Labor and delivery are stressful and complicated events for both the mother and the child, but often, the gravity of the situation extends beyond the usual intensity, resulting in a birth injury. 

Birth injury happens before, during, and even after the delivery, resulting in a temporary or permanent physical or mental impairment in the child. The common locations for birth injury include the head, shoulders, and neck. In contrast, the less common sites include the abdomen, face, and lower body. 

Birth injuries in newborns have experienced a steady decline, with 2.6 per 1000 live deliveries in 2004 to 1.9 per 1000 live deliveries in 2012, thanks to better obstetrical techniques. However, they still are the leading cause of death in American infants, accounting for 20% of 20,000 deaths.

The major reason for birth injuries is the neglect of the on-duty medical team, including doctors, nurses, and other medical professionals. 

Therefore, the law empowers the parents of the child experiencing birth injury to start a legal proceeding against the wrongdoers. Below is the step-by-step process and a complete guide to filing a birth injury lawsuit. 

Type of birth injury lawsuits

Two major types of birth injury lawsuits exist: Medical Malpractice and Wrongful Death. Depending on your case’s facts, you can file either of them. 

Medical Malpractice

It occurs when the medical team or the doctors fail to keep a woman and her baby safe during pregnancy. The mistakes in delivery that can charge the medical team with legal proceedings may include but are not limited to the following:

  • Misuse of forceps or medical vacuum extractors
  • Not ordering a C-section when required
  • Using force improperly during delivery
  • Overlooking fetal distress
  • Failure to treat infections, like meningitis in the mother 

The birth injury lawsuit settlements for a malpractice case can differ; however, the average payout for children under one month is $1 million. To be successful in your medical negligence case and receive compensation, the plaintiff’s (infant) lawyer must be able to show a connection between the medical team’s negligence and the child’s death. 

Wrongful death claim

It happens when the medical team’s negligence results in the infant or mother’s death. The parents can file a case if the child is stillborn or dies after birth due to preventable mistakes by a doctor. 

Like medical negligence, plaintiffs filing a lawsuit for wrongful death must demonstrate a connection between a child or mother’s death and the medical staff’s mistake. The attorney often needs to hire an expert witness to affirm the errors during prenatal care and delivery. 

Step-by-step process of filing a birth injury case

Below is an overview of filing a birth injury lawsuit. States can vary in their specific requirements regarding filing the case, but the general procedure remains the same. 

1. Hire an experienced attorney

Hiring a seasoned attorney to help file the case must be the first step. Hiring an attorney is essential because birth injury lawsuits are often lengthy and complicated, requiring experts for better negotiation. A birth injury attorney brings the skills and resources needed to navigate the complex landscape of law. 

In most cases, birth injury attorneys provide free consultation for reviewing your case. They assess the worth and validity of your medical malpractice claim to start the case. 

If they agree to take on your birth injury lawsuit, you will have to sign a fee agreement—mostly a contingency fee plan— before starting the case preparation. 

2. Investigation and document review 

In the next stage, your attorney will start the investigation to find evidence to support and strengthen your case. Your attorney will gather the following details:

  • Medical records about the quality of care offered to the mother during pregnancy
  • Hospital records and notes regarding delivery 
  • Records about all the treatments and care the newborn received
  • Witness statements 

These records will highlight if the medical team missed any important diagnosis and treatment requirements and committed mistakes. Your attorney can hire medical professionals to interpret medical records during this stage. 

3. Settlement and negotiation

Most birth injury claims conclude without stepping into the courtroom; this arrangement is called out of court settlement. This arrangement helps both the doctors and the baby’s parents. The doctors and medical staff can avoid public humiliation, and the parents of the child can receive compensation much more quickly than a court trial. 

Birth injury attorneys often send a demand notice/package to the doctors and hospital responsible for the injury before filing a lawsuit. The notice includes a statement describing the events that led to the birth injury and how it is affecting the baby and the parents. 

The demand package/notice also includes records and documentation proving the claim. It ends with an amount for settling the matter out of court.

The responsible party may make a counteroffer or completely ignore it; consequently, the dialogue goes back and forth until an agreement is made on a settlement amount. In case the negotiations don’t result in a settlement agreement, the attorney likely files a lawsuit. 

4. File a birth injury lawsuit

Your birth injury attorney will file a birth injury lawsuit if both parties fail to agree on a payment or the deadline of the Statute of limitation is approaching. 

As a result of the lawsuit, the baby and the parents become plaintiffs, and the medical staff, including the doctors, nurses, and sometimes the hospital, become the defendants. 

Many courts give both parties a chance for negotiation and arbitration; hence, the negotiations for settlement continue. 

5. Discovery 

During this phase, lawyers from the accusing and defending sides look for evidence to support their claims, including exchanging information and conducting depositions and sworn testimonies. 

For instance, the defendant’s attorney may want to question the parents and family members of the affected child. Similarly, depending on their case’s requirements, the plaintiffs’ attorney may wish to have sworn and recorded statements from doctors, nurses, administration members, and so on. 

6. Court trial

During a court trial, the judge listens to both parties and looks at the evidence before reaching a verdict. However, it is very unlikely for medical malpractice cases to go to trial. The major reason is that these cases can easily receive sympathy from the jury members, resulting in much higher compensation than settlement amounts. Therefore, most defending parties try to conclude the case with a settlement. 

Plus, court trials are riskier, time-consuming, and stressful than out-of-source settlements. Nobody wants to reiterate the details of the day their baby experienced an injury. 

Additionally, trials always carry a risk that the judge may rule against you, resulting in no compensation whatsoever. 


Birth injury cases are lengthy and complex. However, it is essential to pursue such cases not only to seek justice for your baby but also to set an example for others who might have experienced similar situations. A birth injury case can provide compensation to meet the lifelong medical expenses of your child. In addition, compensation received through the lawsuit can also help you meet your financial needs if you must quit your job to look after your child.