Question 1

What is the difference between a birth injury and a birth defect?

Accepted Answer

A birth injury is harm to a baby, or to the mother, that happens around labor and delivery. Some birth injuries are caused by medical negligence, and some happen even when the care was appropriate. A birth defect is a condition that develops before labor, often from genetic or developmental causes, and is not caused by how the delivery was handled.

Birth injuries that are reviewed for possible negligence include oxygen deprivation after warning signs on the fetal heart monitor, injuries linked to the use of forceps or a vacuum extractor, the handling of shoulder dystocia, and medication errors during labor. Whether any of these was negligent depends on the records and on review by qualified medical experts.

A birth defect usually is not a malpractice claim on its own. A claim may exist, however, if a provider failed to identify or act on prenatal findings, or failed to prepare for a delivery that was known to be high risk.

In every case, a malpractice claim requires proof that the care departed from accepted medical practice and that the departure caused the injury.

Question 2

What are the most common causes of preventable birth injuries?

Accepted Answer

Birth injury claims commonly examine whether the medical team recognized and responded to concerning fetal heart rate patterns, whether a cesarean delivery was performed when it was indicated, how forceps or vacuum extractors were used, whether maternal conditions such as preeclampsia or gestational diabetes were diagnosed and managed, how shoulder dystocia was handled, whether medications used during labor were ordered and monitored correctly, and whether newborn problems such as infection or severe jaundice were identified and treated.

There is no single fixed deadline that defines when a cesarean delivery must happen. Whether the timing of a delivery departed from accepted practice depends on the clinical circumstances and is decided with expert testimony.

None of these events proves negligence by itself. Medical experts review the prenatal, labor, delivery and newborn records to determine whether the care departed from accepted practice and whether that departure caused the injury.

Question 3

How long do I have to file a birth injury lawsuit in New York?

Accepted Answer

For a malpractice claim on behalf of the child, the basic deadline is two years and six months from the act or omission complained of, or from the last treatment where there is continuous treatment for the same condition (CPLR 214-a). Because the child is a minor, CPLR 208 extends that deadline, but in a medical malpractice case the extension cannot run beyond ten years after the claim accrued. The ten-year infancy extension runs from the negligent act or omission, not from the child's birthday or the end of later continuous treatment (Matter of Daniel J., 77 NY2d 630).

There is no new malpractice deadline after the child turns 18. Once the ten-year limit has passed, waiting until adulthood does not revive the claim.

Claims for the mother's own injuries are generally subject to the two-year-and-six-month period without the infancy extension. If the child died, a wrongful death action generally must be commenced within two years of death (EPTL 5-4.1), and the malpractice deadline may also matter.

Public hospitals add separate notice rules. NYC Health + Hospitals is its own public corporation: for an ordinary malpractice injury claim, a notice of claim is generally due on Health + Hospitals within 90 days, and the lawsuit generally must be commenced within one year and 90 days (Unconsolidated Laws section 7401(2)). Serving the City Comptroller instead does not satisfy that requirement (Scantlebury v. New York City Health & Hospitals Corp., 2005). A claim against a State-operated hospital goes to the Court of Claims and must be filed and served on the Attorney General within 90 days of accrual, unless a written notice of intention is served within that time (Court of Claims Act section 10(3)). A county or other municipal hospital may require a notice of claim within 90 days under General Municipal Law 50-e. Infancy does not automatically excuse a missed notice; a court may allow late notice and will consider infancy, but not beyond the time allowed to sue (General Municipal Law 50-e(5)).

Deadlines depend on the facts, the providers and the hospital involved, so they should be reviewed by a lawyer as early as possible.

Question 4

What types of compensation can we recover for birth injuries?

Accepted Answer

If negligence and causation are proved, damages in a birth injury case can include past and future medical care, therapy, equipment and attendant care, home and vehicle modifications, the child's loss of future earning capacity, and the child's pain and suffering. Parents may have a related claim for medical expenses they paid for the child.

The amount of any recovery depends on the proof of the injury, the care the child is expected to need, and the evidence of negligence and causation. Future needs are usually documented through treating physicians, life care planners and economists. We do not quote typical values for types of birth injuries, because every case depends on its own facts and no result can be predicted from the diagnosis alone.

If a child died, the claim is governed by New York's wrongful death statute, which limits damages to pecuniary losses and certain expenses. See the question below about a baby who died during or shortly after birth.

Question 5

What is cerebral palsy and is it always caused by medical negligence?

Accepted Answer

Cerebral palsy is a group of permanent disorders of movement and posture caused by injury to, or abnormal development of, the developing brain before, during or shortly after birth. Its severity ranges widely.

Cerebral palsy is not always caused by medical negligence. Many cases arise from causes unrelated to delivery care, and in some the cause is never identified. A malpractice claim exists only if the evidence shows that a provider departed from accepted practice, for example by failing to respond to signs of fetal distress, failing to treat a maternal infection, or failing to treat severe newborn jaundice, and that this departure caused the brain injury.

The evidence usually reviewed includes the fetal heart rate tracings, labor and delivery notes, Apgar scores, umbilical cord blood gas results, newborn records and brain imaging. Specialists such as maternal-fetal medicine physicians and pediatric neurologists help determine when the injury most likely occurred and whether different care would have prevented it.

Question 6

What is Erb's palsy and how does it happen?

Accepted Answer

Erb's palsy is weakness or paralysis of the arm caused by injury to the brachial plexus, the network of nerves that runs from the neck into the arm. It is often associated with shoulder dystocia, when the baby's shoulder becomes caught behind the mother's pubic bone after the head is delivered. Some children recover, and some are left with lasting weakness.

A brachial plexus injury is not automatically the result of negligence. Whether the care was negligent depends on the circumstances, such as whether known risk factors were identified and considered in planning the delivery, how the shoulder dystocia was managed, and how much traction was applied to the baby's head and neck. Recognized maneuvers for shoulder dystocia include McRoberts positioning, suprapubic pressure and delivery of the posterior arm, and the delivery record should show what was done and when.

Proving a claim requires review of the delivery record and testimony from qualified obstetric experts about whether the management departed from accepted practice and whether that departure caused the injury.

Question 7

Can we sue if our baby died during or shortly after birth?

Accepted Answer

Possibly. If a baby is born alive and dies because of medical negligence, a wrongful death action may be brought. In New York that action is brought by the personal representative of the child's estate, meaning the administrator or executor appointed by the court, not by the parents in their own names (EPTL 5-4.1). It generally must be commenced within two years of death. The personal representative may also pursue the child's own claim for injury before death (EPTL 11-3.2).

Wrongful death damages in New York are limited to fair and just compensation for the pecuniary injuries resulting from the death, together with reasonable medical and funeral expenses, and punitive damages only where the child could have recovered them had the child survived (EPTL 5-4.3). Under the current statute, grief and loss of companionship are generally not recoverable.

A stillbirth is treated differently. New York does not allow a wrongful death action on behalf of a fetus that was not born alive (Endresz v. Friedberg, 1969, as discussed in Broadnax v. Gonzalez). The mother, however, may recover for her own injuries, including emotional distress, when medical malpractice causes a miscarriage or stillbirth, even without a separate physical injury (Broadnax v. Gonzalez, 2004).

Not every infant death or stillbirth involves malpractice. The medical records, and an autopsy where one is performed, are reviewed by experts to determine whether different care would have changed the outcome. If a public hospital was involved, separate notice rules apply; for a death claim against a municipality, the 90-day notice period generally runs from the appointment of the estate's representative (General Municipal Law 50-e).

Question 8

How much does a birth injury attorney cost?

Accepted Answer

Medical malpractice fees in New York are limited by Judiciary Law 474-a. The maximum contingent fee is 30% of the first $250,000 of the sum recovered, 25% of the next $250,000, 20% of the next $500,000, 15% of the next $250,000, and 10% of any amount over $1,250,000. A lawyer may ask the court for a greater fee only in extraordinary circumstances (Judiciary Law 474-a(4)).

For illustration only, on a $10,000,000 recovery before any case expenses are deducted, the schedule produces a maximum fee of $75,000 + $62,500 + $100,000 + $37,500 + $875,000 = $1,150,000, leaving $8,850,000. This is arithmetic showing how the statutory schedule works. It is not a prediction or promise about any case or any recovery.

The statute applies the percentages to the net sum recovered after deducting expenses and disbursements for expert testimony, investigation and other services properly chargeable to the case. Actual case expenses therefore reduce the amount on which the fee is calculated, and the client's net amount is also reduced by those expenses and by any liens.

How expenses are advanced and repaid, including what happens to them if there is no recovery, is set out in the written retainer agreement. We explain those terms before you decide whether to sign.

Question 9

What should I do right away if I suspect my baby suffered a birth injury?

Accepted Answer

First, make sure your child receives appropriate medical care and follow-up. Evaluation by pediatric specialists and early intervention services matter for your child's health regardless of any legal claim.

Second, request complete copies of the mother's prenatal, labor and delivery records, including the fetal heart rate tracings, nursing notes and anesthesia records, and the baby's newborn and NICU records, including Apgar scores and any umbilical cord blood gas results.

Third, write down a timeline of the pregnancy, labor and delivery while it is fresh, including what you were told and by whom. Keep bills, receipts and a record of time missed from work, and keep any photographs or videos that show your child's condition.

Fourth, get legal advice before signing releases or settlement papers presented by a hospital or insurer, and think carefully before posting about the delivery on social media.

Finally, speak with a lawyer early. Deadlines can be shorter than families expect, especially when a public hospital is involved, and the infancy extension for malpractice claims is capped at ten years from the malpractice.

Question 10

Will going to court be traumatic for my family, and how long does the process take?

Accepted Answer

Birth injury cases often take a long time, and it is normal for families to find parts of the process difficult. The length of a case cannot be predicted at the start.

A case usually begins with gathering the records and having them reviewed by medical experts. If a lawsuit is filed, the case moves through the exchange of records, depositions of the parties and witnesses, expert disclosure and court conferences. Many cases are resolved by settlement, and some go to trial.

Parents are usually involved at specific points: providing information and records, preparing for and giving a deposition, and testifying if the case goes to trial. Medical questions are addressed by expert witnesses, not by the family. Much of the remaining work is handled by the lawyers.

We explain each step in advance, tell you what to expect, and give you an honest assessment as the case develops so your family can decide what is right for you.

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Birth Injury Lawyers

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Fetal monitoring and timing

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What is a Birth Injury?

Issues Reviewed in Birth Injury Cases

Types of Birth Injuries

Cerebral Palsy

Erb's Palsy

Brain Damage

Fractures

Facial Nerve Palsy

Shoulder Dystocia

Important Time Limits

New York Statute of Limitations

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Suspect Your Baby's Injury Was Preventable?

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