When a child is profoundly injured or dies at birth due to medical negligence, everyone grieves. As anyone who had suffered this kind of injury knows, the emotional aspects are simply overwhelming. Birth injury lawsuits are also the most complex type of medical negligence cases around.

We asked Jeff Milman, an attorney who has been practicing medical negligence law for 26 years and member of the Advocate Law Group,, to explain how these cases work. According to Milman, “Usually it involves a tragedy to a family; especially if the child is born profoundly injured, whether it is brain injury or dystocia (an abnormal birth that can affect the child in many ways), and the child survives. It also affects the parents. It requires multiple experts. It requires a good sum of money to retain experts and prosecute and it requires a very, very, very experienced lawyer to handle these types of cases.”

Different types of birth injury cases

Birth injury cases are generally classified by two types. Milman explained, “The two we see primarily for those children that survive are number one, brain injury – or anoxic brain injury, what they call hypoxic-ischemic encephalopathy. The claims in those cases are usually that the physician or the medical staff failed to properly monitor the birth process via the fetal monitoring strips and order a caesarean section in a timely fashion.”

“The second types of cases we see are where there is a vaginal delivery and the physician and the staff failed to properly help the baby down the canal such that the baby is born with dystocia which can affect palsy and a host of other things. There are also death cases and those that involve improper genetic screening and of course, the baby is born with a genetic problem.”

Who can make a birth injury claim? Birth injury claims can be made on behalf of the child or by the parents. According to Milman, “The birth injury claim would be made on behalf of the minor if the minor is alive. One of the parents or both of the parents would be the guardian ad litem, or for the purposes of litigation, the guardian. Also, in California, if the parents observed negligence occurring, and in fact appreciated at the time there was negligence going on, they could also make a claim for what they call negligent infliction of emotional distress. But there are some hurdles to those and they’re very difficult to prove in court.”

If your child was profoundly injured or died as the result of medical negligence, contact an attorney whose practice focuses in this area of law for help. To contact an experienced attorney near you, please click here.