The Birth Injury Case: Proving Malpractice (Part II)


Nothing is more devastating than having a child born with a brain injury. Discovering that the birth injury could have been prevented, or was the result of a doctor’s or hospital’s or other medical provider’s malpractice, however, only compounds the tragedy. In Part I of this article, we discussed the information needed to review a claim; in this article, we will discuss who needs to review the records for a medical malpractice birth injury claim, and other important factors, such as the statute of limitations that applies to these cases.

Typically experts from several medical specialties will be involved to assess the circumstances of the birth. An obstetrician/gynecologist will need to review the records to determine if the obstetrical care was substandard and provide an opinion on this issue. Nursing experts may need to review the records to evaluate whether or not the nurses, who have an independent duty to the patient separate from that of the doctor, complied with nursing standards of care.

A pediatric neurologist and a neuroradiologist will likely be retained to evaluate whether or not negligence caused the baby’s condition to occur. There must be proof of negligence or substandard care and proof that the negligent care caused your baby’s harm. Without proof of a cause and effect relationship between some conduct or misconduct by medical personnel and the condition of the baby, a legal case cannot be proved.


It will be important for the experts to rule out other non-negligent causes for your baby’s injury. Since it is your burden to prove that it was substandard care that caused your child’s problems, the non-negligent causes for his or her condition will have to be discounted and ruled out in order to properly establish the case.


Each state has different laws which govern how much time you have to bring a claim on behalf of your injured child. You need to check with a local lawyer to find out what the time frame is for pursuing a claim on behalf of a minor in your state. Parents typically have much shorter periods of time to pursue any claims they may have in connection with the birth of an injured child. In some states, minors have until two years past their age of majority to bring a claim creating a long window for investigating and pursuing a case on behalf of your minor child.


The damages to your child can be catastrophic, impacting upon all aspects of his/her life. Life care planners will serve to evaluate your child’s long term needs and what the cost of that care will be over your child’s lifetime as part of an assessment of what the damages are that have resulted from the negligence. The non-economic damages of disability, physical pain and suffering, and loss of life’s pleasures are items that will need to be demonstrated through expert testimony, and are typically left to be quantified by a jury if negligence is proved.


It is never easy to prove that a doctor’s medical malpractice was the cause of a birth defect or injury. In addition, the process that medical malpractice attorneys use to evaluate these types of negligence cases can be time-consuming. However, without a thorough analysis of the records by an experienced birth injury lawyer, malpractice may be overlooked. That is why attorneys who handle medical negligence cases work with medical experts to verify whether or not the claim can be proved.

While an evaluation does not always determine that the doctor or hospital or other medical provided negligent, the conclusions reached may provide some answers why the injury occurred.

About the author: Philadelphia medical malpractice attorneys Judy Greenwood & Stephen Ulan have represented victims of medical negligence and catastrophic injuries for 25 years. Their office is located at 1800 JFK Blvd., Suite 1500A, Phila., PA 19103,, email [email protected].

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