Bringing your baby into the world should be a joyful experience. Whether it’s your first child or your last of many, each birth experience is a time to mark the miracle of life and new beginnings. Unfortunately, however, for some families, the birthing experience is riddled with trauma. Indeed, when a doctor or other healthcare staff commits medical errors during childbirth, your newborn could sustain serious and life-altering injuries. And when your baby sustains serious and life-altering injuries, their future and your family’s financial health and way of life become suddenly uncertain. Indeed, a family may face mounting medical bills, rehabilitation expenses, lifelong care expenses, and a complete change in outlook. A birth injury lawsuit allows that family to pursue compensation to address both immediate and long-term challenges. A legal victory can provide crucial financial support for treatments, therapies, home modifications, and more. This in-depth article will explore birth injuries, the legal process, resolution factors, and how a family can obtain compensation and peace of mind.
Key Factors That Determine Birth Injury Lawsuit Settlement Amounts
If a birth injury lawsuit results in a verdict or settlement, how is that compensation figure determined? What measurements matter in determining the exact settlement amount?
1. Severity of the Injury
The more serious the injury, the higher the costs associated with long-term care. A child with mild nerve damage may need a few months of therapy, whereas a child with spastic quadriplegia as a result of cerebral palsy may require lifetime support, including caregivers, home modifications, and medical equipment. As you can imagine, the latter injury would require significantly more resource-intensive accommodations. The next item, Future Medical Care Costs, outlines what a parent can expect.
2. Medical Care Costs
How much care does the baby need – immediately, and moving forward as they grow? Below is a detailed list of the various medical care and therapies the baby/child may need:
Initial and Acute Medical Care may include short or extended stays in the neonatal intensive care (NICU); diagnostic testing including MRIs, CTs, and EEGs; and hospital stays and surgery, such as surgery to relieve pressure on the brain.
Rehabilitative Therapies may include physical therapy which helps with movement, balance, and muscle strength, especially if cerebral palsy or motor delays are present; occupational therapy, which focuses on fine motor skills and daily living tasks; speech and language therapy, which supports communication skills, swallowing issues, and cognitive development; and behavioral therapy, which is especially important if the injury affects emotional regulation or causes developmental disorders.
Ongoing Medical Care may include regular visits to specialists like neurologists, orthopedists, and developmental pediatricians; medications for seizures, muscle spasticity, or other related complications; assistive devices such as wheelchairs, walkers, braces, communication boards, or feeding tubes; and home health care such as in-home nurses and aides for children with complex needs.
Long-Term Support and Planning expenses encompass home modifications like ramps, widened doorways, adapted bathrooms, and medical equipment; transportation needs such as special vans or lifts for mobility devices; special education costs similar to what was referenced above and including private school tuition, tutoring, and therapeutic educational programming; and lifelong care planning because some children who suffered a birth injury may never live independently, so families often plan for guardianship or supervised living environments.
These costs can add up to millions—or even hundreds of millions—of dollars over a child’s lifetime, depending on the severity of the injury. Holding the responsible party liable helps ensure the child receives the necessary care without overwhelming the family financially.
These assessments can add millions of dollars in future care value to a settlement.
3. Pain and Suffering
In a birth injury case, pain and suffering refers to the non-economic damages—the physical and emotional toll—experienced by the child and their family. These are harder to quantify than medical bills but just as real. Non-economic damages are described above and also include the following examples separated by the pain and suffering experienced by the injured child versus the injured parent.
Child
A child can experience physical pain from surgeries, repeated medical interventions, muscle stiffness, or recurring seizures. A child can also experience frustration and distress from being unable to move, speak, or interact as easily as their peers. They may suffer emotional trauma from social antagonism and isolation. They miss out on normative childhood experiences like playing, running, or attending school without assistance. Any of the above limitations may be permanent, in other words, the child will always suffer from them.
Parent
Parents typically experience emotional anguish when observing their child struggle and suffer. They may grieve over the loss of the life they had imagined for the child. They may suffer mental stress from having to juggle exponentially more healthcare appointments and caregiving responsibilities and medical decisions than a parent of a child who didn’t suffer a birth injury. Parents also notice a strain on family life, including impacts on work, finances, and relationships with siblings, extended family members, and friends.
4. Strength of the Evidence
A strong case requires robust documentation and expert testimony that clearly link the injury to a provider’s negligence. Your lawyer will have to produce medical records (e.g., prenatal records, labor and delivery notes, fetal monitoring strips, etc.) that help establish that the healthcare provider acted negligently. Your lawyer will also have to provide medical documentation of the child’s injuries post-negligence – in other words, diagnostic imaging, rehabilitation reports, occupational and physical therapy prescriptions, etc. Your lawyer will need to produce an expert report – that is expert testimony from a medical professional who reviewed the circumstances of the labor and delivery and formed an expert opinion as to the liability of the healthcare provider you sued. Your lawyer will have had to have supplied enough evidence to establish a deviation from the standard of care – that is, proof of what a non-negligence medical provider would have done in a similar situation. Records showing a deviation from standard medical care dramatically improve the case’s chances.
Legal Process Overview for Birth Injury Claims
Timeline expectations
Birth injury lawsuits typically take between two and four years to proceed to trial and/or resolve, sometimes longer. This process includes case evaluation and investigation, filing the Complaint (initiating the lawsuit), conducting discovery (exchanging information with the defendant, taking and defending depositions, and expert report submissions), and then either entering into a settlement or taking the case to trial. Birth injury plaintiffs should be aware that delays can occur due to court scheduling backlogs, availability of witnesses, or legal motions.
Statute of limitations
Each state has specific rules regarding how long you have to file a claim. Pennsylvania law, for example, allows you two years from when you knew or should have known that your injury was the result of the defendant’s medical mistake. However, children who are injured in Pennsylvania are treated differently from adults who are injured. Children have more time to file a lawsuit than the strict two-year timetable for adults. In Pennsylvania, the child can file a lawsuit up to two years after the child turns 18 (i.e., up until their 20th birthday). But you should never wait that long to consult a law firm. If your child suffered a medical negligence injury, for example, you’d need to contact a medical malpractice attorney as soon as possible to preserve your claims.
And while your child’s case doesn’t expire until your child turns 20, your case expires two years after you knew or should have known that your child’s injury was someone’s fault. So the two-year-to-file-a-lawsuit is a good general rule. And an even more cautious course of action would be to contact a medical malpractice birth injury attorney as soon as possible after your child’s birth injury. This is not just to protect your rights to sue as the parent, this is also to give your attorney enough time to process your claim! Your attorney has the arduous task of collecting, preserving, and analyzing countless records, reports, documents, photographs, videos, eyewitness statements, police records, driving records, workplace records, etc. All of this evidence needs to be gathered, secured, and reviewed carefully by your attorney so they can draft a Complaint that sets forth every possible cause of action and claim for damages for you and your child. Give your attorney the time they need to do all that – contact them ASAP.
A little side note on the statute of limitations: In some exceptional cases, the plaintiff can show that the defendants “fraudulently concealed” their negligence (for instance, if they persuaded the plaintiff that their child’s injury was not caused by their actions or inactions). In the case of fraudulent concealment, the plaintiff is granted two years from the time they discovered (or should have discovered) that the defendants’ actions or omissions could likely have caused their child’s injury.
How a Typically Birth Injury Settlement Is Paid
Settlements are typically paid in lump-sum payments and/or structured settlements (where the total sum is paid in installments over time). Special Needs Trusts (SNT) can also be a financial vehicle to help protect the core of the settlement funds for the lifetime of the injured child while preserving eligibility for essential public benefits such as Medicaid and Supplemental Security Income (SSI). There may be tax implications so it may be wise to contact a tax and/or financial advisor who is versed in tax law or a tax professional so they can help you avoid or minimize tax liability.
Importance of Specialized Legal Representation
Navigating a birth injury claim requires more than just legal knowledge—it requires an understanding of medicine, trauma, and long-term care. A specialized attorney with experience in birth injury litigation can make a substantial difference in the case’s outcome.
Finding the right attorney
Look for attorneys who focus exclusively or primarily on medical malpractice birth injury law, who have experience with cases similar to yours, who are willing to take the case to trial if necessary, and who have a healthy network of expert medical consultants.
Contingency fee arrangements
Most birth injury lawyers work on a contingency basis meaning you don’t have to pay them an hourly rate or pay for their expenses. Your attorney would only get paid if you win your case or reach a settlement.
Support Resources for Affected Families
Families may find the support they need in the following areas and programs.
Support groups and community connections
Connecting with others facing similar challenges can be an emotional lifeline. Look for local hospital-sponsored support groups, national organizations like the United Cerebral Palsy Foundation, and online forums for parents of children with birth injuries. These communities offer practical tips, emotional support, and shared resources.
Counseling services
Caring for a child with a birth injury can lead to anxiety, depression, or PTSD in parents. Access to counseling can help families cope, stay resilient, and make informed decisions.
Caregiver assistance programs
Caregiver assistance programs may offer respite care, in-home nursing services, transportation assistance, and services for siblings. A social worker or case manager can help families access these resources.
Balancing legal proceedings with care needs
Pursuing a lawsuit can be time-consuming and emotionally taxing. Having a clear legal strategy, support from family or professionals, and setting realistic expectations can help parents manage both the case and caregiving.
Legal Terms and Common Questions
Below are some essential legal terms you may hear in the context of a birth injury lawsuit:
- Negligence – Failure to provide reasonable care that results in harm.
- Plaintiff – The person or party bringing the lawsuit.
- Defendant – The person, institution, or provider being sued.
- Deposition – Testimony given under oath outside of court.
- Settlement – Agreement to resolve a case without a trial.
- Statute of Limitations – Legal deadline to file a lawsuit.
What Constitutes a Birth Injury?
A birth injury is any physical harm or damage sustained by a baby during the labor and delivery process. These injuries can range from mild bruising or temporary nerve damage to more severe and permanent conditions such as brain damage or paralysis. Birth injury examples usually fall into one of two main categories: brain injury or direct trauma to an external body part.
Brain injury
The brain, as with all organs, needs oxygen to thrive. When a baby’s brain is denied adequate levels of oxygen (sometimes referred to as “hypoxia” or “hypoxic-ischemic encephalopathy (HIE)”), brain damage can occur. This type of birth trauma can occur in a variety of ways, including:
- Pinched umbilical cord
- Umbilical cord wrapped around the baby’s neck
- Umbilical cord prolapse
- Infection that isn’t treated
- Ruptured vessel causing a brain bleed
- Abruption of the placenta
- Uterine rupture
- Excessive bleeding from the placenta
- Abnormal fetal position, such as the breech position
- Prolonged late stages of labor
- Unregulated blood pressure increases or decreases in the mother
- Failure to perform timely cesarean section
The above examples of brain damage can result in cerebral palsy, which impedes a person’s ability to perform cognitively, control bodily functions, control voluntary movements, maintain balance, and to move. The nomenclature derives from cerebral (having to do with the brain) and palsy (weakness or problems with muscles). Brain damage can result in delayed or stunted physical growth. It can also impede emotional growth and cause mental disabilities.
The length of time the brain was without oxygen usually determines the severity of the damage so, as with many examples of medical trauma, time is of the essence.
Direct trauma to an external body part
Some examples of birth trauma to external body parts include:
- Fractures of bones, including the skull
- Bone dislocation
The above injuries can often occur when doctors use excessive force in extracting the baby from the uterus or from the birth canal. They could, for example, twist the baby’s body in a way that causes injury or misuse the various delivery tools (forceps, vacuum extractor, scissors, clamps, specula, etc.).
Not falling in either of the above two main birth trauma categories is nerve damage. Nerves in various parts of the body can be damaged during childbirth (often from excessive pressure) and that can result in the child’s sensory or motor deficits.
What Constitutes a Medical Malpractice Birth Injury Claim?
Imagine that the errors made by the healthcare team that delivered your baby were preventable. They were avoidable, foreseeable and increased the risk of harm to the baby. They didn’t have to happen. When these medical errors that caused your baby’s injuries were avoidable, when they fall below the standard of care – that is, the care expected by standards of labor and delivery medicine – the errors constitute medical malpractice. Medical malpractice refers to professional negligence by a healthcare provider.
You are likely familiar with negligence as a general concept. Negligence is the failure to take proper care doing something. For instance, someone is driving a car while texting their friend and they swerve into oncoming traffic, causing an accident. In that case, the driver was negligent. They failed to drive carefully and caused someone else’s injuries.
Medical negligence is the same concept (that failure to take proper care), but in a professional setting, such as a hospital, an urgent care, an emergency room, etc., and/or by a professional healthcare provider (eg, a doctor, nurse, medical technician, hospital administrator, etc.).
In order to prove medical negligence in a birth injury case, your birth injury attorney must prove the following four elements:
1. DUTY
A professional duty is the first element in a birth injury claim. The attorney has to establish that there was a relationship between the doctor (or healthcare staff) and the mother and baby. In order to do this, they might ask: was this medical provider charged with taking care of the mother and baby? If the answer is yes, then duty has been established.
2. BREACH OF DUTY
The next element in the claim is breach of duty. Once the birth injury lawyer has proven that the medical professional had a duty to care for the mother and baby, the attorney must next prove that the medical professional breached that duty. In other words, they have to prove that the medical professional failed to provide the standard of care expected of them. An example of breach of duty is when the doctor fails to perform a cesarean section (c-section) when it is indicated that they should do so. A c-section is where the doctor strategically cuts the mother’s abdomen and uterus so as to remove the baby safely from the uterus. A c-section may be indicated, for example, where the mother has a medical condition that prevents her from safely delivering her baby vaginally and/or if the delivery needs to occur urgently due to a non-reassuring condition of the baby. If the doctor fails to perform the c-section where and/or when it is indicated, they have breached their duty of care to the mother and baby.
3. CAUSATION
The next element the birth injury attorney must prove is causation. If they can establish that the baby’s injury would not have occurred if it were not for the defendants’ actions or inactions, then they have proved causation. In other words, in order for the birth injury claim to be successful, the attorney must prove that the medical provider’s mistake – their negligence – led to the baby’s injuries and/or increased their risk of harm of sustaining their injuries. For example, in Pennsylvania, it’s not necessary to prove that the medical provider’s negligent actions were the only cause of the baby’s injuries. It’s only necessary to prove that the medical provider’s negligence increased the risk of harm to the baby.
4. DAMAGES
The last element the birth injury attorney must prove is damages. The attorney will need to establish that, as the result of the medical professional’s medical negligence, the baby suffered injuries. Common “damages” claims in birth injury lawsuits include cerebral palsy, Erb’s palsy, and brachial plexus.
Why Families Seek Compensation
When your child suffers from a birth injury, you and your family may suffer immense emotional and financial burdens. Filing a lawsuit against the medical team and establishment responsible for the injury can help you recover financially. Your birth injury lawyer will fight to get you the highest compensation to help you regain your financial footing.
What constitutes compensation?
There are two main categories of compensation: economic and non-economic. Economic damages are quantifiable, the exact figure can be established and/or reasonably projected in the future with documentation and inflationary data. Non-economic damages are not quantifiable – they are more of a subjective assessment of the sad consequences of a birth injury.
Read on for some of the types of compensation that your birth injury attorney can win for you:
–ECONOMIC
Future earnings. If your child’s birth injury will likely prevent them from working in any meaningful and gainful employment for their entire life, you may be able to collect compensation for the future earnings that your child cannot earn.
Medical expenses. This category of compensation is related to all of the bills from the hospital, doctors, physical therapist, pharmacy, and any other healthcare service or provider in the time leading up to, during, and after your child’s birth injury. This could be for neonatal intensive care, surgery, in-home skilled and/or attendant nursing care, physical therapy, occupational therapy, speech therapy, movement aids, and mobility equipment. These expenses project well into the future for a child throughout their entire lifetime and the costs are projected with the help of economic experts who project into the future with inflationary data.
Education costs. Families may need to hire an education advocate. They may need to pay for speech therapy, special mobility devices to navigate school entries and hallways, private transportation to school, or other education-related costs.
Burial/Funeral costs. If your child’s birth injury led to their death, burial and funeral costs may be compensated.
Lost income. Parents may have had to take an extended leave from work or leave their jobs altogether in order to care for their child.
–NON-ECONOMIC
Loss of companionship, comfort, and society. Sometimes referred to as “loss of consortium,” this describes the loss of the benefits of having someone in your life. For a parent of a child who suffered a birth injury, this may include the loss of the opportunity to witness certain milestones like walking, talking, riding a bike, and playing sports. Or the loss of emotional connection through words or hugs or facial expressions.
Loss of life’s pleasures. Also referred to as “loss of enjoyment of life” or “loss of quality of life,” this category refers to the loss of typical experiences an able-bodied person may enjoy. Perhaps it’s tasting ice cream on a hot summer day or riding a scooter to the neighborhood playground or baking cookies with a grandparent.
Pain and suffering. This category refers to the physical and emotional pain and suffering that someone undergoes as the result of the birth injury. Some pain is obvious because it’s accompanied by moans, groans, and/or winces; other pain is invisible because it’s experienced internally, but it is no less significant.
Humiliation/embarrassment. In some birth injury cases, a child is left immobilized or physically disabled and that can result in feelings of embarrassment.
Disfigurement. If your child suffers from disfigurement as the result of their birth injury, they can be compensated. Disfigurement could be the loss of a limb, scarring, misshapen body parts, etc.
It goes without saying that no amount of money will take away the pain a child and their family feels after a birth injury. But, with the right birth injury attorney, you can at least rest assured that you will get the most compensation possible for your case.
Emotional impacts of birth injuries
It’s clear that the financial toll of a child’s birth injury can be staggering. But what about the emotional toll a child’s birth injury takes on the child and their family? The child might be bullied or might feel excluded from physical activities his friends can do. The child might feel embarrassed by a physical deformity or by a speech impediment. The parents of the child might suffer emotional losses as well: the loss of the hopes and dreams the parents had for a care-free future for their child, the stress on the family relationships (parent-child, spouse-spouse, sibling-sibling), and the sadness and empathy the parents feel for the child.
Compensation from a birth injury lawsuit can provide the parents peace of mind because the settlement monies will make them feel more financially secure. They will also feel comforted at being able to afford good quality medical care. It will be reassuring to not have to weigh the costs and benefits of a certain healthcare decision. They can just opt for what is in the best interest of their child, without having to weigh whether they can afford to do so. This means that they can invest in quality resources for educational and developmental needs and buy whatever equipment and care is necessary for their child to achieve an optimal level of development and growth.
Why is compensation good for society at large?
It’s not an insignificant point that our legal system was designed to ensure that people are held accountable for their actions and inactions. It’s a cornerstone of a just legal system to hold someone responsible for their actions when those actions have harmed someone else.
Compensating a wronged party also has a deterrent effect. When individuals know that they might face legal and/or financial consequences for their negligence, they’re more likely to act responsibly. For instance, if a doctor knows that by failing to deliver a baby in a timely manner, causing harm to the baby, they could be subject to a birth injury lawsuit and held liable for the child’s and family’s injuries, that doctor will be more likely to exercise more caution in labor and delivery.
It’s also a matter of fairness. It’s only fair that the person who caused the injury, rather than the innocent victim, bears the cost. This prevents unjust enrichment, where a negligent person and/or institution benefits financially from their actions while the victim suffers.
Lastly, a legal system that enforces negligence liability promotes social stability by discouraging harmful behavior and resolving disputes through structured legal channels rather than personal retaliation. In other words, our system of laws raises us from our brute ancestors who may have “resolved” disputes by pummeling each other to more sophisticated humans who follow a set of rules to guide more civil (and less violent!) behavior.
Frequently Asked Questions
Can I sue if I signed a consent form before birth?
Your signature on an informed consent document prior to medical intervention establishes acknowledgment that healthcare providers have disclosed potential risks, expected benefits, and alternative treatment options; however, executing such documentation absolutely does not constitute a waiver of your legal remedies should negligent care occur. The informed consent process creates a record of disclosure, not a liability shield for substandard medical practice. Pennsylvania law specifically preserves a patient’s right to pursue compensation when healthcare providers deviate from accepted standards of care, regardless of consent forms. Our courts have consistently maintained that informed consent and medical malpractice represent distinct legal concepts, with the former never immunizing practitioners from liability for the latter.
How long do I have to file a claim?
In Philadelphia, Pennsylvania, you generally have two years from the date of discovery to file a birth injury claim. However, for minors, the statute of limitations is tolled until their 20th birthday. This means that a child with a birth injury has until their 20th birthday to file a lawsuit.
Will a lawsuit affect my relationship with the hospital?
Not necessarily. Many claims are handled by insurers without disrupting care.
How much does a birth injury lawyer cost?
Birth injury lawyers in Philadelphia typically work on a contingency fee basis, meaning they only get paid if they secure a settlement or win a case for you. The contingency fee is usually a percentage of the total settlement or judgment amount. This fee structure means you won’t pay any upfront fees or hourly rates.
Is a trial always necessary?
No. Birth injury cases typically proceed to trial when the family and medical providers cannot reach settlement agreement on compensation. At VSCP LAW, we recognize additional factors that drive cases to courtroom litigation: disputed liability where healthcare providers deny negligence, disagreement on the extent of damages or future care needs, insurance company resistance, or complex causation issues requiring expert testimony. When negotiation fails to deliver fair compensation for your child’s injuries, our Philadelphia birth injury attorneys stand ready to advocate forcefully at trial to secure the justice your family deserves.
What are my next steps if my child suffered a birth injury?
Contact a birth injury attorney right away. Taking action early improves your chances of securing meaningful compensation and ensures your child receives the care and resources they deserve. So, contact a birth injury as soon as possible. They will guide you as to what you need to do next.
Conclusion
Nothing will reverse time and undo the medical error that occurred. Nothing will reverse the birth injury that occurred. And no amount of money can undo the pain and immense financial burdens of a birth injury. But a fair birth injury lawsuit settlement can provide the means to support your child’s future. From lifelong medical care to educational accommodations, compensation empowers families to move forward with greater peace of mind. Partnering with a trusted legal team ensures that you receive the compensation you need to adjust to your new lives. Find your trusted birth injury lawyer at VSCPLaw.com.
