Birth Injury Lawsuit

In birth injury cases, there are typically two separate statutes of limitations to consider. The first is the parents' own claim — for their emotional distress, out-of-pocket medical expenses, and loss of companionship — which generally runs from the date of the injury or discovery, typically 2 to 3 years. The second and often more significant deadline is the child's own personal injury claim, which in most states is tolled (paused) during the child's minority. This means the child may have until age 18 or 19 — plus the applicable limitations period — to file their own claim. However, parents are strongly advised not to rely on infancy tolling and to consult an attorney immediately: evidence is lost over time, hospital records may be destroyed after mandatory retention periods, fetal monitoring strips may not be preserved, and witnesses' memories fade. Many birth injury attorneys recommend acting within 2 to 3 years of the injury regardless of tolling availability. Notable state rules: Michigan tolls for minors until age 18 (plus 1 year); Illinois tolls until age 8 for medical malpractice; New York tolls until age 18 (CPLR § 208); Florida has a 2-year parent deadline and 7-year child deadline (with exceptions); Texas has a strict 2-year adult deadline and 2-year child deadline from injury (generally no extended tolling in med-mal). Ohio has a 1-year adult deadline — among the shortest nationally — creating extreme urgency for families.

Cerebral palsy (CP) is a group of permanent neurological disorders affecting movement, muscle tone, and motor skills, caused by damage to the developing brain — most commonly during labor, delivery, or the early newborn period. It is the most common birth injury for which families pursue legal action, and it is the birth injury condition with the highest litigation volume nationally. CP ranges from mild (minor coordination difficulties with largely independent function) to severe (GMFCS Level V — complete dependence for all activities of daily living). When caused by oxygen deprivation during delivery — hypoxic-ischemic injury — CP may be accompanied by intellectual disability, seizure disorder, and communication impairments. The lifetime cost of care for a child with moderate to severe CP ranges from $1 million to $5 million depending on severity, functional classification, and geographic cost of care.

Erb's palsy is a paralysis of the arm caused by injury to the upper brachial plexus — the network of nerves running from the spinal cord through the neck and shoulder to the arm. In birth-related brachial plexus injuries, the nerve damage occurs when excessive lateral traction is applied to the infant's head and neck during delivery, stretching or tearing the C5 and C6 nerve roots. Erb's palsy is the most common brachial plexus birth injury and is frequently associated with shoulder dystocia deliveries where the delivering physician applies excessive downward traction to dislodge the shoulder. The affected arm typically presents in the 'waiter's tip' position — limp at the side, internally rotated at the shoulder, extended at the elbow, and pronated at the forearm. The severity ranges from mild stretch injuries (neuropraxia) with full recovery to complete nerve avulsion (root torn from the spinal cord) with permanent loss of arm function.

Hypoxic-ischemic encephalopathy (HIE) is brain damage in a newborn caused by insufficient oxygen (hypoxia) and blood flow (ischemia) to the brain during or around the time of birth. HIE is caused by events that deprive the fetal brain of oxygen — including placental abruption, cord prolapse, uterine rupture, prolonged late decelerations on fetal monitoring, failure to perform timely cesarean delivery, and maternal hemorrhage. HIE involves a dual-phase injury mechanism: the primary insult occurs during the acute oxygen deprivation event, and a secondary phase of injury — characterized by cellular apoptosis and inflammatory cascades — occurs 6 to 24 hours after the initial insult. This secondary phase is the target of therapeutic hypothermia (cooling therapy), which must begin within 6 hours of birth to interrupt the secondary injury cascade. HIE is the most common cause of neonatal brain damage leading to cerebral palsy and neurodevelopmental disability. A Michigan jury returned a $144 million verdict in an HIE birth injury case, the highest-profile recent birth injury verdict nationally.

Shoulder dystocia is an obstetric emergency that occurs when the delivering infant's anterior shoulder becomes impacted behind the mother's pubic symphysis after delivery of the head, preventing completion of delivery. Shoulder dystocia complicates approximately 0.2% to 3% of vaginal deliveries but is a common precipitating event for brachial plexus birth injuries, including Erb's palsy and more severe total brachial plexus injuries. The accepted standard of care for shoulder dystocia requires the delivering team to apply specific maneuvers in sequence — including the McRoberts maneuver (hyperflexion of the maternal thighs), suprapubic pressure, Rubin II maneuver, and, if necessary, delivery of the posterior arm or Zavanelli maneuver. Malpractice occurs when the team applies excessive lateral traction on the infant's head — which stretches the brachial plexus — instead of, or while applying, the correct dystocia maneuvers, or when risk factors for shoulder dystocia are not recognized and appropriate preparations are not made.