Ryan Zavodnick | September 7, 2025 | Birth Injury \ Medical Malpractice
For most parents, having a baby is an exciting time filled with love, dreams, and planning. Sometimes those dreams and plans are shattered when your child is diagnosed with an injury related to their birth. Whether it is immediately after the birth or a few weeks, months, or even years later, learning that your child has suffered an injury that will affect them for the rest of their lives can be devastating. You want justice for your baby. While some birth injuries are unavoidable, most are the result of medical negligence. You have the right to pursue a claim against the liable healthcare providers when they are. At Zavodnick & Lasky, our Delaware medical malpractice attorney may be able to review your case, connect you with medical experts, and negotiate a settlement in your claim. Call (215) 774-6467 to schedule a consultation and learn more about your legal rights and options for your child’s birth injury.
What Are Birth Injuries?
A birth injury is when a baby suffers physical damage of some kind during the labor and delivery process. Sometimes, birth injuries are unavoidable due to the strenuous nature of childbirth. However, most are the direct result of negligent medical care during labor and delivery and could easily be prevented. When these injuries result from negligent medical care, they are medical malpractice, and Delaware parents and injured children can pursue a claim for compensation against the liable providers.
The Cleveland Clinic indicates that clavicle (collarbone) fractures are one of the most common birth injuries, and other commonly broken bones include the upper arm and upper leg. Other common birth injuries include cerebral palsy, Erb’s palsy, and hypoxic-ischemic encephalopathy (HIE). Nerve injuries can cause facial nerve paralysis. Head and scalp injuries, ranging from mild injuries like bruising and forceps marks to more severe injuries like intracranial hemorrhages, are also common. Perinatal asphyxia, or being deprived of oxygen during birth, can cause brain damage ranging from mild to severe, depending on how long the baby was deprived of oxygen.
Common Causes of Birth Injuries
Birth injuries are often the result of medical malpractice. Medical malpractice means that the healthcare provider did not provide the same standard of care that another healthcare provider would have given in similar circumstances. When it comes to birth injuries, this can refer to the care the mother received while she was pregnant or to what happened during the labor and delivery process.
Pre-Birth Birth Injuries
While rare, there are actions taken or not taken by healthcare providers during a woman’s pregnancy that may result in birth injuries that are considered medical malpractice in Delaware. One of the most common of these rare instances is when a provider does not check whether the woman is pregnant, or knows she is pregnant, and prescribes a medication for a health condition that damages the fetus’s development.
Failure to conduct a genetic test that would have detected a birth defect may also be considered medical malpractice, resulting in a birth injury. Another potential birth injury during pregnancy is when the provider fails to tell the parents about the potential for a genetic abnormality. For example, if a provider knows the parents have had a child with a genetic condition and does not warn them that there is a chance all future children may also be born with that genetic condition, when a second or subsequent child is born with that condition, it may be considered a birth injury from medical malpractice.
Labor and Delivery Birth Injuries
Most birth injuries are the result of medical negligence during the labor and delivery process. The most common causes include:
- Pulling or twisting the baby excessively during a vaginal delivery
- Negligent use of birth assistance instruments such as vacuum extractors or forceps
- Negligently administering medications such as Pitocin for labor induction
- Not properly monitoring and responding to warnings on fetal heartbeat devices
- Failing to schedule and perform emergency cesarean sections (C-section)
While many assume that only the doctor delivering the baby would be liable, particularly when looking at these causes, it is essential to note that other providers may also be liable. This includes nurse practitioners, midwives, nurses, pharmacists, and physician assistants.
Delaware Statute of Limitations and Birth Injuries
18 DE Code § 6856 provides that injured individuals typically have two years after the cause of action arises to file their claim. In other words, they have two years from the date the medical malpractice occurred (not when it was reasonably discovered). In factual circumstances that prevent the individual or their family from being able to discover the medical negligence immediately, the statute of limitations is extended by one year. However, birth injuries are handled slightly differently because they occur to an infant. There are two critical aspects of the statute of limitations and birth injury claims for families to understand.
Two Claims: The Parents and the Child
Delaware handles claims for birth injuries a little differently than most other states and most other personal injury or medical malpractice claims. While most medical malpractice claims can only be filed once by all involved parties, birth injuries can have two claims. The parents of the injured child can assert their own separate lawsuit against the negligent providers. Parents can sue for compensation for expenses incurred in caring for their child until the child turns 18, and related pain and suffering.
The child can file their own separate lawsuit. They can sue for pain and suffering, future medical expenses, for expenses after they turn 18, and diminished earnings capacity over their adult lifetime if they are permanently disabled by their injury.
The Child’s Statute of Limitations Runs Longer
Because two claims can be filed (one by the parents and one by the child), there are two statutes of limitations. The parents’ claim is usually governed by the general two-year statute of limitations that generally begins from the child’s date of birth, since that is also usually the date of the injury.
The child’s claim is subject to an extended statute of limitations that gives them until their sixth birthday to file. Of course, a six-year-old cannot file the claim themselves, so their parent or guardian must initiate the claim for them. While the law does not require legal counsel to file medical malpractice claims for birth injuries, because of the complexities of being able to file two claims, different statutes of limitations, and other factors, it is recommended that parents consult with the medical malpractice attorney at Zavodnick & Lasky better to understand their legal rights, the legal process, and receive advice and guidance about their claim.
Requirements to Prove a Medical Malpractice Claim in Delaware
Delaware requires injured individuals or their families to prove three key elements to prove medical malpractice. If any of these elements are missing, the claim is unlikely to be successful.
Establish the Standard of Care
The first element required to prove medical malpractice concerning birth injuries is to establish the applicable standard of medical care under the circumstances. The standard of care is what any reasonable provider would do in the same situation. In other words, did the provider do what any other provider would have done?
This typically includes finding at least one other provider to act as an expert witness and testify that they would have done something different. This witness would then explain what they would have done in the circumstances so that a judge or jury understands what would have been expected.
Prove the Provider’s Actions Deviated From the Standard of Care
The next element is to prove the provider’s actions deviated from or failed to meet the standard of care established. This is where the injured individual shows that the provider made a mistake or was negligent. They need to show that the provider’s actions were not enough, were wrong, or intentionally harmed the baby.
Offer Evidence That Birth Injuries Were Directly Caused by the Provider’s Actions
Finally, the injured individual or their family must show that the birth injuries were directly caused by the provider’s actions. Even if the provider acted negligently, if their actions did not directly result in the injuries sustained, the lawsuit will likely fail. For example, if the provider was intoxicated while delivering the baby, but the baby is not injured, or is born with a genetic birth defect, a medical malpractice claim is unlikely to succeed. However, if the family can show that the provider’s intoxication caused them to use too much force with forceps and fractured the newborn’s skull, they are much more likely to win their case.
Affidavit of Merit Requirement
Delaware has a unique requirement that many other states do not have for medical malpractice claims. Injured individuals or their families must submit an affidavit of merit from a qualified medical expert before they can file a claim for birth injuries per 18 DE Code § 6853. If an affidavit of merit does not support the lawsuit, it will be automatically dismissed.
An affidavit of merit is a written opinion by another doctor in the same specialty certifying that the individual has reasonable grounds for the claim. In other words, just to file their lawsuit, the family must find another doctor who agrees that the providers were negligent and is willing to put that opinion in writing. While this may sound like an unreasonable or difficult requirement to meet, many families can meet this requirement by asking the doctor who diagnosed their child’s birth injuries or who gave a second opinion regarding the injuries. Alternatively, a medical malpractice attorney may be able to recommend a doctor who can examine the child and the associated medical records to provide an affidavit of merit.
Compensation for Delaware Birth Injuries
While money can never change what happened to their child, most parents want to know how much compensation they can expect. There is no set number or average amount of compensation. Medical malpractice, and birth injuries specifically, can be pretty complex with a variety of factors of varying weights.
Economic Damages
Economic damages are awarded in all successful medical malpractice cases. These are the damages that can be easily shown with evidence. For example, past medical expenses are easily proven with unpaid medical bills and receipts from bills that have been paid.
Other economic damages in birth injuries include future medical expenses, necessary medical equipment, required home modifications, and rehabilitation costs. These costs may be estimated by looking at medical records and invoices and forecasting or predicting them based on the expected costs of that care and the child’s needs. Economic damages are frequently the driving force behind settlements in these cases.
Non-Economic Damages
Non-economic damages are the non-financial losses the child or family has due to birth injuries. There is no set formula for determining these damages, and no evidence to easily prove their value. These damages include loss of quality of life, emotional distress, and pain and suffering. Without a precise formula and proof of their value, a jury has to decide what they believe is appropriate. This makes predicting how much a family may be awarded extremely difficult. An attorney may be able to offer guidance based on previous experience and judgments they have seen before, but they cannot promise the same results in future cases.
Strength of Your Case
A settlement occurs when the other party offers a payment that the child’s family accepts, while a judgment occurs when the case has been heard by a jury and the jury awards the child’s family an amount of money they believe is fair and appropriate based on what they heard. In both cases, the strength of the case is a critical factor. If the case is weak or if it is weakly presented, the other party or a jury is more likely to decide that the providers did nothing wrong and the child’s family receives nothing.
However, when the case is strong, and the hospital or provider believes that the child’s family has a high likelihood of a favorable verdict, they are more likely to settle. When they know that the child’s family is likely to win in court, they would prefer to offer a settlement rather than to risk a jury awarding a higher amount. Even if the hospital or provider does not settle, a strong case increases the chances of a favorable jury verdict.
Jurisdiction of Your Case
The specific jurisdiction within Delaware also impacts settlement and judgment amounts. The figures awarded can vary depending on where the claim is located. For example, New Castle County claims typically see higher judgments than more rural locations. However, families must remember that there is no average, no set number, and no guarantee of any financial award. The amount received, if any, is more dependent on the facts of the case than its location.
No Damage Cap
Delaware does not have a cap on damages in lawsuits for birth injuries. This means that juries can award significant amounts of money for the pain and suffering and other damages children and their families experience as a result of this kind of medical malpractice.
While this can be a good thing for potentially getting a larger settlement or judgment, families who use Medicaid or Tricare to pay the medical bills associated with the birth injury should be aware that their recovery for medical bills may be only what was actually paid by Medicaid or Tricare, rather than the actual amount billed. This does not apply to every case, so families should consult with an attorney to learn if and how this may affect their case.
How a Delaware Medical Malpractice Attorney Can Assist You
Medical malpractice in any form is wrong and can devastate an individual or family’s life. When that malpractice takes the form of birth injuries, it is particularly heartbreaking. A family’s dreams for their child may be destroyed, and the child’s life is changed forever before it has had a chance to truly begin. Holding the liable provider accountable for their actions and getting financial compensation may never make things right, but it can make life easier for the family. A Delaware medical malpractice attorney at Zavodnick & Lasky may be able to assist you with gathering evidence, finding expert witnesses including a doctor to provide an affidavit of merit, negotiating a settlement with the insurance company or the liable parties, and representing you in court if it becomes necessary. Call (215) 774-6467 to schedule a consultation and learn more about your legal rights and options for financial compensation after your child has been harmed by a medical provider at birth.
