedures and environmental alterations that will foster a child’s well-being, even leaving room for new advances in medical technology that could occur in the future.

Life care planning isn’t just a beneficial step in the process of building a medical malpractice lawsuit. Many parents find invaluable the opportunity to gain a comprehensive understanding of the road ahead, before embarking on their family’s journey.

Does Pennsylvania Have A Damages Cap?

Not really. While many states have passed laws to limit the amount of damages available in medical malpractice claims, Pennsylvania has not. In short, families can be awarded any amount of compensation that is appropriate, no matter how high. There is, however, one wrinkle to this optimistic picture.

MCARE & Punitive Damages

When a plaintiff is awarded punitive damages, which are intended to punish a medical professional for particularly outrageous conduct, some of that money goes to a state-administered insurance program. This fund, known as MCARE after the Medical Care Availability and Reduction of Error Act, receives 25% of every punitive damages award handed out in medical malpractice lawsuits. The money is then used to compensate other victims of medical negligence when their claims exceed a doctor’s insurance policy.

In some cases, extremely-high awards of punitive damages will be reduced. By law, no punitive damage award can be more than 200% of the compensatory award issued in the case, unless the medical professional is found to have harmed a patient intentionally.

Are Birth Injuries & Birth Defects The Same?


Birth injuries are distinct from birth defects, malformations that develop at some point during the process of fetal development. Children are born with birth defects, or congenital anomalies. In many cases, birth defects are directly caused by genetic mutations, either random ones that pop up during the growth of a fetus or hereditary abnormalities that can be passed from parent to child. Birth injuries, on the other hand, are inflicted on children, usually during labor or delivery.

Pennsylvania’s Statute Of Limitations

Like all states, Pennsylvania has established a statute of limitations to govern birth injury lawsuits. This statute defines a specific time limit for the filing of claims. Attempt to file suit after the statute of limitations has run out and your lawsuit will be dismissed automatically, no matter how legitimate your accusations.

Pennsylvania’s general statute of limitations for medical malpractice is two years, beginning on the date of actual negligence. The situation changes, however, when the victim of negligence is a child or minor. In these cases, the statute of limitations is tolled, or paused, until the child reaches the age of majority. In other words, the statute of limitations will only begin to run once the child has turned 18. As a result, most families will be allowed to file their lawsuit at any time before their child turns 20.

Pennsylvania is relatively friendly to patients. Unlike other states, Pennsylvania does not require victims of medical malpractice to submit their claims to a pretrial screening panel. The majority of states force plaintiffs to have their allegations vetted by a committee of attorneys and doctors before they are given the right to file suit.

Isn’t Filing A Lawsuit Expensive?

At Marciano & MacAvoy, our experienced birth injury attorneys work on contingency-fee basis. That means you only pay our lawyers once we’ve secured compensation in your case. In short, we assume the financial risk of litigation so that you don’t have to. Our attorneys also offer free consultations. You deserve to understand more about your legal rights and options without risking any money. To speak with a lawyer today, just call Marciano & MacAvoy or fill out our online contact form.

Do You Need A Personal Injury Lawyer To Fight For Your Rights?
If you have been seriously injured as a result of negligence of another person or other legal entity, our Marciano & MacAvoy are here to help. We offer free consultations. To schedule yours, please call

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