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Who Can File a Wrongful Death Claim for a Newborn?

In most states, the parents of a newborn or infant who dies as a result of medical negligence have legal standing to bring a wrongful death claim. The claim is typically brought by one or both parents as representatives of the deceased infant's estate. Some states also permit wrongful death claims for stillbirths — infants who did not survive delivery — though the legal standards for establishing a viable live birth and the applicable statutes vary significantly by state. Damages in a newborn wrongful death case include: funeral and burial expenses; medical expenses incurred before death (NICU care, resuscitation efforts); parental emotional distress and loss of companionship; and, in some states, the loss of the child's projected economic value over their expected lifetime. The emotional nature of these cases and the relatively limited economic damages (compared to a surviving child with lifetime care needs) mean that damages are often dominated by non-economic pain and suffering awards — which are subject to caps in some states.

Wrongful Death vs. Survival Action in Infant Death Cases

Birth injury cases resulting in infant death may involve two distinct legal theories pursued simultaneously: a wrongful death claim (brought by the parents for their own losses — grief, loss of companionship, funeral expenses) and a survival action (brought on behalf of the deceased infant's estate for the pain and suffering and medical expenses the infant experienced before death). The availability of survival actions for newborns varies by state, and survival damages are often limited in infant death cases because the infant's conscious awareness of pain may be difficult to establish. An attorney experienced in neonatal wrongful death cases will advise which claims are available and strongest in your state.

FAQ

Frequently Asked Questions

12 QUESTIONS

An APGAR score below 7 at 5 minutes after birth warrants evaluation for possible birth asphyxia or injury. An APGAR score below 5 at 5 minutes is a strong indicator of birth asphyxia and is frequently the first piece of evidence reviewed when a family suspects a birth injury. The APGAR scoring system evaluates five criteria — Appearance (skin color), Pulse (heart rate), Grimace (reflex irritability), Activity (muscle tone), and Respiration — each scored 0, 1, or 2. Scores are typically measured at 1 minute and 5 minutes after birth, and every 5 minutes thereafter if scores remain below 7. A persistently low APGAR score — particularly in combination with abnormal fetal monitoring strips, low cord blood gas values, and neurological symptoms — is the classic clinical picture of a birth asphyxia event. However, APGAR scores must be interpreted in context: a low score can result from prematurity, medication effects, or infection and does not by itself prove malpractice. An attorney reviewing the full medical record — not just the APGAR score — determines whether negligence contributed.

HIE cooling therapy — also called therapeutic hypothermia — is the standard of care treatment for newborns with moderate to severe hypoxic-ischemic encephalopathy. The treatment lowers the baby's core body temperature to approximately 33.5°C for 72 hours, interrupting a secondary wave of brain cell death that occurs 6 to 24 hours after the initial oxygen deprivation event. The critical medical and legal fact is that cooling therapy must begin within 6 hours of birth to be effective. If a hospital fails to initiate cooling therapy within this six-hour window — because staff did not recognize HIE risk factors, because the hospital lacked the equipment, or because of administrative delays — that failure constitutes a departure from the standard of care and is a direct basis for malpractice liability. Birth injury attorneys investigating HIE cases always request records documenting when cooling therapy was initiated, what the indication was, and whether there were preventable delays. Delayed or omitted cooling therapy directly correlates with worse neurological outcomes and higher damages.

The time limit to file a birth injury lawsuit — the statute of limitations — varies by state and depends on whether you are filing the child's claim, the parents' claim, or both. For the parents' own claims (emotional distress, out-of-pocket expenses), most states provide 2 to 3 years from the date of the injury or discovery of malpractice. For the child's personal injury claim, most states apply infancy tolling rules that pause the limitations clock during the child's minority — meaning the child typically has until age 18 or 19, plus the standard limitations period, to file. However, there are critical exceptions: Ohio has a 1-year adult deadline; Texas provides limited tolling for minors in medical malpractice cases; Illinois tolls for minors only until age 8 for medical malpractice. Do not rely on infancy tolling as a reason to delay — evidence is lost over time, hospital records have mandatory retention periods, and fetal monitoring strips may not be preserved. Consult a birth injury attorney as soon as possible after a suspected birth injury.

Yes — in most birth injury cases, families can and do sue both the delivering physician and the hospital (or hospital system) as separate defendants. The physician may be liable for their own negligent acts or omissions — such as failing to order an emergency C-section, applying excessive traction during a shoulder dystocia, or misreading fetal monitoring strips. The hospital may be independently liable for negligent credentialing of the physician, inadequate staffing of the labor and delivery unit, failure to maintain equipment (cooling therapy devices, fetal monitors), or direct nursing negligence by hospital employees. If the physician is an employee or apparent agent of the hospital, the hospital may also be vicariously liable for the physician's negligence. Having multiple defendants increases the likelihood of full recovery, particularly in jurisdictions where the hospital is a deeper-pocket defendant than an individual physician. A birth injury attorney will identify all potentially liable parties — including the hospital, the OB, the midwife, the anesthesiologist, and the NICU staff — at the outset of the case.

A birth injury qualifies as a malpractice case when: (1) a healthcare provider — physician, midwife, nurse, or hospital — failed to meet the accepted standard of care during labor, delivery, or the immediate newborn period; (2) that failure caused or substantially contributed to the child's injury; and (3) the injury resulted in measurable harm requiring compensation. Common qualifying scenarios include: failure to perform or timely perform an emergency C-section when fetal distress was evident on monitoring strips; misapplication of forceps or vacuum extractor causing skull fracture or brain injury; excessive lateral traction during shoulder dystocia causing Erb's palsy; failure to initiate HIE cooling therapy within 6 hours of birth; failure to diagnose and treat neonatal jaundice causing kernicterus; and NICU medication errors causing brain injury or death. Not every bad outcome is malpractice — the standard of care allows for reasonable clinical judgment — but when a clear deviation from ACOG or AAP guidelines contributed to a preventable injury, a malpractice claim is appropriate.

The average birth injury settlement is approximately $1 million or more, but individual values vary enormously based on the severity of the injury. Mild injuries — such as Erb's palsy with full recovery — may settle for $100,000 to $500,000. Moderate injuries with lasting impairment typically settle in the range of $500,000 to $2 million. Severe injuries requiring ongoing medical care and supervision settle or result in verdicts from $2 million to $6 million. Catastrophic injuries — profound cerebral palsy or severe HIE requiring lifetime institutional care — have settled or resulted in verdicts from $5 million to $20 million or more. A Michigan jury returned a $144 million verdict in an HIE birth injury case, the largest birth injury verdict nationally. Lifetime care cost projections prepared by a certified life care planner are the single most important factor in anchoring settlement value in catastrophic cases.

Yes. Parents can and routinely do bring birth injury lawsuits as the next friend or legal guardian of their minor child, pursuing the child's personal injury claim on their behalf. In addition, parents may bring their own separate claims for the emotional distress, out-of-pocket medical expenses, and loss of companionship they personally suffered as a result of the birth injury. These are two distinct legal claims with potentially different statutes of limitations. The child's claim — which typically benefits from infancy tolling rules in most states — is usually the larger of the two in catastrophic injury cases because it encompasses the child's lifetime care costs, pain and suffering, and lost earning capacity. Any settlement or verdict for a minor child's claim must be approved by the court to ensure the funds are managed in the child's best interest, typically through a structured settlement or court-supervised trust.

Birth injury attorneys handle these cases on a contingency fee basis — meaning you owe no fee upfront and the attorney's fee is a percentage of any settlement or verdict obtained on your behalf, paid only if the case is successful. Typical contingency fees in birth injury cases range from 33% to 40% of the recovery, with the exact percentage specified in the attorney-client agreement and sometimes regulated by state law. If the case is not successful, you owe no attorney's fee. Case costs — including filing fees, expert witness fees, medical record expenses, and deposition costs — are typically advanced by the law firm and reimbursed from the settlement. Birth injury cases require substantial expert witness investment, often $50,000 to $200,000 or more, so families benefit significantly from the attorney advancing these costs. Always confirm the fee structure in writing before signing a retainer agreement.

No — HIE is not always caused by malpractice. Hypoxic-ischemic encephalopathy can result from unpredictable obstetric events such as sudden cord prolapse, acute placental abruption, or unforeseeable uterine rupture where even prompt response cannot prevent injury. In these cases, the injury may be a tragic but non-negligent outcome. However, in many HIE cases, the oxygen deprivation event is preceded by warning signs — particularly non-reassuring or abnormal fetal heart rate patterns on electronic fetal monitoring — that required a clinical response the delivering team failed to provide. The legal question is not simply whether HIE occurred, but whether the healthcare team's response to developing fetal distress met the standard of care. Failure to perform emergency cesarean delivery despite Category III fetal monitoring patterns, failure to recognize and respond to late decelerations, and failure to initiate cooling therapy within 6 hours of birth are the most common malpractice theories in HIE cases. A birth injury attorney and independent OB expert review the complete fetal monitoring strip and clinical record to make this determination.

Signs of a birth injury in a newborn vary by injury type but may include: APGAR scores below 5 at 5 minutes after birth; seizures in the first 24–48 hours of life; abnormal muscle tone — either very stiff (hypertonia) or very floppy (hypotonia); difficulty feeding or weak suck reflex; one arm that is limp or held in an unusual position (suggesting brachial plexus injury or Erb's palsy); an unusual bulge on the head (caput succedaneum or cephalohematoma from delivery instrument use); jaundice that progresses rapidly without adequate treatment; and abnormal level of consciousness — the baby is unusually unresponsive, lethargic, or difficult to arouse. In the weeks and months after birth, delayed developmental milestones — not tracking visually, not rolling, not sitting at expected ages — can indicate neurological damage from a birth injury. If your newborn received HIE cooling therapy, was placed in the NICU, or had seizures in the first days of life, these are strong indicators that warrant a birth injury legal evaluation.

Birth injury lawsuits typically take 2 to 5 years from filing to resolution, though timelines vary significantly by jurisdiction, the complexity of the medical issues, and whether the case proceeds to trial or settles. The case begins with a medical record review and expert evaluation — which may take 6 to 12 months — followed by filing, discovery (depositions of the delivering physician, hospital staff, and expert witnesses), and pre-trial motions. Many birth injury cases settle before trial once expert reports are exchanged and the strength of the negligence evidence is apparent to both sides. When cases proceed to trial, birth injury trials commonly last 2 to 3 weeks given the complex medical testimony involved. Pediatric cases involving a child with severe cerebral palsy or HIE often require a life care plan and vocational expert testimony in addition to medical negligence experts, adding to the preparation timeline. Despite the length of the process, waiting to begin is costly — evidence deteriorates and witness memories fade.

The core evidence in a birth injury case consists of: (1) complete labor and delivery records, including fetal monitoring strips from the entirety of labor — these strips record every fetal heart rate pattern and contraction and are the most important document in most cases; (2) APGAR scores at 1 and 5 minutes, and at subsequent intervals if initial scores were low; (3) cord blood gas values (umbilical artery pH and base deficit), which quantify the degree of birth asphyxia at delivery; (4) nursing notes documenting the clinical course, any interventions, and communication between nurses and the physician; (5) HIE cooling therapy initiation records — documenting when cooling was ordered, when it began, and the indication; (6) NICU records for the immediate post-delivery period; (7) pediatric and pediatric neurology records; (8) MRI brain imaging at 3–5 days of life (the optimal window for HIE visualization); and (9) diagnosis records for the child's resulting condition — cerebral palsy diagnosis, developmental assessments, and therapy records. An attorney will obtain all of these records, have them reviewed by a qualified OB and neonatology expert, and determine whether the standard of care was met.

The full investigation

Part of the Birth Injury Investigation

Birth Injury LawsuitA birth injury is harm caused to an infant during labor, delivery, or the immediate newborn period as the result of medical negligence. Approximately 1 in 143 babies born in the United States experiences a birth injury. When a physician, midwife, hospital, or NICU staff member fails to meet the standard of care — by misreading fetal monitoring strips, delaying an emergency cesarean section, failing to initiate HIE cooling therapy within six hours of birth, or improperly using delivery instruments — the consequences can include cerebral palsy, Erb's palsy, hypoxic-ischemic encephalopathy (HIE), and permanent disability requiring a lifetime of specialized care. The average settlement for a catastrophic birth injury is $1 million or more; complex cases involving lifetime care for severe cerebral palsy or HIE can reach $10 million or beyond. Families should act promptly: while infancy tolling rules exist in many states, statutes of limitations vary significantly, and evidence — including fetal monitoring strips, hospital records, and APGAR score documentation — must be preserved.CASE OVERVIEW

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Who Can File a Wrongful Death Claim for a Newborn?

Wrongful Death vs. Survival Action in Infant Death Cases

Frequently Asked Questions

What APGAR score indicates a birth injury?

What is HIE cooling therapy and why does it matter legally?

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

Can I sue the hospital and the doctor separately for a birth injury?

What qualifies as a birth injury malpractice case?

What is the average birth injury settlement?

Can parents sue for a birth injury on behalf of their child?

How do birth injury lawyers get paid?

Is HIE always caused by medical malpractice?

What are the signs of a birth injury in a newborn?

How long does a birth injury lawsuit take?

What evidence is needed to prove a birth injury case?

Part of the Birth Injury Investigation